Recovery Plan Not Binding On Delisting Decisions

Friends of Blackwater, et al. v. Kenneth Lee Salazar , No. 11-5128 (D.C Cir. Aug. 17, 2012)

On August 17, 2012, the DC Circuit Court overturned a district court ruling that the Fish and Wildlife Service violated the Endangered Species Act (16 U.S.C. §1531 et seq.) by delisting the West Virginia Northern Flying Squirrel when several criteria in the squirrel's recovery plan remained unfulfilled. The court instead held that a recovery plan adopted pursuant to the ESA is not binding on the Secretary of the Interior when making delisting decisions.

The squirrel is native to West Virginia and Virginia, with its habitat historically consisting of the spruce-fir and northern hardwood forests of the southern Appalachian Mountains. In 1985, the Service determined that the squirrel was endangered, based on scientists' documenting only ten living squirrels, and suggested that although the squirrels' population "may have been declining since the Pleistocene, ․ [t]heir decline ha[d] probably been accelerated through clearing of forests and other disturbances by people." 50 Fed.Reg. 26,999, 26,999 (July 1, 1985).

The Service created a Recovery Plan for conservation and survival of the squirrel pursuant to Section 4(f) of the ESA. The Recovery Plan established the following criteria for determining when the squirrel would be removed from the list of endangered species:

1. Squirrel populations are stable or expanding in a minimum of 80% of all Geographic Recovery Areas (GRAs) designated for the subspecies;

2. Sufficient ecological data and timber management data have been accumulated to assure future protection and management;

3. GRAs are managed in perpetuity to ensure: (a) sufficient habitat and (b) habitat corridors; and

4. The existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests or by environmental pollutants.

In 2002, the Service hired a biologist to study whether the squirrel should be delisted. A report was published in 2006 that concluded that the Recovery Plan, which had been created in 1990, did not have up to date recovery criteria, and that the squirrel did not meet the ESA's definition of endangered or threatened because it "persist[ed] throughout its historic range." Based on that conclusion, the Service proposed to delist the squirrel. The Service further stated that the Recovery Plan was not binding in terms of delisting decisions because its criteria do not specifically address the...