The U.S. Fish and Wildlife Service listed the West Virginia Northern Flying Squirrel as an endangered species in 1985. In 1990, the Service issued a recovery plan that was updated in part in 2001. This plan set forth various objectives for the recovery of the squirrel. However, in 2006, as part of a periodic 5-year status review, the agency delisted the squirrel. The delisting determination was based on new habitat modeling completed in 2006, completion of a forest plan amendment in 2006 with substantial provisions protecting the squirrel and its habitat from logging (the primary threat to the species), compilation of a 20+ year survey of population and range in 2005, and a complete reanalysis of squirrel persistence and distribution.
However, a coalition of environmental groups challenged the delisting decision claiming the delisting was not justified because all of the objectives of the recovery plan had not been met and some climate change models indicated that squirrel habitat will decrease substantially over the next 100 years. All of these claims were addressed in the agency’s response to comments. According to the Service, the new information noted above made the recovery plan obsolete and the climate change models were speculative and not best available science.
PLF filed an amicus brief in response to the challenge and defending the delisting decision. In an opinion issued today, the D.C. Circuit Court of Appeals agreed with PLF that the recovery plan was advisory only, and not binding on the agency in light of the significant change in circumstances.
The court upheld the delisting decision!