Activists Lose Bid to Protect Flying Squirrel

     (CN) – The West Virginia northern flying squirrel lost its spot on the endangered species list again, with the D.C. Circuit touting the discretion of the U.S. Fish and Wildlife Service.
     Check out Courthouse News’ Environmental Law Review.
     A federal judge had vacatedthe delisting last year, agreeing with Friends of the Blackwater that the action violatedthe Endangered Species Act.
     In delisting the squirrel in 2008, the service had said that nesting-box data showed that the species was not declining in population, and that “habitat trends [were] moving in a positive direction in terms of forest regeneration and conservation.”
     A split panel of the D.C. Circuit said that the agency did not need to meet every goal in its recovery plan before delisting an animal.
     “The service fairly analogizes a recovery plan to a map or a set of directions that provides objective and measurable steps to guide a traveler to his destination,” Judge Douglas Ginsburg wrote for the majority. “Although a map may help a traveler chart his course, it is the sign at the end of the road, here the five statutory factors indicating recovery, and not a mark on the map that tells him his journey is over. Moreover, as with a map, it is possible to reach one’s destination – recovery of the species – by a pathway neither contemplated by the traveler setting out nor indicated on the map.”
     Regulators determined here that measuring squirrel population is too costly because the squirrels are very difficult to catch. Instead, the agency measured the squirrel’s “persistence” by capturing squirrels at various sites over multiple generations.
     In its final rule delisting the squirrel, the service said that persistence data across 80 percent of the squirrel’s range was “not indicative of a declining population.”
     “The Friends have not shown the service’s judgment that a project of that magnitude was simply too difficult and too costly for the agency to undertake was arbitrary and capricious,” Ginsburg wrote. “Therefore, we conclude the service has met any burden it may have to account for its departure from the criterion it contemplated when it developed the recovery plan in 1990.”
     Judge Judith Rogers split from the panel to complain wrote that their decision “jettisons the protections in the ESA [Endangered Species Act] for endangered and threatened species and leaves the secretary (and the FWS [Fish and Wildlife Service]) more insulated and less informed than Congress contemplated in strengthening the ESA in 1988.” (Parentheses in original; brackets added.)
     “The secretary’s decision to delist the squirrel on the basis of its ‘persistence’ – that is, its bare survival – is a statutorily insufficient basis for delisting,” Rogers wrote.

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