(CN) – The West Virginia northern flying squirrel should not have been removed from the endangered species list, a federal judge in Washington, D.C., ruled.
In 2008, the Department of the Interior said the squirrel did not need protection under the Endangered Species Act because its population had recovered after 13 years of inclusion.
Friends of Blackwater led a challenge against Interior Secretary Kenneth Salazar and Rowan Gould, acting director of the U.S. Fish and Wildlife Service. The environmentalists claimed that the agencies should have based their conclusion to delist the squirrel on more than meeting the “intent” of recovery plan criteria, as described in the Endangered Species Act of 1973.
The act outlines five criteria for an animal to be placed on the Endangered Species List: (1) destruction or modification of habitat, (2) overutilization of the species for commercial, recreational, scientific or educational purposes, (3) disease or predation, (4) inadequacy of existing regulatory mechanisms and (5) other natural or manmade factors.
At least once every five years, the secretary of the Interior must conduct a review of all endangered and threatened species to see if they still meet the criteria for being listed.
The review for the squirrel began in 2003. In April 2006, the agency recommended delisting.
The Fish and Wildlife Service decided not to evaluate the squirrel based on the agency’s 1990 recovery plan, saying it was outdated and generalized its recovery actions for the West Virginia Northern flying squirrel and the Carolina Northern flying squirrel, a similar species. Instead the agency relied only on criteria stated by the act. In doing so, it abandoned two of the four criteria contained in the plan.
Without relying on population data, Fish and Wildlife cited evidence of the squirrel’s “persistence” to survive in changing habitats. It had also found that “79 percent of the squirrel’s habitat is likely to remain protected from logging and other disturbances for the foreseeable future,” and said all the land in the recovery plan is predominantly in public ownership.
U.S. District Judge Emmet Sullivan ruled, however, that the agencies did not fulfill the act’s purpose in reaching their conclusions.
The government had argued that recovery plans exist to “establish guidance and direction that can be meaningfully utilized and implemented to recover a species,” but the court noted that the act clearly states that recovery plans must “develop and implement” actions to restore species populations, not just avoid species elimination.
“Permitting the FWS to set aside two of the four criteria in its own recovery plan while taking the position that such an action was not a revision to the recovery plan, would render the provision requiring the agency to subject its revisions to public notice and comment meaningless,” Sullivan continued.
He added that the agency’s use of persistence data to determine the squirrel’s “robust population” did not satisfy the statutory requirement that the data be “measurable” and “objective.”
The court remanded the matter to Fish and Wildlife for further proceedings.