Sustained Outrage

Just in time for West Virginia Day celebrations on Monday, the West Virginia northern flying squirrel is going back on the federal endangered species list.

The U.S. Fish and Wildlife Service is set to announce the action in a notice to be published in tomorrow’s Federal Register. Here’s a copy of the notice.

Agency officials took the action in response to a federal judge’s ruling in March that they had improperly removed the squirrel from the protected list.

Bethany Cotton, a lawyer with the Center for Biological Diversity, one of the organizations that sued over the listing, said:

Threatened by logging, development and climate change, the West Virginia flying squirrel needs the protections of the Endangered Species Act to survive and recover. From now on, the Fish and Wildlife Service must follow its own science-based recovery plans before taking protections away from endangered species.

In a press release, the center explained:

The Service prematurely took the squirrel off the endangered species list in 2008. Several groups challenged that decision in 2009, including the Center for Biological Diversity, Friends of Blackwater, the Wilderness Society, Heartwood, the Southern Appalachian Forest Coalition and WildSouth. A federal judge sided with the conservation groups earlier this year and the Service today announced its compliance with his order to restore protections for squirrel.


The Service is required to develop recovery plans for all listed threatened and endangered species. Recovery plans are typically developed by teams of scientists with expertise on the species and habitat in question; they outline science-based criteria for determining when a species can be considered recovered. In his March decision overruling the agency’s decision to remove endangered species protections for the squirrel, U.S. District Judge Emmet Sullivan held that the Service had violated the Endangered Species Act by removing protections before the recovery plan’s criteria had been met.

Ruling that recovery plans must be followed in any agency decision to downlist or delist a species from the Endangered Species Act, the court wrote that it was not persuaded that “the agency’s decision to meet only the ‘intent’ of its Recovery Plan criteria for the Squirrel complied with the ESA. The statute unambiguously requires that criteria must be ‘objective’ and ‘measurable.’ ” The court also held that revisions to recovery plans are subject to public notice and comment rulemaking.