Squirrels bite... Judge Sullivan in D.D.C. rejects FWS rule delisting the Virginia northern flying squirrel, giving teeth to previously stated delisting criteria from 1990 recovery plan
FRIENDS OF BLACKWATER v. SALAZAR, Civ. Action No. 09-2122 (EGS). --- F.Supp.2d ----, 2011 WL 1098964 (D.D.C., March 25, 2011). Link to opinion here.
SUMMARY. In 1985, the Virginia Northern Flying Squirrel, Glaucomys sabrinus fuscus, (the “Squirrel”) was listed as an endangered species under the Endangered Species Act (“ESA”) by the U.S. Fish and Wildlife Service (“FWS”). Over two decades later, in 2008, the FWS delisted the Squirrel… 73 Fed.Reg. 50,226 (Aug. 26, 2008). Plaintiffs brought this suit challenging the delisting… The Court concludes that the agency violated Section 4(f) of the ESA, 16 U.S.C. 1533(f), when it effectively revised its recovery plan for the Squirrel without employing notice-and-comment rulemaking. Accordingly, the Court hereby VACATES the Delisting Rule and REMANDS to the agency for further proceedings consistent with this Opinion.
The Virginia Northern Flying Squirrel, also known as the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus ) is a “small, nocturnal, gliding mammal” with “distinctive patagia (folds of skin between the wrists and ankles) ... supported by slender cartilages extending from the wrist bones; these plus the broad tail create a large gliding surface area and are the structural basis for the squirrel's characteristic gliding locomotion. Adults are dorsally gray with a brownish, tan, or reddish wash, and grayish white or buffy white ventrally.” Image from Friends of Blackwater and SaveOurSquirrel.org
EXCERPT RE: RECOVERY PLAN of 1990: in accordance with the requirements of Sec. 1533(f), the FWS issued an Appalachian Northern Flying Squirrels Recovery Plan (“Recovery Plan”). Ultimately, the objective of the Recovery Plan was to set forth a plan that, if accomplished, would “remove the Squirrel from the list of endangered and threatened species.” the agency first outlined three criteria necessary for downlisting the species from endangered to threatened status, stating that downlisting from endangered to threatened status will be possible when it can be documented that:
- squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies,
- sufficient ecological data and timber management data have been accumulated to assure future protection and management, and
- Geographic Recovery Areas are managed in perpetuity to ensure: (a) sufficient habitat for population maintenance/expansion and (b) habitat corridors, where appropriate elevations exist, to permit migration…
EXCERPT RE: DELISTING RULE OF 2008: After the requisite notice and comment period, the FWS promulgated the Delisting Rule on August 26, 2008. 73 Fed.Reg. 50,226. In particular, the decision to delist the Squirrel in 2008 appears to have been prompted principally by a conclusion that the Squirrel was not as rare as was previously believed. As the agency explained in the Delisting Rule: "At the time of listing, the Squirrel was thought to be an extremely rare and declining taxon that had disappeared from most of its historical range. We now know that occupancy of available habitat has increased and is much more widespread and well connected than formerly thought, and the geographic extent of the Squirrel's range approximates historical range boundaries.... Additionally, we have learned that the Squirrel has adapted to changes in the spruce ecosystem over the past hundred years, and can successfully exploit the existing habitat conditions throughout the landscape… Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan."
EXCERPT OF CORE ANALYSIS: Congress did not stop with a simple requirement to develop and implement a recovery plan. The ESA requires that each recovery plan shall, among other things, “to the maximum extent practicable ... incorporate in each plan ... objective, measurable criteria which, when met, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list” 16 U.S.C. 1533(f)(1)(B). In the event the agency finds it necessary to revise a recovery plan, Congress expressly provides a vehicle for doing so: the statute states that “the Secretary shall, prior to final approval of a new or revised recovery plan, provide public notice and an opportunity for public review and comment on such plan .” 16 U.S.C. 1533(f)(4)(emphasis added)... In light of the above statutory language and accompanying legislative history, the Court concludes that the agency's decision to set aside two of the criteria in its Recovery Plan constituted a revision to the Recovery Plan within the meaning of the ESA. Accordingly, the agency was required to employ notice-and-comment rulemaking.
The court is 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.” 16 U.S.C. 1533(f)(1)(B)(ii). Here, no one contests that the original criteria were objective and measurable when they were adopted as part of the Recovery Plan. The first criterion, for example, called for the agency to down-list or delist only when it could be documented that “squirrel populations are stable or expanding (based on biennial sampling over a 10-year period) in a minimum of 80% of all Geographic Recovery Areas designated for the subspecies.” AR at 15092. Instead of applying this Recovery Plan criterion, however, the agency now takes the position that the intent of this criterion can be met with persistence data rather than population data because, according to the agency, the “intent of this recovery criterion was to document that populations are robust.” AR at 37. Using “robust population” as a criterion does not satisfy the statutory requirement that the recovery plan criteria be “measurable” and “objective” ... At the very least, the alteration of the first and third criteria in this manner is a revision to the recovery plan that ought to have been subjected to public notice and comment, as required by Sec. 1533(f)(4).
EXCERPT RE: REMEDY: FWS failed to comply with unambiguous provisions of the ESA, and the Court is not inclined to speculate what the consequence of a properly revised recovery plan will be on the status of this species. Furthermore, as this Court previously held in Humane Society v. Kempthorne 579 F.Supp.2d 7, 21 (D.D.C.2008) “the ESA's preference for protecting endangered species counsels strongly in favor of vacating the Delisting Rule while FWS revisits its statutory interpretation.” Id. (citing NRDC v. U.S. Dep't of the Interior, 275 F.Supp.2d 1136, 1145 (C.D.Cal.2002)). The Court therefore will vacate the Delisting Rule and remand it to the agency for further proceedings.
KEITHINKING: In other delisting decisions, FWS has adopted similar reasoning, emphasizing the non-regulatory nature of a recovery plan and rejecting some of the objective criteria. See, e.g. Maguire Daisy discussion by ESA blawg. This decision threatens that decision (and others) and suggests a return to previous days when, as one ESA blawg reader explained, "You had to meet recovery plan criteria more or less to the letter."