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For Immediate Release, June 16, 2011

Contact: Bethany Cotton, (202) 591-5215

Endangered Species Act Protection Reinstated for West Virginia Northern Flying Squirrel

WASHINGTON— As a result of a lawsuit brought by a coalition of conservation groups, the U.S. Fish and Wildlife Service announced today it is restoring endangered species protection to the West Virginia northern flying squirrel.

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

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.

Background
The West Virginia northern flying squirrel is a small, nocturnal mammal that displays impressive aerial acrobatics using the skin flaps under its arms to soar between trees. Flying squirrels are the oldest line of modern squirrels surviving on the planet, having first appeared 30 million years ago.

The species lives in the high-elevation hardwood forests of West Virginia and part of Virginia and was first protected as endangered under the Endangered Species Act in 1985. Fish and Wildlife issued a recovery plan for the species in 1990 — and amended it in 2001 — setting specific criteria for downlisting or delisting the flying squirrel. In 2008, the Service delisted the squirrel over the objections of scientists and conservation groups. In 2009 the coalition of environmental organizations filed suit challenging the delisting; and on March 25, 2011, the court vacated the delisting decision and restored full Endangered Species Act protection to this unique species.

The conservation groups were represented by Jessica Almy, Eric Glitzenstein and Howard Crystal of the Washington, D.C., law firm Meyer, Glitzenstein & Crystal and by Bethany Cotton of the Center for Biological Diversity.