Court reverses removal of flying squirrel from endangered list 

CHARLESTON, W.Va. – A federal judge has reversed the U.S. Interior Department’s decision in 2008 to take the West Virginia northern flying squirrel off the endangered species list.

U.S. District Judge Emmett G. Sullivan, in Washington, D.C., ruled that agency officials tried to essentially rewrite their own recovery plan for the squirrel without subjecting such changes to required public review and comment.

In a 30-page decision issued Friday, Sullivan sided with the Friends of Blackwater and other groups that filed suit in 2009 over the delisting decision made by the U.S. Fish and Wildlife Service.

Sullivan concluded that the service failed to follow its own recovery plan for the squirrel and instead based its August 2008 removal of the squirrel from the endangered species list on other criteria. The law requires delisting decisions be based on recovery plans, and those plans cannot be revised without public input, the judge said.

Jessica Almy, a lawyer for conservation groups, said the decision is important not just for the flying squirrel, but for nationwide proper implementation of endangered species requirements.

“The ruling means that scientifically based recovery criteria for endangered and threatened species, once having been adopted in the Fish and Wildlife Service’s formal recovery plan, cannot be ignored due to political motivation or simple bureaucratic expediency – in the Service’s haste to remove a species from the protections of the act,” Almy said.

Vanessa Kauffman, a spokeswoman for the Fish and Wildlife Service, said her agency is reviewing the ruling and declined further comment.

Formally called the Virginia northern flying squirrel but better known as the West Virginia northern flying squirrel, the subspecies is as old as the mastodons. It lives in clusters atop the highest Appalachian peaks of West Virginia and adjacent Highland County, Va. About 10,000 years ago, it became isolated from other northern flying squirrel species when ice sheets covering North America receded.

The so-called flying squirrels do not actually fly, but glide using a furry, sheetlike membrane along the sides of their bodies.

Between the 1880s and the 1940s, industrial logging destroyed much of the high-elevation spruce and northern hardwood forests where the squirrel lived. Biologists believe that a few resilient populations survived in small, scattered patches of forest.

In July 1985, Interior Department officials placed the squirrel on the endangered species list, citing primarily declining habitat.

Five years later, Fish and Wildlife Service officials published a recovery plan that goals including a “stable or expanding population,” timber management to assure future protection, and sufficient habitat, including corridors to allow squirrel migration. Populations were to be based on biennial sampling, and a finding of stable and increasing populations in 80 percent of all recovery areas.

An original delisting report had recommended against the move, as had two of the three outside experts brought in by the Interior Department to review the matter.

Agency officials, though, decided to use different criteria, primarily their conclusion that the squirrel was not as rare as previously believed.

But, as the judge observed, agency officials did not use – as they were required to by their own recovery plan – population trend data when delisting the squirrel.