In a recently issued decision (pdf), a U.S. District Court overruled a Fish and Wildlife Service (FWS) decision to delist the West Virginia Northern Flying Squirrel because the delisting rule was not consistent with the species’ recovery plan and the recovery plan can only be modified after notice and comment rulemaking. Friends of Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2010).

The squirrel was first listed (pdf) in 1985. In 1990, FWS issued a recovery plan (pdf) outlining four criteria to be met for delisting. In 2006, FWS conducted a species review (pdf) that recommended delisting. That recommendation was not based on the recovery plan criteria but on a reconsideration of the five criteria set out in section 4(a)(1) of the Endangered Species Act (“ESA”) for listing a species. The final delisting rule (pdf) was published in 2008.

Plaintiffs, a group of six environmental organizations and one individual, argued that when FWS establishes recovery criteria for a species in a formally adopted recovery plan then FWS is required to abide by those criteria in any delisting decision until such time as the recovery plan is amended. FWS countered that the ESA says a species can be delisted based on reconsidering the five ESA factors used to list a species and that a recovery plan is only a guidance document.

Rejecting FWS’ argument, the Court first found the ESA requires FWS to “develop and implement” recovery plans.  Thus, if the recovery plan sets out delisting standards, FWS must consider both those standards as well as the five statutory listing standards. The Court next found the FWS delisting rule had ignored two of the recovery plan delisting standards. The Court held that recovery plans can only be amended by notice and comment procedures and FWS had not done so. FWS’ argument that it had complied with the intent of the recovery plan fell on deaf ears.

The Court vacated the delisting rule until the delisting was done in compliance with the delisting factors and the recovery plan. If FWS wants to change the factors in the recovery plan, it must do so using notice and comment procedures.  FWS has reinstated (pdf) the listing rule.