Litigation Filed Over 2008 Removal Of The WV Northern Flying Squirrel From Protection as an Endangered Species

The West Virginia Northern Flying Squirrel was listed as endangered in 1985, and a 1990 recovery plan set out criteria for delisting. The previous presence of the squirrel on the list of endangered species was used by a variety of groups to oppose timber removal, wind projects and ski resort development in the West Virginia highlands area. In April 2008, the US Fish and Wildlife Service (‘USFWS”) removed the WV Northern Flying Squirrel from the list of endangered species under the Endangered Species Act.  

On November 12, 2009, Friends of Blackwater, the Wilderness Society and others sued the Department of Interior and USFWS in a Washington. D.C. federal court challenging the removal decision.  The suit cites the scientific community's objections to the delisting. Scientists say the surviving populations of the squirrel could constitute disconnected "sinks" destined for extinction. Plaintiffs say that the Carolina northern flying squirrel, a species with nearly identical threats, remains listed as endangered. The plaintiffs seek declaratory and injunctive relief setting aside the final delisting rule, which went into effect in August 2008. Additionally, they advance claims that the USFWS did not adequately address the impact that climate change will have on the squirrel's habit and on increased competition from the Southern Flying Squirrel. According to the environmental groups, the delisting decision also failed to consider the effects of logging, development and tree pests in the fragmentation and alteration of squirrel habitat in the Virginia and West Virginia Allegheny Highlands. 

With regard to the Bush administration, these groups argue Bush-era agencies disregarded the law to take the West Virginia Northern Flying Squirrel off the endangered species list. Plaintiffs say the Bush administration delisted the squirrel though the delisting criteria were not met. The Plaintiffs direct attention to the fact that despite 2004 agency testimony against delisting, the Bush administration in 2006 declared the squirrel's recovery completed though the criteria had not been met, the complaint states. It is asserted that the government merely dismissed the recovery criteria without explanation. 

As this matter continues to evolve and briefing occurs, we will keep you posted. 

 

This article was authored by Kathy G. Beckett, Jackson Kelly PLLC, (304) 340-1019 or kbeckett@jacksonkelly.com. For more information on the author see here.