Appeals court overturns W.Va. flying squirrel decision

Posted on 08/20/2012

CHARLESTON, W.Va. -- A federal appeals court has ruled that the U.S. Fish and Wildlife Service was right four years ago when it took the West Virginia northern flying squirrel off the endangered species list.

The U.S. Circuit Court of Appeals for the District of Columbia on Friday overturned a lower court ruling that agency officials had wrongly tried to rewrite their own recovery plan for the squirrel without subjecting the changes to public review and comment.

A panel of judges voted 2-1 against the Friends of Blackwater and other groups that had won the March 2011 decision before U.S. District Judge Emmett G. Sullivan.

Voting to overturn the lower court were Judges Brett M. Kavanaugh and Douglas H. Ginsberg. Judge Judith Rogers filed a dissent. Kavanaugh and Rogers were appointed by President George W. Bush, while Ginsberg is a Ronald Reagan appointee.

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 with goals that included 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.

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.

The appeals court disagreed.

"A plan is a statement of intention, not a contract," the appeals court said. "If the plan is overtaken by events, then there is no need to change the plan; it may simply be irrelevant."

Reach Ken Ward Jr. at

or 304-348-1702.

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