By John McFerrin
The United States Court of Appeals for the District of Columbia has reversed a lower court and kicked the West Virginia Northern Flying Squirrel (Glaucomys sabrinus fuscus to Latin scholars) off the list of endangered species. Over the last five years the squirrel has been added to or taken off the list three times.
A little history
The U.S. Fish and Wildlife Service first placed the West Virginia northern flying squirrel on the endangered species list as an endangered species on July 1, 1985. At the time, the threats identified included: species rarity; habitat loss; human disturbance; and competition with, and transfer of, a lethal parasite from the more common southern flying squirrel.
In 1990, the Fish and Wildlife Service did a recovery plan covering the West Virginia northern flying squirrel. The recovery plan is a series of steps that the agency is supposed to take to help the species recover to the point that it can safely be taken off the endangered species list. If things went well, then the squirrel would first be moved to the less protective “threatened” listing. If things continued to go well, then it would be removed from Endangered Species Act protection altogether.
The historic range of the Squirrel is believed to correspond roughly to the distribution of old-growth red spruce and northern hardwood forests that existed prior to the extensive logging and accompanying fires that occurred at the turn of the 20th century in the Allegheny Highlands, a section of the Appalachian Mountains extending into West Virginia and Virginia. This historic range encompassed an estimated 500,000 to 600,000 acres of old-growth red spruce forests.
This habitat was important in both the decision to put the squirrel on the list and in the recovery plan. It got on the endangered species list in part because its original habitat had changed so that it was restricted to isolated areas at high elevations separated by vast stretches of unsuitable habitat. Its remaining habitat was under pressure from human disturbance such as logging and development of skiing or other recreational activities.
In the recovery plan, the Fish and Wildlife Service agreed not to delist the squirrel until it had determined that the existence of the high elevation forests on which the squirrels depend is not itself threatened by introduced pests, such as the balsam wooly adelgid or by environmental pollutants, such as acid precipitation or toxic substance contamination.
In 2008 the Fish and Wildlife Service took the squirrel off the endangered species list. (In the jargon of the agency, it “de-listed” the squirrel.). At the time, it said that the recovery plan has been sufficiently successful that the squirrel could be removed from the list. The delisting meant that the squirrel would have to continue to survive as best it can without the special protections available to species which are on the endangered species list.
In kicking the squirrel off the list, the Fish and Wildlife Service did not contend that it had followed the recovery plan. The plan had specific goals and requirements for distribution of the squirrel, requirements that had not been met. Instead, it said that it had followed the general intent of the recovery plan and that the squirrel appeared to be holding its own.
In March, 2011, the United States District Court reversed the Fish and Wildlife Service. The Court held that following the intent of the original recovery plan was not enough. It is not sufficient to generally follow plan. The Endangered Species Act specifically calls for a plan setting out what the agency intends to do and how it will measure results. If it wants to change the plan or otherwise not follow the plan, the agency must announce that it is changing the plan and then follow a revised plan.
Neither is it sufficient, the Court ruled, for the species to hold its own. The goal of the Endangered Species Act is that species thrive, not just slow down on its road to extinction.
What just happened
In August, 2012, the Court of Appeals reversed the District Court, effectively reinstating the Fish and Wildlife Service’s decision to kick the squirrel off the list. The decision turned largely on the question of what a recovery plan really is. The District Court had held that a recovery plan had to be followed before a species could be delisted. If the Fish and Wildlife Service changed its mind and thought that a different recovery plan would work better, it could change the plan but so long as it was in place the Fish and Wildlife Service could not kick a species off the list without following it.
The Fish and Wildlife Service, on the other hand, said that the plan was not binding. Even if it never followed the plan, it could still delist a species if it thought it had made a recovery.
The Court of Appeals agreed with the Fish and Wildlife Service. In federal courts it is the practice (backed up by legal precedent) to defer to the interpretations of statutes and regulations by the agency. If an agency has always taken the position that a regulation means one thing, a court will adopt that interpretation unless there is some language in the statute or regulation to the contrary.
Under this approach, if the Fish and Wildlife Service thinks that recovery plans are guides, not mandates, then the Court will assume that this is the correct interpretation of the law.
There was a dissenting opinion. One of the three judges thought that the Fish and Wildlife Service was required by law to follow the recovery plan before delisting the squirrel. She also noted that the Fish and Wildlife Service relied upon data that showed that the squirrel was “persisting”, meaning that it was still here, not yet extinct. She thought that the law required that it not just persist but recover.
Vocabulary lesson of the day
Even if they are called flying squirrels, they don’t actually fly. They stretch out the folds of skin that stretch from front legs to hind legs and glide. These folds are called the patagia, from the Latin patigium, meaning the border of a tunic. The singular form was adopted directly from the Latin as the singular patagium; patagia is the plural form.