D.C. Circuit Hears Oral Argument on Flying Squirrel Appeal

On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals heard oral argument on whether the West Virginia Northern Flying Squirrel should remain protected by the Endangered Species Act (ESA).

The argument followed briefing on the government’s appeal of our victory on behalf of Friends of Blackwater and other conservation groups which restored ESA protections for the species. On appeal, the issue was whether the Fish and Wildlife Service was free to delist the squirrel without fulfilling the delisting/ recovery criteria the agency itself designated in squirrel’s recovery plan, or providing the public notice and an opportunity to comment on whatever new criteria the agency adopts.

On behalf of the plaintiffs, Jessica Almy argued that Congress specifically required development and implementation of delisting/ recovery criteria in species’ recovery plans to guide the agency’s determination of whether recovery has been achieved and the species should be delisted. Here, because the agency jettisoned the criteria in favor of less protective standards without allowing public notice and comment, the delisting was unlawful and the district court opinion should be affirmed. Read our brief here.