Court Holds That Fish and Wildlife Service Is Required to Amend Recovery Plan Before Delisting Species
Posted in Delisting

In a decision that underscores the regulatory importance of recovery plans, the United States District Court for the District of Columbia invalidated the delisting of the Virginia northern flying squirrel on the grounds that the delisting rule modified delisting criteria in the recovery plan for the squirrel. Friends of Blackwater v. Salazar No. 09-2122 (D.D.C. March 25, 2011). The Court concluded that the Service violated section 4(f) of the Endangered Species Act (ESA) (requiring notice and comment on recovery plans) by relying on criteria to support delisting that varied from the criteria in the adopted recovery plan.

The court rejected the Service’s argument that the recovery plan merely provided guidance and that the Service could delist a species based on the factors for listing and delisting in section 4(a) of the ESA without first amending the recovery plan. Recovery plans are often ignored by the regulated community. This decision is a reminder that recovery plans have real world consequences.

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Tags: Delisting
  • Robert D. Thornton

    Robert Thornton specializes in advising state and regional infrastructure authorities on environmental issues regarding large infrastructure projects. He has successfully defended more than $12 billion in regional ...

Nossaman’s Endangered Species Law & Policy blog focuses on news, events, and policies affecting endangered species issues in California and throughout the United States. Topics include listing and critical habitat decisions, conservation and recovery planning, inter-agency consultation, and related developments in law, policy, and science. We also inform readers about regulatory and legislative developments, as well as key court decisions.

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