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Friends of Blackwater v. Salazar

ELR Citation: 41 ELR 20127
Nos. No. 09-2122, (D.D.C. , 03/25/2011)

A district court vacated the FWS' removal of the Virginia Northern Flying Squirrel from the list of endangered species. Instead of applying the criteria set forth in the squirrel's recovery plan when it issued the delisting rule, the FWS conducted an analysis based on the five listing factors contained in ESA §4(a)(1), concluding that it need only meet the "intent" of the criteria laid out in the recovery plan. In so doing, the FWS effectively revised its recovery plan for the squirrel without providing notice and comment in violation of ESA §4(f). When the FWS establishes recovery criteria for a species or subspecies in a formal recovery plan, the agency is required to abide by those criteria in making status determinations unless it amends the recovery plan in the manner ordained by the ESA. Here, the FWS' decision to set aside two of the criteria in its recovery plan constituted a revision to the plan within the meaning of the ESA. The court therefore vacated and remanded the delisting rule.