Time for Judicial Enforcement of ESA Recovery Plans?... "When [Squirrels] Fly"

Abstract

In August 2008, the U.S. Fish and Wildlife Service published a final rule in the Federal Register officially removing the West Virginia northern flying squirrel from the List of Threatened and Endangered Wildlife, approximately twenty-three years after it was originally listed. The flying squirrel’s delisting proved quite controversial and many environmentalists challenged the agency’s decision for violating of the Endangered Species Act. The D.C. Circuit, in Friends of Blackwater v. Salazar, nevertheless upheld the FWS’s delisting decision, finding that ESA recovery plans merely provide non-binding guidance. This Comment argues that although the D.C. Circuit decided the case correctly on the basis of proper statutory interpretation and adherence to common law precedent, the practical implications of this decision create significant cause for concern. Congress should therefore amend the ESA to impart legal enforceability on recovery plans if it wishes provide endangered species with a heightened degree of protection.