In a split decision, a D.C. Circuit Court of Appeals panel has ruled that the U.S. Fish and Wildlife Service (FWS ) can remove a species from the list of endangered species based on scientific evidence that the species’ survival is no longer threatened, regardless of whether recovery plan targets are met. Friends of Blackwater v. Salazar, No. 11-5128 (D.C. Cir. 8/17/12). So ruling, the court overturned a district court decision which held that the Endangered Species Act (ES A) requires the implementation of a recovery plan before a species may be delisted. Blackwater v. Salazar, 772 F. Supp. 2d 232 (D.D.C. 2011).  

The case involved the FWS delisting of the Virginia northern flying squirrel in 2006 based on criteria in section 4(a)(1) of the ES A, 16 U.S.C. § 1533(a)(1). According to that section, five criteria can be the basis for a listing or delisting decision: (i) the present or threatened destruction, modification or curtailment of its habitat or range; (ii) overutilization for commercial, recreational, scientific, or educational purposes; (iii) disease or predation; (iv) the inadequacy of existing regulatory mechanisms; and (v) other natural or manmade factors affecting its continued existence.  

According to the majority, FWS relied on the best scientific evidence available in delisting the species, noting, “the recovery of a species negates the need for a plan designed to bring about that recovery.” The dissent agreed with the district court that the delisting decision had the effect of revising the recovery plan without a mandatory public notice-and-comment period for the revision.