## Facts

- The U.S. Fish and Wildlife Service (FWS) listed the West Virginia Northern Flying Squirrel as endangered in 1985.
- FWS issued a recovery plan in 1990 under ESA § 4(f) that included “objective, measurable criteria” indicating conditions that “would result” in delisting.
- In 2008, FWS promulgated a final rule delisting the subspecies, concluding it had recovered and was not endangered or threatened.
- FWS relied substantially on monitoring showing the subspecies’ continued presence (“persistence”) across multiple sites over time and evidence of habitat recovery, concluding the subspecies was stable or increasing.
- Several numerical and distribution-related recovery plan criteria had not been fully met at the time of delisting.
- Conservation groups challenged the delisting rule in federal district court under the ESA and the Administrative Procedure Act (APA).
- The district court granted summary judgment for plaintiffs, concluding the ESA required FWS to follow the recovery plan’s delisting criteria.
- The Secretary of the Interior and FWS appealed.

## Issues

1. Whether ESA recovery plan delisting criteria are legally binding prerequisites for delisting.
2. Whether FWS’s delisting rule was arbitrary, capricious, or contrary to law under the APA, including whether it relied on the best scientific and commercial data available and adequately explained its reasoning.

## Decision

- The court reversed the district court.
- Recovery plans, including their delisting criteria, do not have the force of law and do not bind the Secretary’s delisting decisions.
- FWS’s delisting rule was upheld as not arbitrary or capricious because the agency reasonably relied on monitoring and habitat information and adequately explained its conclusions.
- FWS was not required to satisfy every recovery plan benchmark or use a specific population methodology if its scientific approach was reasonable and consistent with the ESA’s standards.

## Legal Principles

- ESA § 4(f) recovery plans are guidance documents; their “objective, measurable criteria” are not binding conditions precedent to delisting.
- ESA listing and delisting decisions are governed by the statute’s substantive standards and must be based on the “best scientific and commercial data available.”
- Under APA arbitrary-and-capricious review, an agency must examine relevant data and provide a reasoned explanation; it may depart from nonbinding plan benchmarks if it explains why the evidence supports its decision.
- The ESA does not mandate particular scientific models or metrics; agencies may choose among reasonable scientific methods absent ignoring superior available data.

## Conclusion

The D.C. Circuit held that ESA recovery plan criteria do not legally constrain delisting decisions and that FWS permissibly delisted the West Virginia Northern Flying Squirrel based on the statutory factors, the best available science, and an adequately explained rationale under the APA.


Friends of Blackwater v. Salazar, 691 F.3d 428 (D.C. Cir. 2012)