Defenders and Local Maryland Landowner Sue FWS to Protect the Endangered Delmarva Fox Squirrel

(09/07/1999) - Defenders of Wildlife and Maryland conservationist John "Ned" Gerber today sued the U.S. Fish and Wildlife Service (FWS) for violating the Endangered Species Act (ESA) in failing to adequately protect the endangered Delmarva fox squirrel. Defenders filed the lawsuit in federal district court in Washington, D.C. after the FWS issued a permit authorizing construction of the Homeport Development project in key habitat for the species in Queen Anne’s County, Maryland. This is the second time Defenders and Mr. Gerber, a landowner and resident of Queen Anne’s County, Maryland have sued the FWS for violating the ESA in connection with the Homeport development.

"By allowing the Homeport Development project to go forward, the FWS is sanctioning the further destruction of critically important habitat for this species, in direct contravention of their conservation mandate under the ESA," said Rodger Schlickeisen, President of Defenders of Wildlife.

The ESA prohibits the "taking" of any endangered species. This prohibition includes not only the direct killing of the species, but also adverse modification or degradation of endangered species habitat. The ESA authorizes a limited exception to this prohibition for takings that occur "incidental" to the carrying out of an otherwise lawful activity. To obtain an "incidental take permit," the permit applicant must agree to develop and implement a "conservation plan" (commonly referred to as a "habitat conservation plan" or "HCP") that specifies how the impacts of such taking will be minimized and mitigated "to the maximum extent practicable." Defenders and Mr. Gerber maintain that the HCP is biologically unsound and violates the procedural and substantive requirements of the Endangered Species Act ("ESA"). In particular, the FWS refused to grant Defenders and Mr. Gerber an opportunity to comment on the adequacy of the off-site mitigation area under the plan.

"In blatant violation of the ESA, the FWS refused to provide the public with the location of the HCP’s off-site mitigation area information that is crucial to evaluating the adequacy of the plan," said Defenders’ attorney Mike Senatore. "We have since learned that our skepticism concerning the adequacy of this area was well- founded. The off-site mitigation area is about as useful to the Delmarva fox squirrel as downtown Annapolis."

The Delmarva fox squirrel is primarily threatened by the continued loss and degradation of its habitat. Listed as an endangered species since 1967, the subspecies today exists on approximately 10 percent of its historic range. Once found throughout eastern Maryland, Delaware, southeastern Pennsylvania, and southern New Jersey, the Delmarva fox squirrel is today restricted almost exclusively to just four counties on the Eastern Shore of Maryland. Restoring and protecting the subspecies habitat is therefore key to its survival and eventual recovery.

"The FWS has agreed to allow development to proceed in an area in which we know there are Delmarva fox squirrels, in exchange for an agreement to protect another area that is currently barren of fox squirrels and utterly useless to its survival. By signing-off on the Homeport HCP, the FWS is essentially sending a message to developers that the federal government is in the business of sanctioning the continued loss of fox squirrel habitat. For an animal that has already lost most its habitat, the precedent this sets is terrible and all but ensures that the subspecies will never recover," said Ned Gerber.

Under the Clinton Administration there has been a proliferation in the number of HCPs. Since 1992, more than 240 plans have been approved, covering an estimated 11 million acres and hundreds of species. The Homeport HCP is the first for the Delmarva fox squirrel, and the first private-landowner HCP issued by Region 5 of the Department of the Interior, which covers Virginia to Maine.

Defenders of Wildlife and Mr. Gerber are being represented by Meyer and Glitzenstein, a Washington, D.C. law firm specializing in wildlife protection.



Cat Lazaroff, (202) 772-3270