Squirrel at center of legal battle Fight could affect development on Shore

March 27, 1998|By Heather Dewar | Heather Dewar,SUN STAFF

A rare squirrel that has found a haven in a few Maryland counties' dwindling forests has triggered a legal battle that could shape the face of development in parts of the Eastern Shore.

Defenders of Wildlife, a Washington-based conservation group, filed a federal court case yesterday accusing the U.S. Fish and Wildlife Service of failing to protect the endangered Delmarva fox squirrel from creeping development.

The lawsuit focuses on a development proposed for the banks of Winchester Creek in Queen Anne's County. But lawyers for the environmental group say the squirrel's plight illuminates a bigger issue: What should the government do in cases where growth is slowly whittling at the last lairs of endangered wildlife?

In similar cases elsewhere, environmentalists have used the courts to force Uncle Sam to restrict development on private land. The battles over endangered animals' habitats have gone to the U.S. Supreme Court, which has sided with environmentalists. And they've caused a series of divisive "train wrecks," in the words of Interior Secretary Bruce Babbitt, from the Carolinas to the Pacific Northwest.

A lawyer for Defenders of Wildlife said the group doesn't want to force an ugly court fight and its members are willing to negotiate a deal with developers and the government. But the bottom line, in the organization's view, is that the Endangered Species Act is meant to protect rare wildlife from having their homeland nibbled away piecemeal, and it's the Fish and Wildlife Service's job to enforce the law.

"The fox squirrel is being harmed by essentially out-of-control development," said Michael P. Senatore, an attorney for Defenders of Wildlife. "In Queen Anne's County in particular, you have conversion of what remaining forests there are to residential and commercial development. We think the Fish and Wildlife Service has the responsibility to address the loss of habitat."

John Wolflin, the head of the Fish and Wildlife Service's Maryland office, refused to talk about the case in detail Wednesday, citing Defenders' pending lawsuit. "We're evaluating the claims they've made and what actions we can take," he said.

Developer Mareen Waterman, whose proposal to build 15 houses on a 60-acre farm in Queen Anne's County triggered the case, said it's "nonsense" to think his project will harm the rare squirrel.

The conservation group merely wants to stop growth in Queen Anne's County, Waterman said, adding, "Basically, I would call it a NIMBY [Not In My Back Yard] argument."

No one disputes that Waterman's land, less than a quarter-mile from busy U.S. 50, is one of the few places in the county where the jumbo-sized squirrel is thriving. But Waterman is sure he can build 15 houses on the forested farm without harming the creature. In a recent letter, the Fish and Wildlife Service agreed.

One sunny morning this week, a lone Delmarva fox squirrel browsed among winter-shriveled soybean plants on the farm, its distinctive fur a pale silver. The plump animal, about twice the size of a common gray squirrel, stared curiously at a car on the nearby road before loping across the field and into the woods.

The squirrel's preference for open ground has been a help and a hindrance in its struggle to co-exist with humans, said biologist John N. Gerber, president of the Queen Anne's Conservation Society.

"It's one of those critters that can make it if there's some agricultural land and a little bit of woodlands. But if that goes -- game over," Gerber said. "It's famous for getting iced by dogs and cats and cars."

Unlike gray squirrels, the Delmarva fox squirrel forages as much as a half-mile from the forest. It likes mature woods with lots of space between trees, near open land and creeks or marshes. When threatened, it usually runs across the ground instead of climbing a tree -- and it isn't very fast.

"It's more easygoing than the gray squirrel," said retired University of Maryland biologist Vagn Flyger, who studied the creature for about 50 years. "It gets up later in the morning, goes to bed earlier at night, gets out more in the open ground and wanders a lot more."

The squirrel once inhabited forests east of the Susquehanna River from New Jersey to Virginia. By 1967, it was confined to four counties on Maryland's Eastern Shore.

Under the Endangered Species Act, the Fish and Wildlife Service must study projects such as the Homeport development and decide whether they're likely to result in harm to endangered creatures. If the agency concludes that accidental deaths or declining numbers will occur, it can impose development restrictions.

Last year, the wildlife service's Maryland office ruled that Homeport would not cause the deaths of many Delmarva fox squirrels. Because Waterman was planning to keep all of the mature forests on the property, no habitat would be lost, federal biologists wrote, and the threat from cars and dogs could be curbed by a 25-mph speed limit and strict enforcement of the county leash law.

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