SAN FRANCISCO (CN) – A federal judge hinted Thursday that the U.S. government may have relied on biased information when it decided not to list the weasel-like Pacific fisher as an endangered species.
"You were going one way. Then the industry gave you new information and you flip-flopped," U.S. District Judge William Alsup said in court Thursday.
Alsup is presiding over a lawsuit challenging the U.S. Fish and Wildlife Service's April 2016 decision to withdraw a rule that would have listed the Pacific fisher as threatened under the Endangered Species Act.
A coalition of environmental groups sued Fish and Wildlife in October 2016, saying the service abruptly changed its mind about protecting the animal after it received "new information" from forest industry groups.
Pacific fishers are fierce members of the weasel family with thick, dark coats and long, bushy tails. Their name is somewhat of a misnomer, as they do not eat fish. They feed on berries, nuts, insects, small birds, and mammals – including porcupines.
Once found in the mixed conifer forests along the West Coast and the Cascade Mountains of Canada, the Pacific fisher’s numbers have sharply declined due to deforestation, logging, poisoning and fur trapping.
Only two small, isolated populations remain: one in the southern Sierra Nevada, the other in the Klamath-Siskiyou region of Northern California and Oregon. According to Fish and Wildlife estimates, the California/Oregon population ranges in size from 258 to 4,018, and the Sierra Nevada population is 100 to 500 animals.
During a hearing on dueling summary judgment motions, Alsup asked why Fish and Wildlife did not consider whether new studies furnished by forestry groups might be tainted by bias.
"It's still the best scientifically available information," U.S. Department of Justice lawyer Nicole Smith told the judge.
After 14 years of what the plaintiffs call "illegal foot dragging" and court battles, Fish and Wildlife published a proposed rule in October 2014 to list the Pacific fisher as threatened. But before the rule was finalized, the service withdrew it, relying on new studies that showed the risk of wildfires, rat poison and population size no longer justified extra protections for the animal.
The new studies found low-to-medium-severity wildfires can benefit Pacific fishers by creating new foraging opportunities and snags used for dens and breeding.
Fish and Wildlife also concluded future wildfires will continue at a rate and severity similar to what has occurred in the recent past. The plaintiffs say that flies in the face of clear evidence that climate change has sparked an uptick in the frequency and intensity of California wildfires.
“I’ve seen it with my own eyes," Alsup said of increasingly severe wildfire seasons.
Turning to the issue of risks posed by rat poison, Fish and Wildlife cited a survey that found only 10 percent of Pacific fisher deaths were caused by such toxins, the same rate of deaths caused by vehicle strikes.
But plaintiffs' attorney Elizabeth Forsyth, of Earthjustice, argued the use of deadly rat poison, primarily by legal and illegal marijuana farmers, is growing and poses a greater risk to the animal.
"They're using this conclusion to say therefore toxicants is not a problem, even though the most recent study in the record showed exposure to toxicants is growing and increasingly causing mortality," she said.
However, Alsup did not appear totally convinced that Fish and Wildlife acted arbitrarily when it decided to withdraw proposed protections for the Pacific fisher.
"Those are good scientists that work in the service," Alsup said. "If you win this case, that means some other species is not going to be protected because they'll be busy protecting your species because they don't have unlimited resources."
Forsyth replied that she is not calling into question the judgment of "good people at the service," but rather seeking to vindicate the work of scientists who previously concluded that the Pacific fisher is threatened and deserves protection.
The plaintiffs contend a regional director at Fish and Wildlife arbitrarily overruled scientists' prior determination that the animal faces imminent risk of population decline and potential extinction.
"We don't dispute that that's the regional director's job [to make that decision]," said plaintiffs' co-counsel Gregory Loarie of Earthjustice. "But the question is, was that decision rational?"
Erika Malmen of Perkins Coie, a lawyer for five industry groups that intervened in the case, told the judge that protections and conservation efforts are already in place for the Pacific fisher, and that reintroduction of one population of the species has already occurred on one timber group's land.
"We're committed to protecting fishers," she said.
The industry groups include American Forest Resource Council, California Forestry Association, National Alliance of Forest Owners, Oregon Forest & Industries Council, and Washington Forest Protection Association.
Plaintiffs in the case include the Center for Biological Diversity, Environmental Protection Information Center, Klamath-Siskiyou Wildlands Center, and Sierra Forest Legacy.
The judge ended the hearing after an hour of debate without issuing a ruling.
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