Saturday, June 3, 2023 | Back issues
Courthouse News Service Courthouse News Service

Judge Voids Denial of Protected Status for Pacific Fisher

A federal judge on Friday ordered the U.S. government to reconsider its denial of Endangered Species Act protection for the weasel-like Pacific Fisher, finding it ignored evidence of persistent threats to the animal's survival.

SAN FRANCISCO (CN) - A federal judge on Friday ordered the U.S. government to reconsider its denial of Endangered Species Act protection for the weasel-like Pacific fisher, finding it ignored evidence of persistent threats to the animal's survival.

U.S. District Judge William Alsup found the U.S. Fish and Wildlife Service failed to explain why its "uncertainty" about survival threats justified denying protected status for animal.

"Simply stating that the impact was 'uncertain' was insufficient," Alsup wrote in his 17-page ruling. "Rather, the Service should have explained why the uncertainty favored delisting instead of some other course of action, such as conducting further studies to help clarify the impact."

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.

A coalition of environmental groups sued Fish and Wildlife in October 2016, saying the service abruptly changed its mind about protecting the Pacific fisher after it received “new information” from forest industry groups.

Alsup found the agency unreasonably disregarded evidence of rising exposure to deadly rat poison and shrinking population sizes by merely characterizing it as inconclusive. He rescinded an April 2016 decision to deny the fisher protected status and ordered the agency to issue a new finding by March 22, 2019.

“The U.S. Fish and Wildlife Service ignored the best interest of the fisher and bent over backwards to appease the timber industry, but today’s ruling reinforces once more that science, not politics, should determine whether a species deserves protection,” said Tom Wheeler, program director at the Environmental Protection Information Center, in a statement.

Five logging industry groups got involved with the litigation as intervening defendants.

A lawyer for one of those groups called the decision "disappointing," adding that courts should give federal agencies "appropriate deference" when making scientific determinations.

"Our experience on the ground is there are tons of conservation efforts already for the fisher," said Lawson Fite, general counsel for the Oregon-based timber industry group American Forest Resource Council, in a phone interview. "We think once the Fish and Wildlife Service looks at it again, we don't see the science justifying the need to list these species."

Fite cited public-private partnerships as successful in incentivizing land owners to help facilitate animal research, stay away from identified den locations and cover water tanks to prevent animal drownings.

Fite also stressed the judge's focus on rat poison in his ruling, noting that the main source of that threat comes from illegal marijuana grows, not regulated logging activities.

Although Alsup only addressed threats of rat poison and population size in his ruling, he recommended the service also consider the plaintiffs' other objections about its findings, including the risk of wildfire.

The service concluded that low-to-medium-severity wildfires can benefit Pacific fishers by creating new foraging opportunities, and that wildfires will likely continue at a rate and severity similar to the recent past. Environmental groups say those findings fly in the face of clear evidence of increasingly severe and frequent fires.

Plaintiffs' attorney Elizabeth Forsyth, of Earthjustice in San Francisco, said she is confident that overwhelming evidence on the harmful impacts of rat poison will make it nearly impossible for the service to deny protected status when it reevaluates its decision.

"Faced with that evidence along with evidence of small population size and the fact that the Pacific fisher is drastically reduced from its range and has only two small native populations left, I think the only rational conclusion is to list it," she said.

Forsyth said the next step will be for Fish and Wildlife to move forward with its process of issuing a new finding on the fisher's protected status by March 22, 2019, or to file an appeal.

Plaintiffs in the case include the Center for Biological Diversity, Environmental Protection Information Center, Klamath-Siskiyou Wildlands Center, and Sierra Forest Legacy.

U.S. Fish and Wildlife spokeswoman Pam Bierce said the agency was still reviewing the judge's ruling and had no immediate comment. A U.S. Justice Department spokesman declined to comment.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.