Ninth Circuit revives fight over logging plans in forests where endangered fishers live

(CN) — A Ninth Circuit panel ruled Tuesday a lower court erred when it declined to stop several logging operations in a portion of a California national forest that is home to the endangered fisher, a small weasel-like mammal that displays agility and climbing prowess. 

A three-judge panel issued ruled a lower court should have granted a preliminary injunction to wildlife advocacy groups dedicated to the conservation and recovery of the Pacific fisher in the Sierra Nevada mountains, where their populations have diminished due to hunting, logging and other forms of habitat encroachment.

“We agree that the denial of injunction was premature as to the fisher population and should not stand at this time,” the panel wrote in a terse 8-page decision. .

Unite the Parks, the plaintiffs in the case, claimed that the U.S. Forest Service should not have allowed the logging projects in the Sierra National Forest and the Sequoia National Forest where Pacific fishers roam, because they had incomplete data at the time when they made the decision. 

Namely, wildlife groups say the Forest Service failed to account for a new population account that was performed after the devastating wildfire seasons that may have even further reduced the population levels of the vulnerable animal. 

The fisher was first listed as an endangered species in May 2020, as the population of tree-dwelling carnivore that preys on rabbits and other small mammals — and one of the only predators to successfully hunt porcupines — dropped to as low as 100 individuals in its historical range. 

Then later in 2020, two separate wildfires ripped through Sequoia National Forest and Sierra National Forest, with the potential to further imperil the population of fishers in the area. The Forest Service took a preliminary census count in the aftermath of the fires and provided the data to the lower court, but the judge failed to incorporate that data into their decision to deny the preliminary injunction. 

The Ninth Circuit panel found this was a mistake.

“Because the district court did not fully explain whether this data could constitute the best available science, the ruling at issue here constitutes an abuse of discretion and we vacate it as erroneous,” the panel wrote. 

The Ninth Circuit ordered the lower court to decide if the data casts doubt on whether the 31 logging projects approved by the Forest Service, with the contributions of the U.S. Fish and Wildlife, were consistent with protection of the fishers. 

“The district court should also inquire into any other questions pertinent to whether the raw post-2020 wildfire vegetation data makes any difference in the ESA analysis of these logging projects, including why FWS did not use this data in formulating the 2021 BiOp, why FWS can or cannot use this data, where FWS is now in its analysis of the fisher population, and what has been done with this data,” the panel wrote. 

While the ruling is an unequivocal victory for the plaintiffs, the panel stopped short of issuing a preliminary injunction or even ordering the lower court to grant a preliminary injunction. 

Instead, it is merely an order for the lower court to reconsider the preliminary injunction in light of the most available data while requesting the Forest Service to weigh in on whether that data affects their models and other analyses they use to justify logging projects in areas where endangered species live. 

U.S. Circuit Judge Ronald Gould, a Bill Clinton appointee, and U.S Circuit Judges Mark Bennet and Ryan Nelson, both Donald Trump appointees, made up the panel.