Featured Case

Sierra Forest Products v. Kempthorne

Contact:  Damien M. Schiff

Status: Adverse decision issued by the Ninth Circuit Court of Appeals on January, 2010.

Summary:

In April, 2004, the United States Fish and Wildlife Service placed the western population of the fisher on the Candidate Species List, which contains those species that the Service believe merit listing under the Endangered Species Act but whose cases cannot proceed at present because of other administrative or budgetary priorities.  The Service noted the ongoing debate as to whether the fisher should be treated as one species spanning North America, or whether it should be treated as several subspecies, of which the western segment would be one, but did not make a determination on this issue.

Sierra Forest Products is a timber harvesting company that planned to participate in the harvesting of timber in parts of the Giant Sequoia National Monument and adjacent areas.  The United States Forest Service determined that the proposed timber harvests would  have only insignificant impact on the fisher.  These findings were made prior to the Service’s 2004 “warranted but precluded” finding.  Environmentalists challenged the Forest Service’s determination in light of the new information regarding the fisher.  A District Court in San Francisco recently agreed, finding that the Forest Service had failed to take the requisite “hard look” at the new data to determine whether the proposed timber harvests would have significant impact on the fisher.

In the District Court, PLF argued that, because the Service has no authority to list a distinct population of a subspecies, it must determine whether the fisher is a species or subspecies before listing any of its populations on the candidate species list.  The District Court disagreed, holding that the Service had impliedly determined that the fisher is a single species, and, even if not, that the Service may list a DPS of a subspecies.  PLF has appealed and briefing has been completed.

On January 6th, 2010, the Ninth Circuit Court of Appeals issued an adverse decision, affirming the District Court's decision, that the Service's finding that the West coast range of the fisher constituted a DPS of a species is amply supported with evidence and explanation the existing record, was not an abuse of discretion under the APA.