The Ninth Circuit Court of Appeals turned down an effort by a timber mill and an anti-wildlife group to preclude the Pacific fisher, a rare relative of the otter and mink, from ever being protected under the Endangered Species Act. In 2004, the U.S. Fish and Wildlife Service determined that the fisher warrants protection as a threatened or endangered species under the Endangered Species Act (ESA) but refused to finalize such protection. The defeated lawsuit had hoped to ensure that protection for the fisher would never be finalized. 

"The fisher is in need of immediate protection under the Endangered Species Act to survive," said Greg Loarie, attorney with Earthjustice. "We’re glad that this effort to stop protection for the fisher was stopped in its tracks."

The Center for Biological Diversity, Sierra Forest Legacy and other groups first petitioned to have the fisher protected in 2001. Litigation later brought by Earthjustice eventually resulted in the "warranted but precluded" finding from the U.S. Fish and Wildlife Service. Sierra Forest Products challenged the finding, saying the U.S. Fish and Wildlife Service didn’t have the  authority to consider the Pacific fisher a "distinct population segment" eligible for listing under the ESA. In June 2007, Earthjustice intervened in this lawsuit to defend the fisher. A year later the district court rejected Sierra Forest Products’ challenge to the listing. Sierra Forest Products subsequently appealed to the Ninth Circuit Court of Appeals and today was tossed out of court.

With the warranted but precluded finding, the fisher is now one of 249 species for which protection has been delayed by the U.S. Fish and Wildlife Service. During its eight year tenure, the Bush administration protected a mere 62 species, for a rate of less than eight species per year. This compares to 522 protected under the Clinton administration at a rate of 65 species per year; and 231 species protected under the George H.W. Bush administration at a rate of 58 species per year. 

The fisher formerly ranged throughout old-growth forests of Washington, Oregon, northwestern California and the Sierra Nevada. Because of a combination of logging and historic fur-trapping, the fisher is now gone from all of Washington, most of Oregon and half its range in California. It is now found in two disconnected populations — one in northwestern California and extreme southwestern Oregon, and another in the southern Sierra Nevada.

Earthjustice represented the Center for Biological Diversity, Sierra Forest Legacy, NRDC, and the Sierra Club.