Northwest Ecosystem Alliance v. United States Fish and Wildlife Service

The western gray squirrel was once abundant in the Pacific Northwest and remained common in California and Oregon. The numbers of the western gray squirrel were declining in Washington, where it was found only in three isolated populations: the Puget Trough population, the North Cascades population, and the South Cascades population. The Northwest Ecosystem Alliance and the Tahoma Audubon Society (collectively, the alliance) (plaintiffs) petitioned the United States Fish and Wildlife Service (FWS) (defendant) to add an emergency endangered or threatened listing for the Washington population of the western gray squirrel under the Endangered Species Act. The FWS denied the petition. Based on studies, FWS found that differences in the types of trees in the Washington habitats did not compel a finding of a unique or unusual ecological setting, because western gray squirrels rely on a variety of tree species throughout their range. The FWS found that loss of the Washington population would not create a significant gap, because the FWS found no compelling evidence of any biological or behavioral differences in that population. The FWS determined that the genetic differences found in the Washington population were not great enough to support listing. The alliance sought review in federal district court, which granted summary judgment for the FWS. The alliance appealed to the Ninth Circuit, arguing that the FWS’s analysis was arbitrary and capricious.