The panel ruled that the Department of Natural Resources violated a state rule by failing to submit a proposed list of critical habitats for the western gray squirrel within 30 days of the species’ uplisting to endangered status in December 2023.
The court held that the environmental groups, including the Vancouver Audubon Society and the Center for Biological Diversity, demonstrated sufficient injury-in-fact to sue under the Administrative Procedure Act.
The opinion relied on declarations from group members who stated they regularly visit and observe the squirrels in Klickitat County and the Columbia River Gorge.
Noah Greenwald, a member of the Center for Biological Diversity, declared he had personally observed western gray squirrels in 2023 and 2024 and planned future visits.
Jennifer Schwartz, a member of WildEarth Guardians, said she enjoys recreating in Klickitat County’s oak woodland habitats and plans to continue doing so regularly.
The court distinguished these concrete plans from the “some day” intentions found insufficient for standing in the U.S. Supreme Court’s Lujan decision.
The court found the DNR’s failure to act threatened the squirrel population, noting that timber harvest activities account for 15 percent of habitat loss Cascades and 76 percent Cascades.
Without interim protections, the court reasoned, forest practices like thinning and clearcutting would continue without State Environmental Policy Act review.
The DNR had submitted a memorandum to the Forest Practices Board recommending the formation of a Wildlife Working Group, but failed to provide the required list of proposed critical habitats.
The court noted the DNR misstated the regulatory requirement, which mandates a list of proposed habitats, not a recommendation on whether to amend protections.
The panel reversed the trial court’s grant of summary judgment and remanded the case for the lower court to determine if the groups are entitled to relief under the Administrative Procedure Act.
The Washington Forest Protection Association, a timber industry trade organization, intervened as a respondent.
The opinion was authored by Acting Chief Judge Bowman.