Key Points:
- Environmental groups waited eight years for completed plan
- Mount Graham is the only place where the squirrels live
- Squirrels habitat has been impacted by wildfires, construction and insects
A federal judge has run out of patience over what he said is an “unreasonable delay” by the U.S. Fish and Wildlife Service to create a plan to protect the habitat of the endangered Mount Graham red squirrel.
In a new order, U.S. District Court Judge Raner Collins pointed out it has been eight years since environmental groups told the federal agency that the original protected spruce-fir habitat — the upper elevations of the Pinaleño Mountains — had been destroyed due to construction, wildfires and insect outbreaks. They asked that the habitat be extended to include the lower elevation mixed-conifer forest.
However, despite repeated assurances, Collins stated that not only has the promised work not been completed, but there has also been no indication of any progress. More to the point, he rejected claims by the Forest Service that its timeline for completing necessary reports was within its discretion — and not subject to review by any court.
“To find in favor of the (Fish and Wildlife) Service’s position would be nonsensical,” Collins wrote. “It would allow the Service to indefinitely postpone a determination on the merits without recourse.”
So now Collins has directed the agency to complete its revised recovery plan by Sept. 30, 2026, and issue a final decision no later than Jan. 30, 2027. And the judge made it clear he doesn’t want any more excuses.
“Because there has already been an unreasonable delay in deciding the petition, the court will not entertain extensions to this deadline or further delay,” he wrote.
Despite the deadline, though, there is nothing in the ruling that guarantees the Fish and Wildlife Service will agree that an expanded habitat is necessary. But Robin Silver, co-founder of the Center for Biological Diversity, which sued along with the Maricopa Audubon Society, now known as the Maricopa Bird Alliance, said the agency has no choice.
He told Capitol Media Services that the original habitat of trees on the mountain tops is gone and that no squirrels are located in the area. And that leaves only the lower elevations to protect if Fish and Wildlife Service is to comply with its requirements to ensure the endangered squirrel, confined to that particular area, survives as the law requires.
Mount Graham is the only place where the squirrels live.
The species was first declared endangered in 1987, with critical habitat designated in 1990.
Collins said that habitat was only at the higher elevations despite scientific recommendations to include lower levels. What occurred since then was habitat destruction due to the construction of controversial telescopes, as well as wildfires and insect outbreaks. What that has meant, according to environmental groups, is that the squirrels are largely confined to the lower elevations.
There also have been fluctuations in population.
When the species was first declared endangered in 1987, there were an estimated 280 squirrels. That figure is determined by the number of “middens,” the piles of cone scales saved by squirrels for food during times of scarcity.
The numbers reached 550 in the late 1990s, but dropped to just 35 after wildfires in 2017. There was some recovery, reaching as high as 156 in 2022 and then falling to 144 in 2023.
In 2017, environmental groups submitted their petition to revise the critical habitat to include the lower elevations.
Given no response, a lawsuit was filed in 2019 to require the Fish and Wildlife Service to take some action. And, in its initial finding, the judge said, the agency conceded there was substantial scientific or commercial information suggesting that a revision to the habitat was warranted.
Since then, however, the agency has taken little action, resulting in this new lawsuit in 2024.
Fish and Wildlife argued that prioritizing its workload is within its discretion, as is the time for resolving the original 2017 petitions.
Collins said agencies are entitled to leeway for reasonable delay. But he said that’s not what occurred here.
“A reasonable time for agency action is typically counted in weeks or months, not years,” the judge said.
He pointed out, for example, that the agency created a draft recovery plan in 2011 but never finished it because of “other priorities.”
“Now, so much time has passed that the Revised Recovery Plan is outdated, and the Service must start over again,” Collins wrote.
He acknowledged the agency is now estimating it will complete its Species Status Assessment — one part of the process — by the end of September. But even that, the judge said, is not firm, with agency officials saying that promise is dependent on “competing workload for the biologists, personnel needs, budget requirements, and the Service and Department of Interior Policies.”
And even with all that, he said, “the Service provided no timetable when it will decide plaintiffs’ petition on the merits.”
Collins said he understands there is a “balancing act” for the agency, given budget and workforce cuts.
“However, it does not mean that the Service can prolong a ruling on the petition indefinitely,” he said when he ordered the new deadlines.
Charles Babbitt, Conservation Chair of the Maricopa Bird Alliance, said he does not believe the delay is simply a matter of circumstance. He said the redesignated habitat will put a new, expanded line around the protected area.
“And there are people who don’t want that to happen,” he told Capitol Media Services, with Fish and Wildlife protecting the status quo.
Just the fact that it’s now been eight years since the petition was filed, Babbitt said, provides plenty of evidence.
“It’s just been obvious foot-dragging,” he said.
A spokesman for the Fish and Wildlife Service said he had no immediate comment.