                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 06 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

SIERRA FOREST PRODUCTS, INC.,                    No. 08-16721

             Plaintiff - Appellant,              D.C. No. 2:07-cv-00060-JAM-
                                                 GGH
  v.

DIRK KEMPTHORNE, Secretary,                      MEMORANDUM *
Department of the Interior; UNITED
STATES DEPARTMENT OF THE
INTERIOR; UNITED STATES FISH
AND WILDLIFE SERVICE; H. DALE
HALL, Director, Fish and Wildlife
Services,

             Defendants - Appellees,

CENTER FOR BIOLOGICAL
DIVERSITY; NATURAL RESOURCES
DEFENSE COUNCIL; SIERRA CLUB;
SIERRA NEVADA FOREST
PROTECTION CAMPAIGN,

             Defendant-intervenors -
Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     John A. Mendez, District Judge, Presiding

                     Argued and Submitted December 11, 2009
                             San Francisco, California

Before: SCHROEDER and CALLAHAN, Circuit Judges, and LYNN, ** District
Judge.

       Sierra Forest Products (“SFP”) appeals the district court’s determination on

summary judgment that the United States Fish and Wildlife Service (the “Service”)

did not act arbitrarily or capriciously in concluding that the West Coast range of

the fisher was a “distinct population segment” (“DPS”) that should be listed as a

“candidate” for protection under the Endangered Species Act, 16 U.S.C. §§ 1531 et

seq. (“ESA”).

       SFP contends that the fisher is comprised of three subspecies and that the

Service erred by failing to specify whether the listing concerned a “DPS of

species” or a “DPS of a subspecies.” SFP asserts that the Service’s failure to

specifically address this issue violates the ESA and constitutes a failure to explain

its findings in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. §

706.




       **
            The Honorable Barbara M.G. Lynn, United States District Judge for
the Northern District of Texas, sitting by designation.

                                          2
      There is no statute or regulation requiring the Service to make an explicit

finding as to a candidate species’ taxonomy. See 16 U.S.C. § 1533(a)(1) (setting

forth factors for determining whether a “species” is threatened or endangered); 16

U.S.C. § 1532(16) (defining “species” to include “any subspecies of fish or

wildlife or plants, and any distinct population segment of any species of vertebrate

fish or wildlife which interbreeds when mature”) (emphasis added). Here, the

record shows that the Service, in fact, concluded that the fisher in its West Coast

range was a “DPS of a species.” 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 in the existing record, and therefore is not arbitrary, capricious or an

abuse of discretion under the APA. Pacific Coast Fed’n of Fishermen’s Ass’ns,

Inc. v. Nat’l Marine Fisheries Serv., 265 F.3d 1028, 1034 (9th Cir. 2001) (noting

that “we must ask whether the agency considered the relevant factors and

articulated a rational connection between the facts found and the choice made”)

(internal quotation marks and citations omitted); see also Kunaknana v. Clark, 742

F.2d 1145, 1149 (9th Cir. 1984) (noting that it is not an impermissible post-hoc

rationalization to allow an agency to explain its decision).

      AFFIRMED.




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