Sierra Forest Products, Inc. v. Dirk Kempthorne

NOT FOR PUBLICATION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.
3