Sierra Forest Products, Inc. v. Dirk Kempthorne

MEMORANDUM

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 .

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…