Norton

The National Association of Home Builders, the Southern Arizona Home Builders Association, and the Home Builders Association of Central Arizona (collectively, “Home Builders”) appeal the district court’s decision upholding the designation of a population of cactus ferrugi-nous pygmy-owls in Arizona as a distinct population segment (“DPS”) pursuant to the Fish and Wildlife Service’s (“FWS”) Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act, 61 Fed. Reg. 4722 (Feb. 7, 1996) (“DPS Policy ”). Home Builders argue that this DPS designation violated the DPS Policy because the Arizona pygmy-owl population is neither discrete nor significant. We hold that, although the FWS did- not arbitrarily find the Arizona pygmy-owl population to be discrete, the FWS arbitrarily found the discrete population to be significant. We therefore reverse the district court’s decision and remand the Listing Rule to the district court.

BACKGROUND

The cactus ferruginous pygmy-owl (Glaucidium brasilianum cactorum) is a small bird, about 6.75 inches in length, that can be reddish-brown or gray. Determination of Endangered Status for the Cactus…