Hall

MEMORANDUM *

Western Watersheds appeals from the district court’s grant of summary judgment to the United States Fish and Wildlife Service (the “Service”). The facts are known to the parties and need not be repeated here, except as necessary to explain our decision.

The Service did not violate its own DPS Policy by requiring Western Watersheds to prove that the interior mountain quail are completely geographically isolated from other mountain quail populations. The 90-day finding reveals that the Service considered physical isolation as only one factor among several. See 90-day Finding for a Petition To List the Mountain Quail as Threatened or Endangered, 68 Fed.Reg. 3,000, 3,004 (Jan. 22, 2003) (referring to “complicating information about past translocations of mountain quail,” and lack of evidence of “genetic, morphological, ecological, or behavioral differences” amongst quail populations.). Moreover, the Service expressly articulated the correct legal standard, which is *608 “marked[] separation” rather than “complete geographic isolation.” See 68 Fed. Reg. at 3,003.

The other listing determinations cited by Western Watersheds are distinguishable on their facts. The…

dissenting:

I respectfully disagree with my colleagues in the majority. I believe the Service erred both as a matter of law, applying the wrong standard to assess whether Western Watersheds showed “marked separation” between the interior mountain quail proposed as a distinct population segment (DPS) and other populations, and as a matter of fact, wrongly stating that Western Watersheds had not presented information showing ecological differences between the interior and other mountain quail populations. I would therefore reverse.

This case is controlled by the standard of proof Western Watersheds had to meet in its petition for listing the interior mountain quail population as a DPS: “substantial scientific or commercial information indicating that the petitioned action may be warranted.” 16 U.S.C. § 1533 (b)(3)(A) (emphasis added). We review the Service’s 90-day Finding to determine whether it is “arbitrary and capricious,” but this necessarily requires that we take into ac *609 count whether the Service applied the correct legal standard in making its decision. See Sierra Club v. Marsh, 816 F.2d 1876 , 1384 (9th Cir.1987). I believe the Service acted arbitrarily and…