* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
SIERRA FOREST PRODUCTS, INC., Plaintiff - Appellant,

v. DIRK KEMPTHORNE, Secretary, 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. No. 08-16721D.C. No. 2:07-cv-00060-JAMGGH
MEMORANDUM *

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

# FILED
JAN 06 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS** The Honorable Barbara M.G. Lynn, United States District Judge for the Northern District of Texas, sitting by designation. 2 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 E ndangered Species Act, 16 U.S.C. §§ 1531 et seq. (“ESA”). SFP contends that the fisher is compri sed 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 th e ESA and constitutes a failure to explain its findings in violation of the Administrative Procedures Act (“APA”), 5 U.S.C. § 706.3 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 “s pecies” 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, c oncluded that the fisher in its West Coast range was a “DPS of a species.” The Serv ice’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 ther efore 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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