* 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NOT FOR PUBLICATION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. 08-16721

D.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 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. 
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 “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.