ELR Citation: ELR 20034
No(s). 04-35860 (9th Cir. Feb 2, 2007)

The court upheld the U.S. Fish and Wildlife Service's (FWS') decision not to classify the western gray squirrel in Washington State as an endangered distinct population segment (DPS) under the Endangered Species Act (ESA). Because the ESA does not expressly define "distinct population segment," the FWS and National Oceanic and Atmospheric Administration-Fisheries jointly adopted a policy statement to guide their evaluation of whether a population group should be treated as a DPS. In essence, the policy states that a population qualifies as a DPS if it is both discrete and significant. This policy is not an informal policy statement. Rather, it has been treated as legally binding. Hence, it is entitled to Chevron deference. In addition, the DPS policy is a reasonable construction of the ESA. The policy's requirement that a population be significant to its taxon is not unlawfully restrictive. Lastly, the FWS' decision not to classify the species as an endangered DPS was not arbitrary or capricious.