ELR Citation: ELR 20009
No(s). 08-16721 (9th Cir. Jan 6, 2009)

The Ninth Circuit, in an unpublished opinion, held that FWS did not arbitrarily or capriciously conclude that the West Coast range of the fisher—a medium sized mammal also referred to as the "fisher cat"—is a distinct population segment (DPS) that should be listed as a candidate for protection under the ESA. Because the fisher is comprised of three subspecies, a company argued that the FWS erred by failing to specify whether the listing concerned a "DPS of species" or a "DPS of a subspecies." Here, the record shows that the FWS concluded that the fisher in its West Coast range was a "DPS of a species." This finding is amply supported with evidence and explanation in the existing record. The FWS' conclusion, therefore, is not arbitrary, capricious, or an abuse of discretion under the APA.