A comprehensive summary of today’s judicial, legislative, and regulatory developments in agriculture and food. Email important additions HERE.

JUDICIAL: Includes water law, ESA

In WildEarth Guardians v. U.S. Army Corps of Eng’rs, No. 18-2153, 2020 WL 253557 (10th Cir. Jan. 17, 2020) the United States Court of Appeals for the Tenth Circuit upheld a decision by a lower court which found that the United States Army Corps of Engineers (“Corps”) was not required to consult with the United States Fish and Wildlife Service (“FWS”) about water management polices on the Rio Grande because the Endangered Species Act (“ESA”) did not give the Corps the authority to allocate additional water to the needs of endangered species. Together with the Bureau of Reclamation, the Corps is tasked with managing the water in the Rio Grande river to “maintain a valance between the personal, commercial, and agricultural needs of the people in New Mexico’s Middle Rio Grande Valley and the competing needs of plants and animals.” The plaintiffs accused the Corps of failing to protect the needs of the Southwestern Willow Flycatcher and the Rio Grande Silvery Minnow, two endangered species that live along the river. The plaintiffs brought suit under the ESA, arguing that the Corps should have consulted with FWS about their water management policies for the Rio Grande. Under the ESA, agencies must formally consult with FWS if an agency action: (1) “may affect” a listed species, and (2) is one “in which the agency has discretion to act for the benefit of an endangered species.” Because all parties agree that the Corps’ actions on the river will affect both the flycatcher and the minnow, the only question before the court was whether the Corps had discretion to manage the river for the benefit of the listed species. Ultimately, the court concluded that the Corps did not have such discretion because the agency is required to conduct its water management activity on the Rio Grande according to instructions from the Flood Control Acts of 1948 and 1960. Therefore, the court upheld the lower court’s conclusion that the Corp did not need to engage in formal ESA consultation over its operations in the Middle Rio Grande Valley.

REGULATORY: Includes NOAA

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

Temporary rule prohibiting directed fishing for Pacific cod by catcher vessels greater than or equal to 60 feet in overall length using pot gear in the Bering Sea and Aleutian Islands management area. Info here.