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

JUDICIAL: Includes environmental law, the Migratory Bird Treaty Act

In Nat. Res. Def. Council, Inc. v. U.S. Dep’t of the Interior, No. 18-CV-4596 (VEC), 2020 WL 4605235 (S.D. N.Y. Aug. 11, 2020) the United States District Court for the Southern District of New York found in favor of the plaintiffs who brought suit against the U.S. Department of the Interior (“DOI”) over the agency’s decision to renounce interpretations of key terms under the Migratory Bird Treaty Act of 1918 (“MBTA”). The MBTA was enacted in 1918 to implement the 1916 Convention Between the United States and Great Britain for the Protection of Migratory Birds. The MBTA states that it is “unlawful at any time, by any means or in an manner, to purpose, hunt, take, capture, kill, attempt to take, capture, or kill” any migratory bird, nest, or egg of any bird protected by the Act. Any violation of the MBTA is a misdemeanor, while any intentional violation of the MBTA is a felony. Since the early 1970s, DOI has interpreted the MBTA to prohibit any incidental takes and kills of protected birds, regardless of whether the activity that resulted in incidental takes and kills targeted birds or was intended to cause takes or kills. In 2018, the DOI issued a memorandum, referred to as the Jorjani Opinion, which stated that DOI would no longer regulate incidental take of migratory birds under the MBTA. The plaintiffs filed this case shortly afterwards, argued that the Jorjani Opinion’s interpretation of the MBTA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of the Administrative Procedure Act (“APA”).

The plaintiffs argued that the Jorjani Opinion added a “mental state” requirement to misdemeanor violations of the MBTA that is not present in the text of the Act. DOI disagreed, arguing that the Jorjani Opinion placed boundaries around the types of activity prohibited by the MBTA. According to DOI, only activities that were conducted with the purpose of taking or killing migratory birds could be punished under the MBTA. Usually, courts will defer to agency expertise on matters of statutory interpretation, unless the agency action is unreasonable or contrary to the law. Here, the court concluded that the Jorjani Opinion contrary to “the MBTA’s unambiguous prohibition on killing protected birds.” The court noted that Congress could have limited the MBTA to activities that are purposefully directed at birds, but chose not to. There was therefore no basis for adding a mental state requirement to the MBTA. The court vacated the Jorjani Opinion, meaning that the Opinion no longer has any legal authority.

REGULATORY: Includes NOAA

National Oceanic and Atmospheric Administration 

Temporary rule reallocating the projected unused amount of Pacific cod from vessels using jig gear and certain catcher vessels using hook-and-line gear to other catcher vessels in the Bering Sea and Aleutian Islands management area. Info here.

Final rule implementing three resolutions adopted by the Members of the Inter-American Tropical Tuna Commission in 2018 and 2019. Info here.

Final rule announcing regulations under the Marine Mammal Protection Act for the taking of marine mammals incidental to the Alaska Liquefied Natural Gas project in Cook Inlet, Alaska. Info here.

Temporary rule apportioning amounts of the non-specified reserve to the initial total allowable catch of Aleutian Islands Greenland turbot, AI trawl sablefish, Bering Sea trawl sablefish, Bering Sea and Eastern Aleutian Islands blackspotted/rougheye rockfish, Bering Sea and Aleutian Islands Alaska plaice, BSAI Kamchatka flounder, BSAI octopuses, and BSAI “other flatfish”. Info here.