947 F.3d 635
10th Cir.2020Background:
- The Army Corps of Engineers operates dams and reservoirs in New Mexico’s Middle Rio Grande under the Middle Rio Grande Conservancy District Project, authorized by the Flood Control Acts of 1948 and 1960 and constrained by the Rio Grande Compact.
- The Rio Grande Silvery Minnow and the Southwestern Willow Flycatcher were listed as endangered in 1994–1995; both species’ critical habitat lies in the Middle Rio Grande and are affected by Corps operations.
- ESA §7(a)(2) requires federal agencies to consult with FWS or NMFS when an action may affect listed species and the agency has discretion over the action.
- From the mid-1990s the Corps and Bureau of Reclamation engaged in consultations with FWS; a 2003 biological opinion covered both agencies jointly, and the Corps later sought a Corps‑specific opinion but FWS declined.
- The Corps’ 2014 reassessment concluded it lacks discretion over Middle Rio Grande operations because the Flood Control Acts and the Rio Grande Compact require operation “solely for flood (and sediment) control,” with deviations allowed only via the Compact Commission or in emergencies.
- The district court dismissed WildEarth Guardians’ claim that the Corps must consult under ESA §7(a)(2); the Tenth Circuit affirmed, holding the Corps lacks the requisite discretion to trigger formal consultation.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether this court has jurisdiction (final judgment) | WildEarth: district court left one maintenance question unresolved so no final judgment | Corps: district court resolved remand and entered Rule 58 judgment; appeal is ripe | Court: final judgment existed; appellate jurisdiction proper |
| Whether the Corps must engage in formal ESA §7(a)(2) consultation | WildEarth: Corps’ operations affect listed species and Corps has discretion to adopt alternatives to protect them, so consultation required | Corps: Flood Control Acts and Rio Grande Compact fix operating rules ("solely for flood/sediment control"), leaving no discretion except via Compact Commission or emergency; thus no ESA consultation obligation | Court: Corps lacks discretion over Middle Rio Grande operations as prescribed by statute; no §7(a)(2) consultation required |
Key Cases Cited
- Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) (where statute prescribes mandatory criteria, agency lacks discretion and §7 consultation is not required)
- WildEarth Guardians v. Envtl. Prot. Agency, 759 F.3d 1196 (10th Cir. 2014) (ESA §7 consultation is triggered only for actions that may affect a species and in which the agency has discretion)
- Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096 (10th Cir. 2010) (background on Middle Rio Grande projects and Conservancy District)
- Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109 (10th Cir. 2003) (example where Reclamation retained discretion over water deliveries under contracts)