Agricultural Land
On July 14, 2026, the U.S. Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) published a final rule rescinding the regulatory definition of “harm” promulgated under the Endangered Species Act (ESA). How did the two executive agencies come to this decision, and might it mean going forward?
Endangered Species Act and regulations
The Endangered Species Act became law in 1973, with the goal of conserving and protecting endangered and threatened species and their habitats. Among other things, the ESA makes it illegal to “take” any species listed as endangered “within the United States or the territorial sea of the United States.” Under the ESA, the term “take" means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The FWS and NOAA were charged with implementing the ESA and created rules to help with that implementation. These rules further clarified the definition of “take” by defining additional words like “harm.”
In 1981, the FWS published a rule defining “harm.” According to the FWS at that time, “‘harm’ under the definition of ‘take’ in the [ESA] means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” In 1999, on the heels of Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (Sweet Home), in which the Supreme Court of the United States upheld the FWS’ definition of “harm,” NOAA published a rule defining “harm” in the same way.
The agencies’ reasoning for the change
In explaining their reason for rescinding the definition of harm, the agencies reveal that their biggest issue with definition is that it included “significant habitat modification or degradation.” FWS and NOAA say that this language changed the focus of the regulations from protecting endangered animals and plants to regulating land-use.
Interestingly, to bolster their argument for removing the definition of “harm” from the ESA regulations, FWS and NOAA also point to the 1995 Sweet Home decision. At first, it might not make sense that the agencies cite this case, since the Supreme Court upheld the definition of “harm.” However, the new rule cites Justice Scalia’s dissent as the crux of its argument. Scalia’s dissent hinged on the idea that the definition of “take,” throughout history, “when applied to wild animals, means to reduce those animals, by killing or capturing, to human control.” Because the definition of “take” is so well known, the word “harm,” which is part of the definition, should be read in that context—in other words, Scalia argued that taking should require an “affirmative act…directed immediately and intentionally against a particular animal,” and not an “omission that indirectly and accidentally causes injury to a population of animals.” Following this line of thinking, habitat modification and degradation that results in the taking of an endangered species would be an indirect taking of the species, not an affirmative act as Scalia thought was required under the ESA. Scalia also felt that the definition of “harm” in the regulations did not fit with the use of “take” throughout the ESA.
Further helping the agencies’ argument, the precedent relied on by the Supreme Court in Sweet Home was recently overturned. In Sweet Home, the majority of the Court relied on the Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., which established a doctrine that courts should defer to a federal agency’s interpretation of an ambiguous statute if Congress did not directly address the precise issue and if the agency’s interpretation was reasonable. In Sweet Home, the Court found that FWS’ interpretation the ESA was reasonable, and therefore it upheld the agency’s 1981 definition of “harm.” However, in 2024, the Supreme Court overturned the Chevron doctrine in Loper Bright Enterprises v. Raimondo. Although Loper Bright did not automatically overturn every case that relied on Chevron, according to the agencies, it “left open the possibility that the executive branch could…depart from regulations that do not match the single, best meaning of the statute[.]” Under the current administration, FWS and NOAA do not believe that including the previous definition of “harm” matches the “single, best meaning” of the ESA. This, coupled with Scalia’s dissent in Sweet Home, is the agencies’ basis for rescinding the definition of “harm.”
What’s next?
Unsurprisingly, several groups have already filed lawsuits in federal court against FWS and NOAA’s new rule. In fact, a coalition of environmental groups filed a request for an injunction against the rule in the Western District of Washington on the very day the rule was published. The groups, led by Earthjustice, argue that the new rule goes against the very meaning of the ESA since “any activity that destroys the habitat where imperiled fish and wildlife shelter, sleep, feed, or raise their young just as plainly destroys the species itself.” You can read their full complaint here. The Swinomish Indian Tribal Community, together with the Squaxin Island Tribe also filed a complaint against the rule in the Western District of Washington, alleging that rescinding the definition of “harm” will hurt fisheries that the tribes rely upon, and that the federal government is obligated by treaty to protect. Their complaint is available here. Essentially, the environmental groups and the tribes feel that the rescission of the rule will make it easier for lands with critical endangered species habitat to be opened for development, mining, logging, drilling, ranching, and farming, which will lead to less protection for the species.
On the other hand, FWS, NOAA, and proponents of the rule, such as the American Petroleum Institute, and the Associated General Contractors of America, applaud the rule change for “reduc[ing] unnecessary regulatory burdens.” The Nebraska Farm Bureau also supports the new rule, saying that it “effectively ends the practice of using broad, indirect interpretations of ‘harm’ to regulate land use.” The American Farm Bureau Federation has long found parts of the ESA overbroad, and calls for “modernizing” the Act, as well as promoting voluntary efforts to protect endangered species. In sum, these industry and agricultural interests feel that the rescinding the rule will create less uncertainty for landowners when it comes to endangered species and what constitutes a “taking.” If habitat modification or degradation are off the table, then landowners will have more flexibility to make decisions about their land without the fear of violating the ESA.
It is important to note that statutory language of the Endangered Species Act still requires agencies to consider whether an action would destroy or adversely modify an endangered species’ critical habitat when making decisions, so it remains to be seen how FWS and NOAA will interpret this part of the statute in the future. That being said, Congress is also considering legislation that would limit what land may be designated as critical habitat. That bill, HR 1897, is available here.
While the new rule is set to take effect on September 14, 2026, as always, we will have to wait and see how it plays out. Not only could lawsuits prohibit the new rule from being implemented, but down the line, a new presidential administration could also have the agencies restore the definition of “harm” to the ESA regulations. Congressional amendments to the ESA itself may also come into play.
If you’re interested in further reading on this subject, see the links below.
Babbitt v. Sweet Home Chapter of Communities for a Great Oregon
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.
Tags: endangered species act, endangered species, land use, Agricultural Land
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Did you know that the loudest land animal is the howler monkey? The howler monkey can produce sounds that reach 140 decibels. For reference, that is about as loud as a jet engine at take-off, which can rupture your eardrums.
Like the howler monkey, we are here to make some noise about recent agricultural and resource law updates from across the country. This edition of the Ag Law Harvest brings you court cases dealing with zoning ordinances, food labeling issues, and even the criminal prosecution of a dairy farm. We then look at a couple states proposing, or disposing, of legislation related to agriculture.
A zoning ordinance has Michigan landowners hogtied. The Michigan Supreme Court recently ruled that Michigan’s 6-year statute of limitations does not prevent a township from suing a landowner for alleged ongoing zoning violations, even if the start of landowner’s alleged wrongdoing occurred outside the statute of limitations period.
Harvey and Ruth Ann Haney (“Defendants”) own property in a Michigan township that is zoned for commercial use. Defendants began raising hogs on their property in 2006. Defendants started with one hog and allegedly grew their herd to about 20 hogs in 2016. In 2016, Fraser Township (“Plaintiff”) filed suit against Defendants seeking a permanent injunction to enforce its zoning ordinance and to prevent Defendants from raising hogs and other animals that would violate the zoning ordinance on their commercially zoned property. Defendants filed a motion to dismiss and argued that Plaintiff’s claims were barred because of Michigan’s 6-year statute of limitations. A statute of limitations is a law that prevents certain lawsuits from being filed against individuals after a certain amount of time has passed. In Ohio, for example, if someone were to be injured in a car accident, they would only have 2 years to bring a personal injury claim against the person who caused the accident. That’s because Ohio has passed a law that mandates most personal injury claims to be brought within 2 years of the date of injury.
In the Michigan case, Defendants argued that because their first alleged wrongdoing occurred in 2006, Plaintiff could not file their lawsuit against the Defendants in 2016. A trial court disagreed with Defendants and denied their motion to dismiss. Defendants took the motion up to the Michigan Court of Appeals, and the Court of Appeals found that Plaintiff’s claim was barred because of the 6-year statute of limitations. Plaintiff appealed to the Michigan Supreme Court, which overturned the Court of Appeals’ decision and held that Plaintiff’s claim was not barred. The Michigan Supreme Court reasoned that the presence of the hogs constitutes the alleged unlawful conduct of the Defendants, and that unlawful conduct occurred in 2006 and has occurred almost every day thereafter. The court concluded that because Defendants unlawful conduct was ongoing after 2006, Plaintiff’s claims were not barred by the statute of limitations. The case now goes back to the trial court to be tried on the merits of Plaintiff’s claims against Defendants.
Where there’s smoke, there’s fire. Family Dollar Stores, Inc. (“Family Dollar”) has found itself in a bit of nutty situation. Plaintiff, Heather Rudy, has filed a class action lawsuit against Family Dollar, alleging that Family Dollar has misled her and other consumers by marketing its Eatz brand Smoked Almonds as “smoked.” Plaintiff asserts that Family Dollar is being deceptive because its Smoked Almonds are not smoked over an open fire, but instead flavored with a natural smoke flavoring. Plaintiff’s claims against Family Dollar include violating the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”); breaches of express warranty and implied warranty of merchantability; violation of the Magnuson-Moss Warranty Act; negligent misrepresentation; fraud; and unjust enrichment.
Family Dollar filed an early motion to dismiss, arguing that Plaintiff has not stated a claim for which relief can be granted. A federal district court in Illinois dismissed some of Plaintiff’s claims but ruled that some claims against Family Dollar should be allowed to continue. Plaintiff’s claims for breaches of warranty, violation of the Magnuson-Moss Warranty Act, negligent misrepresentation, and fraud were all dismissed by the court. The court did decide that Plaintiff’s claims under ICFA unjust enrichment should stay. The court reasoned that Plaintiff’s interpretation that Family Dollar’s almonds would be smoked over an open fire are not unreasonable. Moreover, the court recognized that nothing on the front label of Family Dollar’s Smoked Almonds would suggest, to consumers, that the term “smoked” refers to a flavoring rather than the process by which the almonds are produced. The court even pointed out that competitors’ products contain the word “flavored” on the front of similar “smoked” products. Therefore, the court concluded that Plaintiff’s interpretation of Family Dollar’s Smoked Almonds was not irrational and her claims for violating the ICFA should continue into the discovery phase of litigation, and possibly to trial.
Undercover investigation leads to criminal prosecution of Pennsylvania dairy farm. A Pennsylvania Court of Appeals (“Court of Appeals”) recently decided on Animal Outlook’s (“AO”) appeal from a Pennsylvania trial court’s order dismissing AO’s petition to review the decision of the Franklin County District Attorney’s Office (“DA”) to not prosecute a Pennsylvania dairy farm (the “Dairy Farm”) for animal cruelty and neglect. An undercover agent for AO held employment at the Dairy Farm and captured video of the condition and treatment of animals on the farm, which AO claims constitutes criminal activity under Pennsylvania’s animal cruelty laws.
AO compiled a report containing evidence and expert reports documenting the Dairy Farm’s alleged animal cruelty and neglect. AO submitted its report to the Pennsylvania State Police (“PSP”) in 2019. The PSP conducted its own investigation which lasted for over a year, and in March 2020, issued a press release indicating that the DA would not prosecute the Dairy Farm.
In response, AO drafted private criminal complaints against the Dairy Farm and submitted those to the local Magisterial District Judge. The local Magisterial Judge disapproved all of AO’s complaints and concluded that the complaints “lacked merit.” AO then filed a petition in a Pennsylvania trial court to review the Magisterial Judge’s decision. The trial court dismissed AO’s petition and concluded that the DA correctly determined “that there was not enough evidence, based upon the law, to initiate prosecution against any of the Defendants alleged in the private criminal complaints.” AO appealed the trial court’s decision to the Court of Appeals which ended up reversing the trial court’s decision.
The Court of Appeals concluded that the trial court failed to view the presented evidence through a lens that is favorable to moving forward with prosecution and the trial court failed to consider all reasonable inferences that could be made on the evidence. The Court of Appeals observed that the trial court made credibility determinations of the evidence by favoring the evidence gathered by PSP over the evidence presented by AO. The Court of Appeals noted that a trial court’s duty is to determine “whether there was evidence proffered to satisfy each element of an offense, not to make credibility determinations and conduct fact-finding.” Additionally, the Court of Appeals found that the trial court did not do a complete review of all the evidence and favored the evidenced obtained by PSP over the evidence presented by AO. The Court of Appeals determined that had the trial court reviewed all the evidence, it would have found that AO provided sufficient evidence to establish prima facie cases of neglect and animal cruelty, which would have provided the legal basis for the DA’s office to prosecute the claims.
Lastly, the DA argued that no legal basis for prosecution exists because the Dairy Farm is protected by the normal agricultural operations exemption to Pennsylvania’s animal cruelty laws. However, the Court of Appeals found that the conduct of the Dairy Farm, as alleged, would fall outside the normal agricultural operations exemption because AO’s report demonstrates that the Dairy Farm’s practices were not the dairy industry norm.
Ultimately the Court of Appeals found that AO’s private criminal complaints did have merit and that the DA had enough evidence and a legal basis to prosecute AO's claims. The Court of Appeals remanded the trial court’s decision and ordered that the DA to go ahead and prosecute the Dairy Farm on its alleged animal cruelty violations.
Wyoming fails to pass legislation limiting what can be considered agricultural land. The Wyoming House of Representatives struck down a recent piece of legislation looking to increase the threshold requirement to allow landowners the ability to classify their land as agricultural, have their land appraised at an agricultural value, and receive the lower tax rate for agricultural land. Current Wyoming law classifies land as agricultural if: (1) the land is currently being used for an agricultural purpose; (2) the land is not part of a patted subdivision; and (3) the owner of the land derived annual gross revenue of $500 or more from the marketing of agricultural products, or if the land is leased, the lessee derived annual gross revenues of $1,000 or more from the marketing of agricultural products.
Wyoming House Bill 23 sought to increase the threshold amount of gross revenues derived from the marketing of agricultural products to $5,000 for all producers. The Wyoming Farm Bureau Federation and Wyoming Stock Growers associations supported the bill. Proponents of the bill argued that the intent of agricultural land appraisals is to support commercial agriculture, not wealthy landowners taking advantage of Wyoming’s tax laws. Opponents of the bill argued that House Bill 23 hurt small agricultural landowners and that the benefits of the bill did not outweigh the harms. House Bill 23 died with a vote of 34-25, failing to reach the 2/3 approval for bills to advance.
Oregon introduces legislation relating to overtime for agricultural workers. Oregon House Bill 4002 proposes to require agricultural employers to pay all agricultural employees an overtime wage for time worked over 40-hours in a workweek. House Bill 4002 does propose a gradual phase-in of the overtime pay requirements for agricultural employees. For the years 2023 and 2024, agricultural employees would be entitled to overtime pay for any time worked over 55 hours in a workweek. For 2025 and 2026, the overtime pay requirement kicks in after 48 hours. Then in 2027, and beyond, agricultural employers would be required to pay an overtime pay rate to employees that work more than 40 hours in a workweek.
Tags: Animals, Animal Cruelty, Agriculture, Agricultural Labor, Labor and Employment, overtime, tax, Agricultural Land, Land Value, Criminal Law, Food Labeling, Zoning, Statute of Limitations
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