Author: Jennifer Friedel

A significant change to the Endangered Species Act (“ESA” or the “Act”) was proposed on April 17, 2025 which could significantly change the landscape to which ESA is applied, quite literally. The U.S. Fish and Wildlife Service (“FWS”) and National Oceanic and Atmospheric Administration (“NOAA”) (collectively the “Services”) propose to eliminate the current regulatory definition of “harm” under the Act. The ESA declares it unlawful for any person to “take” an endangered or threatened species. The Act defines a “take” as acts which “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”^[i]In 1995, the Services, through the regulatory rulemaking process, defined “harm” to include significant habitat modification or degradation which actually kill or injure protected species by affecting behavior patterns.^[ii] This definition has proven problematic for energy producers, agriculturalists, and foresters whose privately owned land may encompass suitable habitat for endangered or threatened species, even though the species itself may not actually be found there. 

An extreme example of this came to a head in 2001, when owners of a Louisiana tree farm brought suit against FWS for designating 1,500 acres of the privately owned farm as critical habitat under the ESA because two historical breeding sites of the protected Mississippi gopher frog were located there even though the frog had not been observed there in nearly 40 years. Despite the ESA providing the Services authority to exclude areas from critical habitat designation where the benefits of such exclusion outweigh the designation,^[iii]conflict between farmers and ranchers in the southeast and application of the ESA to habitats for protected species such as the whooping crane, eastern indigo snake, gopher tortoise, red wolf, and others has intensified. The Services now propose to rescind the current definition of “harm” under the Act, stating that it is inconsistent with the statutory language, unnecessary, and does not reflect the single best meaning of the statutory text. The Services suggest that the word “harm” in the statute is clear enough without expounding further upon the term as the current regulatory definition does.

Though not yet final, the Services’ proposal to rescind the definition of “harm” is primed for legal challenges. The proposed rule would narrow the scope of the ESA’s reach by removing mention of habitat in consideration of whether one has harmed a protected species. This would have broad implications for energy producers, ranchers, loggers, and developers across the U.S. The proposed rule is open for public comment through May 19, 2025.^[iv]

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^[i] 16 U.S.C. 1532(19) (emphasis added).

^[ii] 50 CFR 17.3. This definition was upheld by the U.S. Supreme Court in Babbit v. Sweet Home Chapt. Comms. for Ore. 51 U.S. 687 (1995). relying on the Chevron doctrine of agency deference which has since been overturned. See Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).

^[iii] 16 U.S.C. 1533(b)(2).

^[iv] https://www.regulations.gov/document/FWS-HQ-ES-2025-0034-0001

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Friedel, Jennifer. “Defining Harm. Proposed Changes for the Endangered Species Act.” Southern Ag Today 5(19.5). May 9, 2025. Permalink

‘Tis the season for camo, foothills that are sprouting pickup trucks, and men, women and children afoot on varying terrain armed with rifles, bows, and dogs. If you are a landowner, there is a good chance you have been approached by someone seeking permission to hunt on or traverse your land. Before counting points on bucks, here are some points for landowners’ consideration to prepare for this season.

Get a signed lease. A hunting lease will provide clarity and protection to all parties by defining access, laying out expectations, addressing property management and use, and providing some liability protections. Agreements should be documented in writing with detail to prevent any confusion or misunderstanding of the agreed terms and as insurance should a dispute or issue arise. When drafting a lease, be specific and thorough. The danger of a “simple” lease is that most lease disputes don’t arise over terms that are clearly set forth in the lease, but rather most disputes arise from terms that are not addressed in the lease. Among the important lease terms such as naming the lessor(s) and lessee(s), payment terms, length of lease, liability, identifying the property and access points, remedies for breach and the like. A thorough hunting lease should address management kills, ATV use, fence and trail repairs, fallen trees, feeding plots, use and location of outbuildings, blinds and tree stands, whether guests are permitted and how many at once, communication with lessor, whether the hunting rights are exclusive or nonexclusive, wildlife that may be hunted, known or potential hazards, and other considerations of important to either party. If a dispute arises, a court will first look at the lease, and only the lease, to resolve it. Absent extenuating circumstances, additional agreements or promises which are not reflected in the lease itself will not be enforced. 

Reinforce to anyone hunting on your land that it is their responsibility to know the property boundaries. It is unlawful for hunters to track or retrieve wounded game on private property without permission. Hound hunters should check to see if their state has a right to retrieve law. These statutes generally allow the owners of hunting dogs to enter upon the land of another without permission for the purpose of retrieving their hunting dogs. Virginia’s 100-year-old statute was recently challenged by a group of landowners arguing that Virginia’s right to retrieve law amounted to a taking of private property without just compensation, converting their private property to public use.^[1] Despite alleging that hounds were a nuisance which had killed a landowner’s chickens and would spook horses allegedly justifying compensation from the state, the circuit court held that the law was merely an exception to criminal trespass and did not deprive the landowners of any property rights. In response, Virginia’s Board of Wildlife Resources considered two proposals which would have required hound hunters to use GPS collars and make reasonable attempts to prevent their dogs from entering another’s property. Though it was questioned whether the Board had authority to require such measures, both were ultimately rejected. 

Hunting leases are contractual agreements to which every other basic principle of contract law applies. Make sure leases are written, thorough, and reviewed by a knowledgeable agricultural attorney licensed in your jurisdiction. If you are hunting on your own land or that of others, know the property boundaries and as necessary, consult with a local attorney on your state specific laws related to one of the oldest practices in the world.

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^[1] Medeiros, et al v. Virginia Dep’t of Wildlife Res., Record No. 230691 (Va. Sept. 26, 2024) (unpub. order).

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Friedel, Jennifer Shaver. “Preparing for the (Camo) Season.” Southern Ag Today 4(47.5). November 22, 2024. Permalink

On May 17, 2024, the USDA’s new “Product of the USA” rule took effect nationwide. At your local meat counter, “Product of the USA” now has a new meaning. Previously, labels using “Product of the USA,” “Made in the USA” and use of the American flag imagery could be used whenever any single part of the processing of meat, poultry and eggs occurred within the U.S. This meant that even where the only processing involved was repackaging on U.S. soil, labels could claim that the product was “Made in the USA.” In a 2022 USDA conducted study, 63% of consumers mostly incorrectly believed that “Product of the USA” meant that all production steps occurred in the U.S., an additional 21% reported not knowing what “Product of the USA” meant, while only 16% of consumers could correctly define this marketing claims.^[i]

On March 11, 2024, USDA Secretary Tom Vilsak announced USDA’s new rule for labeling meat, poultry, and eggs as “Product of the USA” or “Made in the USA,”, as well as the use of the American flag on labels. Under the new rule, these claims may only be used if the product is derived from animals born, raised, slaughtered, and processed in the United States. Meaning, every step from birth to processing must be done in the U.S. in order to use these marketing claims. The same is true whether it is a single-ingredient product, such as ground beef, or a multi-ingredient product such as pork sausage. With the exception for spices and flavorings, which may be of foreign origin, each individual ingredient must be of U.S. origin and entirely processed within the United States. Compliance for those choosing to use these marketing claims is mandated by January 1, 2026. The new rule is intended to better align with consumer understanding of the label claims. In the announcement of the new rule, Vilsak stated that consumers should be able to rely on the packaging claims of meat, poultry and egg products which they are purchasing, without hidden nuances and misleading claims. 

As we saw with country-of-origin labeling (COOL), Mexico and Canada have openly expressed objection to the new Product of the USA rule in terms of compliance with existing trade agreements, suggesting that the rule violates the United States-Mexico-Canada Agreement (USMCA) and U.S. obligations to the World Trade Organization by discriminating against Mexico and Canada exports and ignoring economic integration principles. Further, Mexico alleges that the rule hinders binational production chains, ignores North America’s extensive integration of meat and livestock industries, and may result in food chain disruptions.^[ii] It is anticipated that the countries will consult and work towards a mutually agreeable resolution, as is first required by USMA’s dispute resolution process.

This conflict follows on the heals of a U.S.-Mexico USMCA dispute regarding Mexico’s ban on biotech and genetically modified (GM) corn, initially in tortillas and dough, with the intent to gradually ban the use of biotech and GM corn in all products intended for human and animal consumption. The U.S. alleges that Mexico’s ban is not based in science and undermines market access guaranteed by the USMCA. In August of 2023, the U.S. established a dispute panel under provisions of the USMCA in an effort to ensure that U.S. producers continue to have “full and fair access to the Mexican market.”^[iii] A hearing on this dispute is scheduled for June 2024 with an expected report and decision by the dispute panel in November 2024.

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^[i]https://www.fsis.usda.gov/sites/default/files/media_file/documents/Product_of_USA_Consumer_Survey_Final_Report.pdf

^[ii] Gobierno De Mexico, Press Release form the Ministry of Agriculture. March 11, 2024. https://www.gob.mx/agricultura/prensa/press-release-from-the-ministry-of-agriculture

^[iii] Office of the U.S. Trade Representative, Press Release. August 17, 2023. https://ustr.gov/about-us/policy-offices/press-office/press-releases/2023/august/united-states-establishes-usmca-dispute-panel-mexicos-agricultural-biotechnology-measures

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Friedel, Jennifer. “Product of the U.S.A. Rule and Trade Implications.” Southern Ag Today 4(24.5). June 14, 2024. Permalink

In September of 2022, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network, more commonly known as “FinCEN,” issued the Beneficial Ownership Information Reporting Rule^[i] (“Reporting Rule”) under the bipartisan Corporate Transparency Act^[ii], requiring disclosure of the identity of beneficial owners of small business entities. This new rule is intended to prevent the operation of shell companies by criminal actors such as terrorism financiers, drug traffickers, human traffickers, money launderers, and the like. The Treasury Department estimates that criminal actors generate $300 billion in illicit proceeds through shell companies every year. 

It is important to note that agricultural business entities are not exempt from this Reporting Rule which requires disclosure beginning on January 1, 2024. If your farm, ranch, or agricultural operation is set up as a legal business entity (such as an LLC, LLP, business trust, corporation, etc.) created through your state corporation commission, secretary of state, or other similar office, your operation is likely subject to the new Reporting Rule. There are 23 specific entity types exempt from the Reporting Rule, largely composed of publicly traded entities, financial institutions, insurance companies, tax-exempt entities, and large operating companies, but there are no specific exemptions for agricultural entities. 

There are several online tools available to help you determine if your operation is a reporting entity as defined by the rule. If you determine that your operation is subject to the Reporting Rule, you must identify and report the beneficial owners of your farming and ranching business. A beneficial owner is any individual who exercises substantial control over the entity or who owns or controls 25% or more ownership interest in the entity. Those exercising substantial control include those who are senior officers, those with authority to appoint or terminate senior officers, important decision-makers, and those who otherwise uniquely exercise substantial control over the entity through contracts, relationships, or other agreements or arrangements. The rule provides limited exceptions for minor children, agents, employees, inheritors and creditors. Entities must report the beneficial owners’ name(s), date(s) of birth, address(es), and government-issued identification(s) such as a U.S. passport or driver’s license.

Entities required to report created on or after January 1, 2024 have 30 days from the entity’s creation to complete the online reporting requirements. Entities created prior to January 1, 2024 will have until January 1, 2025 to complete their reporting. Once an entity is required to report, any changes in beneficial ownership must also be reported within 30 days of any such change. For instance, if a new member or partner joins the entity and/or otherwise becomes a beneficial owner as defined by the rule, that must also be reported within 30 days of the effective change.

How does this practically affect farmers and ranchers? The Reporting Rule does not affect an entity’s operations, rather, its purpose is to identify those with a vested interest in the entity. The most important thing to remember is to timely comply with the filing requirements and then continue with your normal operations. The rule aims to hinder financial criminals from benefiting from their ill-gotten gains and was not implemented as a means to exercise control or oversight over your legally-run business entity.

To learn more about whether your agricultural operation is subject to the Reporting Rule and who and how you must report, visit www.fincen.gov/boi-faqs and FinCEN’s Small Entity Compliance Guide.^[iii]

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^[i] 31 CFR 1010.380

^[ii] 31 USC 5336 §6403

^[iii] (Tidgren, AALA Annual Agricultural Law Educational Symposium, 2023)

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Friedel, Jennifer. “The New Small Business Reporting Rule and Your Farm.” Southern Ag Today 3(51.5). December 22, 2023. Permalink

Lifelong lessons in work ethic are often learned as a kid bailing hay on hot summer days. It’s summer, the kids are out of school, and many are looking for summer jobs. It’s a good time to take inventory of the measures agricultural operators need to take to keep minors safe and stay in compliance with state and federal child labor laws. In addition to the federal child labor laws discussed herein, there are likely additional state laws that should be fully explored and familiarized prior to employing a minor in an agricultural operation.  

When hiring youth to assist with farm chores, there are various factors that can affect what duties a minor may or may not legally perform. Prudent operators would certainly never intentionally assign dangerous farm tasks to minors. However, what the law considers “hazardous” may vary from even the most reasonable operators’ idea of dangerous. For instance, the law very specifically addresses whether a minor may assist with, or even ride on a tractor. Other common tasks such as feeding bulls, checking on calving cows, and spraying weeds or spreading fertilizer may or may not be permissible, depending on a number of factors.

The duties that a minor may perform on an agricultural operation varies depending upon their age. Under the Fair Labor Standards Act (“FLSA”), children under the age of 12 must have parental consent to work on a small farm (as defined by FLSA) and are exempt from federal minimum wage provisions. Children the age of 12 or 13 may work with parental consent or where the child’s guardian is also employed. If 14 years of age, a minor may work without parental consent but only in non-hazardous agricultural jobs. Once a minor reaches the age of 16, they may perform any farm job including those deemed hazardous by the Secretary of Labor. Minors that are 16 or older may also work at any time, including during school hours, while youth under age 16 may only work outside of regular public school hours, even if home schooled, unless employed by their parents or guardian. There are also limitations on the number of hours minors may work, depending upon their age and whether school is in session in the local public school district.

The Secretary of Labor has identified 11 categories of duties deemed “hazardous” that minors under the age of 16 may not perform. Those range from operating a tractor with over 20 PTO horsepower to entering a pen or yard with male breeding stock or with pigs or cows that have recently given birth, to handling agricultural chemicals which include the word “danger” or “poison” with skull and crossbones or “warning” on the label. A full list of these hazardous activities as well as other federal laws regarding the employment of minors in agriculture, can be found in the U.S. Department of Labor’s (“DOL”) Child Labor Bulletin 102. Exemptions to these hazardous activity prohibitions may apply to minors employed by their parents or enrolled in certain formal training or vocational programs. 

While federal law does not require a work permit for minors employed in agriculture, some states may require one. The DOL maintains a comparison of federal and state requirements of child labor laws that is searchable by state here. However, even where not required, it may be prudent to request a state issued age certification in order to protect employers from unintentional violations of the federal age requirements. 

There may be no better place to learn the value of hard work than a farm or ranch. When providing opportunities to minors, be prudent, ensure you’re in compliance, and keep our youth safe. Don’t forget to keep the lemonade flowing. 

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Friedel, Jen. “What to Know About Employing Minors in the Summer and Beyond.” Southern Ag Today 3(25.5). June 23, 2023. Permalink

Photo by Stephen Andrews