TOPEKA, Kan. (RFD-TV) — Compliance with the Endangered Species Act continues to evolve, with recent administrative actions offering some relief for farmers and ranchers while court decisions create new uncertainty over how the law applies to agricultural operations.
Roger McEowen with the Washburn School of Law joined Market Day Report to discuss three recent developments involving the scope and enforcement of the Endangered Species Act.
Definition of ‘Harm’ Rescinded
In his interview with RFD-TV, McEowen said one recent development could provide significant relief for agricultural producers. A federal rule finalized last month rescinded the long-standing regulatory definition of “harm” under the Endangered Species Act.
For years, the government interpreted the term broadly, meaning landowners could potentially face ESA concerns even when they had not directly injured or killed a protected species.
Under the previous interpretation, modifying protected-species habitat could potentially constitute harm.
McEowen said the new rule clarifies that habitat modification by itself does not constitute harm, which could reduce regulatory concerns for producers managing private agricultural land.
Grizzly Bear Management Could Shift
Another significant development involves grizzly bears. The U.S. Fish and Wildlife Service has proposed giving states and tribes greater flexibility in managing grizzly bear populations.
McEowen said the change represents a shift toward allowing local wildlife officials to have more authority over management decisions.
He said state and tribal officials are often better positioned to respond to local wildlife conflicts than federal officials in Washington, D.C.
For Western landowners, the potential decentralization of grizzly bear management could provide greater flexibility when dealing with wildlife issues on private property.
Court Decision Creates New Concerns
While those two developments could benefit producers, McEowen said a recent federal court decision in California moves in the opposite direction.
A federal court struck down newer ESA regulations, effectively bringing back an older, more expansive regulatory framework.
That decision could have significant implications for agricultural projects involving federal permits or federal funding.
McEowen said those projects may now be subject to more extensive endangered-species consultation requirements.
He described the three developments as a case of “two out of three” moving in a favorable direction for producers, while the court decision creates an additional regulatory burden.
Uncertainty Remains the Biggest Challenge
For farmers and ranchers trying to make long-term management and financial decisions, McEowen said the biggest concern remains uncertainty.
Even when regulations appear settled, administrative actions and court decisions can change how the Endangered Species Act is applied.
Producers should therefore avoid assuming that current rules will necessarily remain in place, particularly when making significant investments or management decisions involving protected species or habitat.
McEowen said conservation efforts work best when private landowners are treated as partners rather than targets.
He believes the current administration has moved further in that direction but said Congress ultimately needs to provide clearer guidance about the balance between species protection and private landowner rights.
Until then, producers will continue to navigate an evolving legal landscape where ESA requirements can change through both regulatory action and court decisions.
READ MORE: ESA Developments Continue to Shape Agriculture - Firm to Farm
