Authors: Jesse J. Richardson, Jr. and Paul Goeringer



A recent Missouri case provides an important reminder of the importance of how property is titled and the implications of attempting to change the titling of property. The story in Sielert v. Sielert, 737 S.W.3d 210 (Mo. Ct. App. 2026) begins with brothers Loren, Brian, and David Sielert receiving title to the family farm from their mother as joint tenants with the right of survivorship. With a joint tenancy, the ownership interest in a deceased co-owner passes to the other co-owners equally. In this case, Loren and David passed away, and Brian claimed sole ownership of the farm.



However, prior to his death, Loren recorded a beneficiary deed (also called transfer on death deed) that conveyed his interest to his son, Jordan, and recited that the deed severed the joint tenancy with right of survivorship and converted Loren’s interest to a tenancy in common. A tenancy in common is the other major way that multiple landowners can hold property. In a tenancy in common, the ownership interest held by a deceased owner passes to their heirs or under their will. In this case, if Loren held his 1/3 interest as a tenant in common, that 1/3 interest would pass to his son Jordan.



Therefore, the question in this case was whether Brian held a 100% interest in the farm or whether Brian owned a 2/3 interest and his nephew Jordan a 1/3 interest. Brian filed suit against his nephew, claiming 100% ownership interest.



A co-owner may sever a joint tenancy with right of survivorship by conveying their interest. The rules are fairly complex, so you should consult with an attorney if you have specific questions. However, a beneficiary deed conveys the property at the death of the grantor (in this case, Loren). The language in the beneficiary deed purporting to sever the joint tenancy was not enough to sever the joint tenancy. The court found that at Loren’s death, his interest in the property instantaneously went to the surviving joint tenants. Therefore, there was nothing left for the beneficiary deed to convey. Brian owns 100% of the family farm.



This case reminds us of the importance of the way property is titled. If Mom wanted the last survivor of her three children to own the family farm, the joint tenancy with right of survivorship would accomplish that goal. However, any of the three children could thwart that goal by conveying the property and severing the joint tenancy. This case also illustrates the limitations of conventional forms of property ownership. Mom perhaps should have formed a limited liability and included agreements to ensure that her goals were accomplished. The case also teaches important concepts about a beneficiary (or transfer on death) deed. These deeds allow a property owner to retain ownership until their death and convey the property without going through probate. However, like any other legal document, you should consult with an attorney and give the matter considerable thought before using that tool. Ironically, it appears that Loren consulted an attorney, but the attorney did not completely understand the nature of a beneficiary deed. The bottom line is that estate and transition planning is complex and involves difficult family dynamics. Every step should be well thought out and discussed with the family and an attorney.



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Recommended citation format: Richardson, Jr., Jesse J., and Paul Goeringer. &#8220;<a href="https://southernagtoday.org/2026/08/25/the-importance-of-titling-of-property/">The Importance of Titling of Property</a>.&#8221; Southern Ag Today 6(35.5). August 28, 2026. <a href="https://southernagtoday.org/2026/08/25/the-importance-of-titling-of-property/">Permalink</a>

The Importance of Titling of Property

U.S. agricultural trade has faced a lot of headwinds in recent years. Events such as the global pandemic, international military conflicts, increased competition, a slowing global economy, domestic weather events, a 75 year low in cattle inventory, slumping crop prices, high input prices, and a relatively strong dollar have adversely impacted trade flows and the overall U.S. farm economy.&nbsp; These events, along with trade policy battles with our major export buyers – China, Canada, Mexico, and the European Union, would lead many to conclude that U.S. ag exports have likely plummeted amidst these challenging global events.



Last year, U.S. ag exports did finish 12% off its record high value of $196 billion in 2022 but have remained in the $170 billion dollar level for four of the past five years (2021-2025), compared to averaging $143 billion during the previous five-year period (2016-2020). Amidst multiple trade challenges, the most recent five-year period has actually been the highest U.S. ag export value in history.



In reality, lower prices for several commodities have constrained recent U.S. export values.&nbsp; Isolating on trade volume, U.S. export quantities during this turbulent period have remained near record levels.&nbsp; USDA data reveal that aggregate ag export quantities for 2025 are the third highest on record and only 2.5% below the largest level achieved in 2021.



Looking at the data more closely, one market, China, accounted for over 100% of the loss in U.S. ag export value since 2022. The value of U.S. ag exports for 20 of our top 25 foreign markets increased from 2022 to 2025, with some of our major ag export markets like Mexico, the European Union, South Korea, Colombia, Vietnam, Taiwan, and the Dominican Republic finishing 2025 at record high levels.&nbsp; From an individual commodity/ag product perspective, ethanol, corn, dairy products, and tree nuts hit record export values during the past year.



Plus, the overall strength in U.S. ag exports is continuing so far in 2026. Through the first half of this year, U.S. ag exports are up 7% in value (and 10% in volume).  At this pace, U.S. ag exports for 2026 could end the year exceeding $180 billion – second highest on record.  Most of the gains so far in 2026 can be attributed to a rebounding Chinese market &#8212; up 43% in value and 115 % in quantity. Notable increases in export value during the first six months of 2026 include soybeans, up 33%, soybean meal up 20%, ethanol up 21%, tree nuts up 28%, fresh fruits and vegetables, both up 11%; and distilled spirits, up 26%.  But traditional southern crops like tobacco, rice, and cotton continue their downward trends, off 32%, 14%, and 6%, respectively, so far in 2026.



<figure class="wp-block-image size-full"><img loading="lazy" decoding="async" width="2310" height="1155" src="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4.png" alt="" class="wp-image-44684" srcset="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4.png 2310w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4-1024x512.png 1024w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4-1536x768.png 1536w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4-768x384.png 768w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.4-2048x1024.png 2048w" sizes="auto, (max-width: 2310px) 100vw, 2310px" /></figure>



Recommended citation format: Snell, Will. &#8220;<a href="https://southernagtoday.org/2026/08/25/the-resiliency-of-u-s-ag-exports/">The Resiliency of U.S. Ag Exports</a>.&#8221; Southern Ag Today 6(35.4). August 27, 2026. <a href="https://sat-wp.afpc.tamu.edu/2026/08/26/the-resiliency-of-u-s-ag-exports/↗">Permalink</a>

The Resiliency of U.S. Ag Exports

Sorghum and corn prices move together, but not in lockstep (Figure 1A). For a sorghum producer, the spread between them can matter as much as the direction of corn prices. Since 1989, the monthly spread has ranged from a $1.72 discount to a $1.47 premium, and the largest swings have come recently (Figure 1B). In June 2026, sorghum averaged 17 cents above corn, yet USDA&#8217;s 2025/26 season-average estimates imply a 60-cent discount for the year. Relative prices can change that fast.



A sorghum grower faces two price risks. The first is the broad grain-price risk sorghum shares with corn, and corn futures have long served as the cross-hedge. The second is the risk that sorghum moves against corn, widening or narrowing the spread. Nothing has priced that one. On August 24, 2026, CME Group listed a contract that does (CME Group 2026a).



Export exposure is a major driver of spread moves. USDA estimates 2025/26 exports at 210 million bushels against 230 million bushels of domestic use, so exports account for about 48 percent of the two combined (Figure 2). For 2026/27, USDA projects 170 million bushels of exports and 140 million bushels of domestic use. The export share rises to 55 percent even though exports fall, because domestic use falls farther.



Historically, a higher export-to-domestic-use ratio has come with a stronger sorghum price relative to corn. From 2006/07 through 2024/25, moving that ratio from 1.0 to 2.0 was associated with a 27-cent-per-bushel improvement in the spread, and the relationship accounts for 57 percent of the variation in price (Figure 3). It is descriptive, not causal. Production, freight, trade policy, and feed demand all move both exports and domestic use. The 2025/26 estimate sits about 34 cents below the fitted line, a reminder that the ratio measures exposure rather than a complete pricing model.



Sorghum futures (MILO) trade as a differential to CBOT corn rather than as a flat price, the first sorghum contract since the Kansas City Board of Trade delisted its own in 1999. The two risks come apart. Corn futures manage the level. MILO manages the spread.



Consider a grower expecting to sell 50,000 bushels. Ten MILO contracts match that volume. A grower who fears sorghum will weaken relative to corn sells MILO. A 30-cent decline in the spread would cut the crop&#8217;s relative value by about $15,000, and a 30-cent decline in MILO would return about that much on the short position, before commissions and residual basis risk.



One caution about the word basis. MILO prices the sorghum-corn differential, not a local cash basis, and it settles to no cash index. Settlement is by physical delivery of sorghum to exchange-approved elevators in Kansas City, Wichita, Hutchinson, and Salina at a 6 to 12 cent discount per bushel (CME Group 2026b). There are no delivery point in the South. MILO will converge to an interior Kansas spread set by feeders and ethanol plants, while much of the region prices against Gulf export loadings. Whether the two track closely enough to hedge is an open question, and one that groups like the National Sorghum Producers has been raising.Liquidity will decide the rest. Producers with grain to sell are natural short hedgers. Feeders, ethanol plants, and other end users are natural longs. Merchandisers and exporters may take either side. If participation generates sufficient trading volume, open interest, and two-sided liquidity, sorghum gains a public price for a risk that has never had one. If it doesn’t, that poses a whole new set of risks for growers.



Figure 1 &#8211; Sorghum prices track corn closely; the relative spread is the key signal 



Panels: A. U.S. monthly average prices received by farmers. B. Sorghum price minus corn price. January 1989 through June 2026.



<figure class="wp-block-image size-full"><img loading="lazy" decoding="async" width="948" height="640" src="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-1.png" alt="" class="wp-image-44674" srcset="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-1.png 948w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-1-767x518.png 767w" sizes="auto, (max-width: 948px) 100vw, 948px" /><figcaption class="wp-element-caption">Source: USDA ERS Feed Grains Database and USDA NASS Agricultural Prices. Note: June 2026 sorghum premium equals sorghum price minus corn price.</figcaption></figure>



Figure 2 &#8211; Exports are a large and volatile component of U.S. sorghum use



Marketing-year disappearance by use category, with exports as a share of total use; 2006/07–2026/27



<figure class="wp-block-image size-full"><img loading="lazy" decoding="async" width="952" height="498" src="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-2.png" alt="" class="wp-image-44675" srcset="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-2.png 952w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-2-767x401.png 767w" sizes="auto, (max-width: 952px) 100vw, 952px" /><figcaption class="wp-element-caption">Source: USDA WASDE, August 2026; USDA ERS Feed Grains Database. Note: USDA estimates 2025/26 exports at 210 million bushels against 230 million bushels of domestic use, a 48 percent export share. For 2026/27, it projects exports of 170 million bushels and domestic use of 140 million, a 55 percent share. Hatched bars mark the estimate and the projection. The black line, read against the right axis, shows exports as a share of domestic use plus exports.</figcaption></figure>



Figure 3 &#8211; Heavier export dependence is historically associated with stronger sorghum pricing: 2006/07 – 2024/25



Season-average sorghum premium/discount vs. exports divided by domestic use; Actual years used for the historical fit



<figure class="wp-block-image size-full"><img loading="lazy" decoding="async" width="982" height="594" src="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-3.png" alt="" class="wp-image-44676" srcset="https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-3.png 982w, https://southernagtoday.org/wp-content/uploads/2026/08/6.35.3-3-767x464.png 767w" sizes="auto, (max-width: 982px) 100vw, 982px" /><figcaption class="wp-element-caption">Source: USDA WASDE, USDA ERS Feed Grains Database, and USDA season-average farm prices. Note: Ordinary least squares fit on actual observations for 2006/07 through 2024/25, with a 95 percent confidence band. Moving the ratio from 1.0 to 2.0 lifts the fitted spread 27 cents per bushel, from a 24-cent discount to roughly break-even. R² of 0.57. The fitted spread crosses zero at a ratio of 1.88. The 2026/27 projected ratio of 1.21 implies an 18-cent discount, within two cents of USDA&#8217;s own forecasts of $4.30 for sorghum against $4.50 for corn. The 2025/26 estimate and 2026/27 projection are shown as open markers and are not used in the fit. The relationship is descriptive, not causal.</figcaption></figure>



Recommended citation format: Calil, Yuri. &#8220;<a href="https://southernagtoday.org/2026/08/25/a-new-futures-contract-for-the-sorghum-corn-spread/">A New Futures Contract for the Sorghum-Corn Spread.</a>&#8221; Southern Ag Today 6(35.3). August 26, 2026. <a href="https://southernagtoday.org/2026/08/25/a-new-futures-contract-for-the-sorghum-corn-spread/">Permalink</a>



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References



CME Group. 2026a. “CME Group Launches Sorghum Basis Futures to Meet Global Feed, Export, and Biofuel Demand.” Press release, July 21. <a href="https://www.cmegroup.com/media-room/press-releases/2026/7/21/cme_group_launchessorghumbasisfuturestomeetglobalfeedexportandbi.html">https://www.cmegroup.com/media-room/press-releases/2026/7/21/cme_group_launchessorghumbasisfuturestomeetglobalfeedexportandbi.html</a>



CME Group. 2026b. “FAQ: Sorghum Futures.” July 21. <a href="https://www.cmegroup.com/articles/faqs/faq-sorghum-futures.html">https://www.cmegroup.com/articles/faqs/faq-sorghum-futures.html</a>



U.S. Department of Agriculture, Economic Research Service. 2026. Feed Grains Database. Updated August 13. https://www.ers.usda.gov/data-products/feed-grains-database



U.S. Department of Agriculture, National Agricultural Statistics Service. Agricultural Prices. Monthly prices received by farmers, January 1989 through June 2026.



U.S. Department of Agriculture, World Agricultural Outlook Board. 2026. World Agricultural Supply and Demand Estimates, WASDE-674. August 12. https://www.usda.gov/oce/commodity/wasde/wasde0826.pdf



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Recommended citation format: Calil, Yuri. &#8220;<a href="https://southernagtoday.org/2026/08/25/a-new-futures-contract-for-the-sorghum-corn-spread/">A New Futures Contract for the Sorghum-Corn Spread.</a>&#8221; Southern Ag Today 6(35.3). August 26, 2026. <a href="https://southernagtoday.org/2026/08/25/a-new-futures-contract-for-the-sorghum-corn-spread/">Permalink</a>

A New Futures Contract for the Sorghum-Corn Spread

James Mitchell, Josh Maples, Kenny Burdine, and David Anderson



On Friday, August 21, 2026, President Trump announced that the United States would allow 300,000 metric tons of ground beef to enter the country over the next 90 days without being subject to out-of-quota tariffs. The announcement also stated that these imports would be sold at 25% below current market prices. This announcement comes against the backdrop of record U.S. cattle prices, historically low domestic cattle inventories, realignment in the domestic beef packing sector, continued uncertainty surrounding the reopening of the southern border to Mexican feeder cattle, and escalation of the war with Iran.



This article provides additional context on what was announced last Friday and discusses the potential impacts for cattle producers and the broader U.S. cattle industry.



How Much is 300,000 metric tons?&nbsp;



To put the size of the announcement into perspective, USDA currently forecasts 2026 U.S. total commercial beef production at 25.04 billion pounds and beef imports at 6.13 billion pounds. An additional 300,000 metric tons is equivalent to approximately 661.4 million pounds of beef. Relative to USDA’s current annual forecast, that would represent roughly an 11% increase in U.S. beef imports and add about 2% to total domestic beef supplies.



The impact becomes much more pronounced when we consider that these imports are expected to arrive within a 90-day period. If an additional 661.4 million pounds of beef were concentrated in the fourth quarter, it would increase expected fourth-quarter beef imports by approximately 51% and increase total fourth-quarter domestic beef supplies by about 8%. That would make the fourth quarter of 2026 the largest fourth quarter for U.S. beef supplies on record.



Some Important Caveats



The data above assumes that the 300,000 metric tons imported was in addition to already expected beef imports.&nbsp; It’s more likely that expanding the quota would mean that the beef already expected to come in would be imported with no tariff.&nbsp; While total imports will probably be larger, the net increase is unlikely to be the full 300,000 metric tons.&nbsp;



It is also important to clarify what type of beef the United States imports. Most beef imports are lean beef trimmings that augment domestic ground beef supplies.&nbsp; The U.S. does not really import ground beef.&nbsp; Additional imports would likely have a much larger impact on 90 percent lean beef trimmings prices and cull cow prices.&nbsp; Ninety days is also a very short time period.&nbsp; It is unclear how many beef exporting countries have enough available supplies to ship that much beef into the U.S. market.



While there are many unknowns with respect to implementation, the ninety-day window also creates some uncertainty with respect to timing. In some cases, countries will reach their TRQ levels quickly when they become available. For example, if this additional TRQ were shared across trading partners, it would incentivize each those partners to send beef into the US as soon as possible while the quota is available. That could mean that relatedly large quantities of beef imports are possible in a relatively short period of time.



Will this impact cattle prices?



While there are still a lot of questions to be answered, this does have the potential to impact cattle prices at a time when many producers are beginning to market calves. An unexpected surge in beef imports over a 90-day period could put significant downward pressure on U.S. cattle prices. We can look to last fall for some indication of the potential price response.



Recall that on October 16, 2025, President Trump announced a plan aimed at lowering U.S. beef prices that included expanding the tariff-rate quota (TRQ) for Argentine beef imports and relaxing tariffs on Brazilian beef imports. The figure below shows the price reaction in Arkansas following that announcement. At the time, Arkansas steer calves were averaging $421/cwt. Two weeks later, steer calf prices had fallen $41/cwt to $380/cwt. Over the same two-week period, Arkansas feeder steer prices declined $28/cwt, from $367/cwt to $339/cwt.



Futures market reactions were mixed on Friday.&nbsp; The September 2026 feeder cattle futures contract was down more than $6/cwt when trading opened at 8:30 a.m. CST. &nbsp;The nearby live cattle contract was down more than $4 per cwt with all other contracts down, as well.&nbsp; But by early afternoon, most feeder and live cattle contracts had rebounded to positive territory.&nbsp; The potential market implications of this announcement were, arguably, larger than those of last fall’s news, making the ultimate price impact difficult to project. &nbsp;&nbsp;But it appears that the futures market quickly discounted this news of more beef imports.



Will this impact herd expansion?&nbsp;



Fundamentally, this announcement does not help the U.S. cattle industry rebuild the herd. Producers are already facing higher input costs, particularly for fuel and fertilizer, while drought conditions have expanded across much of the major cattle-producing states. Those factors were already making herd expansion a difficult decision. Producers must now also consider the potential for unexpectedly lower cattle prices and increased market volatility at a time when retaining heifers and expanding cow inventories requires a significant long-term financial commitment.



At best, this announcement could delay the beginning and/or limit the pace of U.S. herd rebuilding. At worst, if the resulting price pressure and uncertainty are large or persistent enough, it could cause producers to abandon expansion plans and create longer-lasting damage to rebuilding efforts.



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Recommended citation format: Mitchell, James, Josh Maples, Kenny Burdine, and David Anderson. &#8220;<a href="https://southernagtoday.org/2026/08/18/thats-a-lot-of-beef/">That’s A Lot of Beef!</a>&#8221; Southern Ag Today 6(35.2). August 25, 2026. <a href="https://southernagtoday.org/2026/08/18/thats-a-lot-of-beef/">Permalink</a>

That’s A Lot of Beef!

Row crop farmers are price takers with little to no influence on the price the market sets for their goods. Therefore, managing costs and yield is very important to maintaining profitability. It is a difficult balance meeting each crop’s basic fundamental needs, such as water or fertilizer, while also finding ways to reduce/maintain costs. The goal is to be more efficient with inputs without sacrificing, or hopefully increasing, yield. We’ve seen new technologies, such as precision agriculture, that have enabled more efficient use of inputs. New technology and seed varieties have also increased yield, but all of these advances have costs associated with them. Added to those costs is the significant increase in input prices that has occurred over the last several years. So the question is, have yield increases offset rising input costs?



Utilizing Mississippi as an example, yield increases vary significantly by crop. From 2010 to 2025, corn and soybean yields have seen increases of 32% and 45%, respectively, whereas cotton and rice have seen only an increase of 18% and 8%, respectively (USDA NASS 2025). Meanwhile, cotton costs have increased by 102%, and rice costs have increased 93% over this same time period. Costs per acre for corn have risen 92%, and for soybeans they have increased by 90% (Gregory et al. 2025).



To further examine this, we index prices and yields to 2010 and then look at the difference between the two indexes (Figure 1). A positive value means that cost increases have outpaced yield increases. A negative number means that yield increases have exceeded cost increases. The first thing to note is that cotton and rice costs have outpaced yield at a higher rate than what we have seen in corn and soybeans for most of the time period between 2010 and 2025. Corn yield gains were able to keep pace with input cost increases up until 2022, when costs began to increase significantly. The difference in cost and yield indexes for corn actually exceeded that of cotton and rice in 2023, driven mostly by higher fertilizer prices. Soybean yield increases actually exceeded input cost increases from 2010 to 2014. In 2024 and 2025, the indexes for corn and soybeans came down more than cotton and rice, due to larger decreases in costs for corn and soybeans compared to cotton and rice.



The data shows that there haven’t been sufficient yield increases in cotton and rice to keep up with higher input costs. This makes it harder for these crops to stay profitable from yield gains alone, and producers have to hope for higher prices to offset higher costs. The generally higher costs involved in these crops compared to corn and soybeans could explain some of the large decreases in acres of cotton and rice grown over this time period. However, since 2021, input price increases have far exceeded yield gains for all crops. This is true not just for Mississippi but across the southern region and the U.S. as a whole. Supply chain issues, trade disputes, and inflation have all contributed to these cost increases. Yields on the other hand, especially for cotton and rice, have been relatively flat these last few years. If these trends continue, producers will need to continue to find ways other than higher yields to offset these higher costs, whether this is by increased input use efficiency or risk management tools.



References



USDA NASS. (2026). <a href="https://quickstats.nass.usda.gov/">https://quickstats.nass.usda.gov/</a>



Gregory. E., Mills, B.E., &amp; Maples, W. (2025). Delta Planning Budgets. Mississippi State University Extension. <a href="https://www.agecon.msstate.edu/whatwedo/budgets.php">https://www.agecon.msstate.edu/whatwedo/budgets.php</a> &nbsp;



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Recommended citation format: Mills, Brian E. &#8220;<a href="https://southernagtoday.org/2026/08/18/cost-increases-have-outpaced-yield-gains/">Cost Increases Have Outpaced Yield Gains.</a>&#8221; Southern Ag Today 6(35.1). August 24, 2026. <a href="https://southernagtoday.org/2026/08/18/cost-increases-have-outpaced-yield-gains/">Permalink</a>

Cost Increases Have Outpaced Yield Gains

In mid-July, the United States Fish and Wildlife Service (“FWS”) together with the National Marine Fisheries Service (“NMFS”) (collectively, “the Services”) <a href="https://www.federalregister.gov/documents/2026/07/14/2026-14195/rescinding-the-definition-of-harm-under-the-endangered-species-act">finalized a rule</a> to rescind the regulatory definition of “harm” under the Endangered Species Act (“ESA”). The term is part of the ESA’s overall prohibition on “take” of protected wildlife and has been defined through regulation since 1975. In rescinding the rule, the Services allege that the definition of “harm” does not match the best possible interpretation of the ESA. Since the recission was finalized, at least four federal lawsuits have been filed by environmental groups and Native American Tribes, claiming that rescinding the definition violates federal law.



Under the ESA it is illegal to “take” any wildlife species that have been listed as either threatened or endangered. The term “take” is broadly defined under the ESA as “to harass, harm, pursue, hunt, shoot, wound, trap, capture, or collect, or to attempt to engage in any such conduct.” FWS first adopted a regulatory definition of “harm” for the purposes of “take” in 1975. That definition was slightly modified in 1981 and until the recission rule, “harm” was defined as “an act which actually kills or injures wildlife [including] significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.” NMFS adopted the same definition in 1999.



By defining “harm” to include “significant habitat modification or degradation” that “actually kills or injures wildlife,” the Services interpreted the prohibition on “take” of protected species to include destruction of species habitat even if habitat destruction did not involve directly killing or injuring a member of the species. For example, under the 1981 definition of “harm,” it would be a violation of the ESA to cut down a stand of trees that provide habitat to an endangered species of bird even if none were directly killed when the trees were cut down.



The Supreme Court upheld this definition of “harm” in its 1995 decision, Babbitt v. Sweet Home Chapter of Communities for A Great Oregon,where the Court held 6-3 that the definition was “reasonable” in light of the “broad purpose” of the ESA to protect endangered and threatened wildlife. Because the Court concluded that the definition was reasonable, it relied on the doctrine of Chevron deference to decide the case. In a dissenting opinion, Justice Scalia disagreed with the majority’s conclusion and instead would have limited it to acts that directly kill or injure protected wildlife. According to Justice Scalia, limiting “harm” to direct acts against wildlife makes sense when looking at the statutory definition of “take” which includes other direct actions like pursue, hunt, shoot, and wound.



In their final rule to rescind the “harm” definition, the Services explained that the action was prompted by the Supreme Court’s 2024 ruling in Loper Bright Enters. v. Raimondo,where the Court overturned Chevron deference. When the Court issued Loper Bright, it recognized that many of its previous holdings were based on Chevron deference and concluded that those cases were still good law and should not be considered invalid or overturned because of the Court’s Loper Bright decision.



Although the Services acknowledged that pasts cases which relied on Chevron deference were still valid in their final recission rule, they argued that, as part of the Executive Branch, they have a constitutional responsibility to “take care that the laws be faithfully executed.” Because the Services believe that the single, best interpretation of the ESA’s “take” prohibition was given by Justice Scalia in his Babbit dissent, they moved to rescind the “harm” definition and limit “take” to actions that directly kill or injure protected species.



The recission rule is set to go into effect on September 14, 2026, and already at least four lawsuits have been filed to challenge it. All four claim that the recission violates the Administrative Procedure Act (“APA”) and ask that the rule be overturned. The plaintiffs in each lawsuit allege that the recission rule violates the APA because the Services did not provide a “reasonable rationale” for rescinding the “harm” definition.



The plaintiffs claim that the recission rule is “arbitrary and capricious” because the only explanation the Services provided to support rescinding the “harm” definition is an improper interpretation of Loper Bright. They argue that under the Loper Bright standard, it is courts, not agencies, that determine the single, best interpretation of the law. According to the plaintiffs, the recission rule cannot be the best interpretation of “harm” because it is one that the Supreme Court has rejected. They claim that the Services failed to explain how or why Justice Scalia’s dissent in Babbit, rather than the majority opinion, articulates the “single, best” meaning of “take” under the ESA.



Rescinding the regulatory definition of “harm” is likely to have broad impacts for a variety of reasons. For property owners and agricultural producers, the recission could result in reduced regulation at least as long as the rule remains in place. However, perhaps an unintended outcome of the recission rule is the opportunity to get a better understanding of how courts will treat Loper Bright going forward. The standard established by the Supreme Court in Loper Bright is still relatively new, particularly when compared with Chevron deference which was in place for decades before being overturned. For an industry as heavily regulated as agriculture, how courts treat agency rules interpreting statutory language is an important part of understanding how the law impacts day-to-day operations.



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Recommended citation format: Rollins, Brigit. &#8220;<a href="https://southernagtoday.org/2026/08/18/services-rescind-esa-definition-of-harm-face-lawsuits/">Services Rescind ESA Definition of “Harm,” Face Lawsuits.</a>&#8221; Southern Ag Today 6(34.5). August 21, 2026. <a href="https://southernagtoday.org/2026/08/18/services-rescind-esa-definition-of-harm-face-lawsuits/">Permalink</a>

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