Going the way of the dodo: de-extinction, dualisms, and reframing conservation.

AuthorCamacho, Alejandro E.
PositionAbstract through II. Dualism in Endangered Species Laws, p. 849-876

ABSTRACT

De-extinction, a suite of selective breeding or biotechnological processes for reviving and releasing into the environment members or facsimiles of an extinct species, has been the subject of a recent surge of analysis in popular, scientific, and legal literature. Yet de-extinction raises more fundamental questions about the relationship between humans and nature and about the more and less useful ways that the law serves to navigate that relationship. Unfortunately, the endangered species, invasive species, and public land management laws likely to govern the revival and introduction of de-extinct species largely remain premised on an understanding of nature as static and easily divisible from human activity. In these contexts, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.

Through the example of de-extinction, this article illustrates the limitations of the law's reliance on these crude dualisms. Currently, de-extinct species will often be obstructed as non-native and introduced (even if they might promote ecological function in a particular area) and may be allowed or promoted in locations they used to exist (even if likely to cause ecological damage). De-extinction illustrates how policymakers need to reformulate natural resources law to be less dependent on these strict dualities. Instead, the article argues in favor of cautious risk assessment that acknowledges the dynamism of nature and humanity's indivisibility from it.

Table of Contents Introduction I. The Ecological Risks and Benefits of De-Extinction A. Potential Ecological Benefits of De-Extinction B. Potential Conservation Risks of De-Extinction II. Dualism in Endangered Species Laws A. "Species " and a Focus on Natural B. "Endangered" and a Focus on Native Range C. Captive-Breeding: Preferencing Exotic D. Introductions: Preferencing "Natural" and "Native" III. Dualism in Other Wildlife and Public Land Laws A. De-Extinction and the Problem of "Native" 1. Promoting "Native" 2. De-Extinction with "Native " as Pre-existing 3. De-Extinction with "Native" as Natural B. De-Extinct Species as "Exotic" and "Invasive" 1. Suppressing "Exotic" and "Invasive" 2. De-Extinction and Defining "Invasive" C. Problems with the Native/Exotic and Artifactual/Wild Dualities IV. Rejecting Strict Dualities: A Risk Assessment Approach A. Native/Exotic and Nature/Human as False Dichotomies B. Risk-Based Adaptive Ecosystem Management 1. Risk Assessment and Adaptive Management 2. Potential Default Rebuttable Presumptions Conclusion INTRODUCTION

The Dodo (Raphus cucullatus), that object of the leading idiom about permanent obsolescence, (1) might not be gone. (2) In (1598), at the behest of Dutch Vice-Admiral Wybrandt Warwijck, who had rediscovered the island of Mauritius and claimed it for the Netherlands, (3) Heyndrick Dircksz Jolinck led an expedition to reconnoiter the island during which he encountered what became known as the Dodo. (4) Flightless and fearless, the Dodo was driven to extinction by about (1698), likely a victim of the combined onslaught of human hunting, habitat loss, and invasive rats, pigs, goats, dogs, and cats. (5) There is no reason to assume that the Dodo-- now known to have been, in evolutionary terms, essentially a giant, flightless pigeon (6)--any less well adapted to the ecosystems it inhabited than any other species indigenous to Mauritius. (7) Nevertheless, it has become a potent symbol of silliness and futility. (8)

Yet "going the way of the Dodo" may soon take on new meaning. Though until now a symbol of permanent extermination, emerging technologies of de-extinction may make the Dodo the ultimate example of the inevitably dynamic character of ecological phenomena and the inextricable relationship of humans with nature. Unfortunately, the various conservation laws likely to govern the revival and introduction of the Dodo largely remain premised on outdated assumptions of nature as static and firmly divisible from human activity.

While established legal dualisms such as native versus alien or natural versus introduced may offer a clear organizing principle, strict adherence may ignore nuances and complexities. (9) More crucially, legal dualisms based on erroneous premises--such as a nature that is (and should be) unchanging and divisible from humanity--likely will result in distorted or harmful policy outcomes. (10) Just as aphorists may be forced to reconsider a common adage, and scientists obliged to reevaluate the permanency of extinction, de-extinction illustrates how policymakers need to reformulate legal frameworks governing natural resources to be less dependent on simplistic dualisms in favor of cautious risk assessment that recognizes the dynamism of nature and humanity's indivisibility from it.

De-extinction is the process of reviving members or facsimiles of an extinct species through a variety of selective breeding or biotechnological methods, as well as the release of such organisms into existing ecological systems." Functional de-extinction would not involve genetic engineering but rather selectively breeding organisms exhibiting the phenotypic or functional characteristics of extinct target organisms with the intent of aggregating those desired characteristics into individual organisms over several generations. (12) More controversially, de-extinction via genetic engineering (13) would include a suite of technologies in which the DNA segments from extinct and extant species are combined to make a new "recombinant" DNA. (14) For example, efforts to construct a viable Dodo might rely on inserting preserved fragments of Dodo genomic DNA into its closest living relative, an existing, complete Nicobar pigeon (Caloenas nicobarica) genome. (15) The result would be a genomic hybrid Dodo/Nicobar pigeon. Through multiple generations of such a process, DNA from extinct target species would make up increasing proportions of genomes of de-extinct individuals--eventually resulting in the genomes of de-extinct species being derived entirely, and with high fidelity, from the genomes of their extinct relatives.

The possibility of "bringing back" extinct species like the Dodo has been the subject of a recent outpouring of discussion in popular (16) and scientific (17) literature, and a number of active initatives are under way to revive facsimiles of the extinct passenger pigeon, (18) bucardo, (19) gastric brooding frog, (20) woolly mammoth, (21) and auroch. (22) Even legal scholarship recently has touched on the applicability of certain laws to the revival of a de-extinct species. (23) Yet de-extinction raises more fundamental questions about the relationship between humans and nature, (24) and the more and less useful ways that the law serves to navigate that relationship.

Unfortunately, resource conservation laws are replete with dualisms as awkward and unsustainable as the stereotypical Dodo. (25) How the law may relate to de-extinction brings the limitations of these dichotomies into high relief. These simplistic and problematic dualisms include divisions between those phenomena deemed natural and those considered artificial or unnatural, as well as between the native and the exotic. In a variety of different regulatory programs, the law habitually privileges and even actively promotes what it identifies as natural and native over the unnatural and exotic.

De-extinction illustrates the limitations of the law's reliance on these simplistic dichotomies. Existing endangered species, invasive species, and public land laws and policies as applied to the revival of extinct species demonstrate the problems with a primarily dualistic approach to managing dynamic natural systems. Endangered species laws focus on protecting de-extinct species primarily where they used to be, not where they may promote ecological function now and in the future; other wildlife laws might perversely allow introduction of a de-extinct species where it is incompatible with an area's current conditions but bar it in circumstances where it could provide substantial ecological benefits. The effectiveness and coherence of laws in each of these doctrinal areas have been undermined by the privileges (and even stimuli) accorded to just one side of a dualistic pair.

Accordingly, this Article offers an alternative approach that provides for a more appropriate assessment and adaptive management of the benefits and risks of de-extinction and other human manipulations of, or intervention in, ecology. I do not suggest that differently situated species or organisms should be treated equivalently. To the contrary, there may be circumstances in which it is valuable to privilege certain types of species over others. In particular, there may be important reasons to build into the legal framework a rebuttable presumption that a species or organism that already exists in a particular ecological niche is valuable and less risky. In...

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