Statutory reform to protect migrations as phenomena of abundance.

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Statutory reform to protect migrations as phenomena of abundance.

I. Introduction II. The Need for Law Reform to Protect Migrations as Phenomena of Abundance A. Three Case Studies of Migration 1. Red Knot 2. Pronghom Antelope 3. Monarch Butterfly B. Why Is a Comprehensive Legal Approach Needed? C. Shortcomings of Existing Federal Laws for Protecting Migrations D. What Would a New Migration Protection Law Offer? E. What Migrations Would Benefit Least and Most from Law Reform III. Description of a Proposed Migration Protection Act A. Findings and Purposes B. Applicability C. Legal Approaches for Listed Migrations D. First Steps for Non-Listed Migrations IV. Conclusion I. INTRODUCTION

It's a wonderful thing that the American bison (Bison bison) managed, narrowly, to avoid extinction. We can see bison at Yellowstone, and in zoos, and that is good. We don't even have to go very far if we want to buy and eat bison meat. But the American bison, as it historically existed in the United States, is in fact gone. It no longer gathers in herds of thousands or moves across hundreds of miles of unbroken prairie, and it no longer shapes the ecological system that sustained it. (1) We have preserved the species, but we can only respond with wonder--we are indeed willing to do no more than wonder--at what the migration must have been.

Even so, there are other migrations that have thus far survived all of the development, borders, barriers, harvest, and habitat alterations we have thrown in then way. It may be that we are willing to make the necessary commitments so that those migrations might make our children, and ourselves, marvel. It may be that we are willing to do more than merely see that the species survives. It is worth hoping that we are willing to conserve the extraordinary natural spectacle, the ecological force, and the natural wonder of some species in full natural context: we may be willing to conserve migrations themselves, and in this article, we hope to enrich the discussion that has begun on that proposition.

We define migration simply as the cyclical, predictable, round-trip movement of the entire population, or any geographically separate part of the population of any species or subspecies of animals. (2) Ranging, dispersal, and certainly foraging are not "migration" for purposes of our discussion. (3) This broad and simplistic definition of migration suits our purpose in this article, which is to focus on the conservation of behaviors and processes related to the migration cycle. Such behaviors and processes may be part of the movement phase--active movement as well as stopover activities--or the stationary phase--e.g., breeding, nesting, and overwintering--of the migration cycle. In fact, we will frequently use the terms "migration" and "migration phenomena" as shorthand for all of the migration-related behaviors and processes exhibited by a particular population.

Our conceptual perspective in this article is that migration-related behaviors and processes are themselves phenomena worthy of protection, as a category of biodiversity. Lincoln Brower has employed the concept of an "endangered phenomenon" as an alternative to the predominant conservation paradigm, which focuses on diminishing species diversity, minimum viable populations, and the demise of habitats and populations that leads species to extinction. (4) Brower defined an endangered phenomenon as "a spectacular aspect of the life history of an animal or plant species involving large numbers of individuals that are threatened with impoverishment or demise; the species per se need not be in peril; rather, the phenomenon it exhibits is at stake," and he referred to the migration of the monarch butterfly as an example of such an endangered phenomenon. (5) Similarly, the monarch's winter roosts in Mexico and California were designated as threatened phenomena by the International Union for Conservation of Nature (IUCN) in 1983, reflecting the recognition that a migratory phenomenon can be imperiled even though the species as a whole is not in danger of extinction. (6) Professor David Wilcove's writings on migrations as "phenomena of abundance," (7) as well as Professors Fischman and Hyman's article on the legal components of migration protection, also rely on this theme of biological phenomena worthy of protection. (8) Most recently, David Quammen wrote about animal migration as awe inspiring and "a phenomenon far grander and more patterned than animal movement." (9) This perspective of migration as a "phenomenon" shines a spotlight on notable behaviors and processes, such as mass movements of animals, movements through ancient pathways, and mass aggregations at wintering, breeding, and stopover sites. Protecting such life-history phenomena adds to the biodiversity conservation agenda. (10)

Migration phenomena can provide ecological, psychological (e.g., aesthetic), cultural, and economic benefits. (11) Ecological benefits include seed dispersal, nutrient transport, and pollination. (12) In some insta...

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