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

Author:Camacho, Alejandro E.
Position:III. Dualism in Other Wildlife and Public Land Laws through Conclusion, with footnotes, p. 876-906
 
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  1. DUALISM IN OTHER WILDLIFE AND PUBLIC LAND LAWS

    International, national, and state laws managing wildlife and public lands vary considerably in their particular language and scope. In the United States, no federal law has ever comprehensively managed the movement of biota. However, an array of legal provisions and definitions directly affect species migration and introduction, and a variety of governmental bodies have addressed problems that arise from non-indigenous species. (131) Most directly, there are many international, federal, and state invasive species laws that focus on prohibiting, restricting, and/or managing the movement of plants and animals into, out of, or within their jurisdictional borders. These laws vary in scope but often institute a permitting process for importation (132) and/or release (133) of certain species, with some regimes developing lists of prohibited species (134) while others elect to generate lists of species not requiring permits. (135)

    As approximately twenty-eight percent of all the land in the United States is federally owned and managed, (136) federal and other public land management laws also serve to significantly affect wildlife movement. Each of the major federal and state lands is subject to a different statutory regime, with each administering agency promulgating regulations and guidance further interpreting its authority. At the federal level, these include: (1) the 193 million acres of National Forests managed by the United States Forest Service (USFS) pursuant to the National Forest Management Act; (137) (2) the nearly 248 million acres of Bureau of Land Management (BLM) land managed under the Federal Land Policy and Management Act of 1976; (138) (3) the national park system managed by the National Park Service (NPS), which includes over fifty-two million acres of designated National Parks (139) managed under the National Park Service Organic Act; (140) (4) approximately 89 million acres of terrestrial Federal Wildlife Refuges administered by the FWS pursuant to the National Wildlife Refuge System Improvement Act; (141) and (5) over nineteen million acres of land managed by the Department of Defense (DoD). (142) Moreover, 109 million acres of the above-listed federal lands are specially designated by Congress to be federal wilderness (143) and subject to an additional overlay of regulation pursuant to the Wilderness Act of 1964. (144)

    These invasive species and public land management laws have much in common in their suppositions and goals for managing ecological systems. As with endangered species laws, invasive species and public land laws treat species' movement--in particular, any human-aided movement--with skepticism, to be resisted. In contrast, previously present biota and ecological inertia are treated as almost undeniable virtues.

    Many of these legal provisions are premised on a static, preservationist model of ecology that seeks to preserve species only where they exist or existed. Generally, the predominant motivation of this strain of wildlife law is to protect or promote native preexisting species, combined with seeking to keep exotic species from ecologically significant areas. These provisions draw from the prominent approach in natural resources law that is largely focused on a goal of historical preservation: preserving fidelity to historical conditions and preexisting biota, thus setting up a dualism between native and alien resources. (145)

    Alternatively (or at times in addition), legal regimes seeking to manage wildlife incorporate a focus on keeping humans separate from, and largely passive in their management of, these resources. The goal of such legal provisions is to avoid or minimize human involvement in species movement or the progression of reserved ecological areas. Such reserved lands and biota are explicitly or implicitly considered valuable in large part because they are deemed wild or natural, separate from humans, and not artificial or an artifact of human activity. (146) Accordingly, the Wilderness Act of 1964 (147) and other legal provisions principally target a goal of natural or wildness preservation: preserving the ostensibly natural or wild character of reserved resources. (148)

    However, reliance on native/exotic and human/nature dichotomies for invasive species and public lands law and management conflicts with current scientific understanding, disregards the pervasive effects of humans on natural systems, and ultimately fails to foster the effective protection of ecological resources and their services. (149) Ecological systems are widely understood to be dynamic and their constituents not immutable. (150) Furthermore, humans increasingly interact with and shape virtually every ecological system throughout the globe, although the directness and extent of these effects vary. (151) Perhaps more importantly, by cordoning off areas to be reserved for certain pre-existing resources (while keeping out all others), wildlife laws may impair the ecological function of reserved areas if conditions change and make the area inhospitable for the pre-existing resources. Similarly, tying determinations of the value of a species' movement to whether human involvement exists systematically disadvantages human-aided species movement and bars introduction of ecological resources that may well improve ecosystem function.

    As further detailed in this Part, de-extinction brings these various incompatibilities into sharp focus. For legal provisions that emphasize historical preservation and the native/non-native divide, the introduction of a de-extinct species might be deemed permissible if initiated in a geographic area in which its previously extinct brethren historically existed, regardless of the harm it might create or its compatibility with the area's conditions. Such an introduction would also be barred in areas in which the species never existed, regardless of its potential ecological benefits to the area or compatibility with existing conditions.

    Similarly, as detailed in this Part, for legal provisions that seek to promote wildness preservation and the human/nature dualism, any introduced de-extinct species would be deemed exotic because humans instigated its presence. A subset of such jurisdictions would only bar an introduced de-extinct species if the jurisdiction also concluded that the species would be harmful to current resources. Yet even such a standard would prevent introductions that (though harmful to some existing resources) might still provide net ecological benefit to the area. Moreover, for the subset of wildness preservation provisions that do not require harm for non-native species to be deemed invasive, any introduction of a deextinct species would be barred, regardless of its benefits--possibly even where the de-extinct species' previously extinct brethren historically existed. As further explained below, continued reliance on these various incongruous distinctions is unlikely to promote the long-term health of ecological resources.

    1. De-Extinction and the Problem of "Native "

      1. Promoting "Native"

        In general, wildlife and public land laws manage biota very differently depending on whether an organism is native to the area in question. In most jurisdictions, native species benefit from a range of proactive measures that seek to protect, promote, and restore native ecosystems and natural processes. Many federal land agencies, for instance, identify their primary ecological goal to be sustaining and enhancing native ecological systems and species. The NPS has long made the core ecological aim in managing National Parks the protection of preexisting ecosystems and species, (152) and engages in active steps to promote or restore historical conditions. (153) The DoD provides for the promotion of "native ecosystems." (154) Similarly, the FWS focuses its efforts in managing National Wildlife Refuges on the preservation and restoration of native ecosystems and species to "historic conditions" and the promotion of "natural diversity" on their lands. (155) The USFS's new planning regulations state that a key purpose is to "both maintain the diversity of plant and animal communities and the persistence of native species in the plan area." (156) Other USFS policies provide that active management of native species in national forests is acceptable to avoid extirpation of a rare or poorly distributed species, (157) as is restoration of native species to "minimize or reverse adverse ecosystem effects caused by invasive species" (158) The conservation focus of these federal land provisions thus is not on dividing humans from nature, but on the historical preservationist goal of promoting or restoring native or preexisting conditions.

        Even those legal provisions that fortify a dualism between avowed natural conditions and human activity nevertheless tolerate some human intervention on behalf of native resources. As "perhaps the best legislative manifestation of the impulse to divide the world into the mutually exclusive spheres of nature and culture," (159) the Wilderness Act generally subjects native species on the 109 million acres of lands designated as federal wilderness (160) to minimal management activities. (161) Nonetheless, some agency regulations governing federal Wilderness areas specifically allow the restoration of native populations and natural processes to reverse human manipulation. (162) Similarly, some NPS rules stipulate that active management of native species on non-wilderness National Parks is discouraged. (163) In fact, some NPS policies conflate the human/nature and native/non-native dichotomies by purporting to promote native species through the minimization of human management. (164) Even so, the NPS affirms its focus is not only on the preservation of existing natural resources in National Parks, (165) but also the affirmative restoration of extirpated native species. (166) Even in such...

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