Statutory reform to protect migrations as phenomena of abundance.

• Author: Hyman, Jeffrey B.

1. 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 instances, as was true in the case of the bison, migration shapes the landscape and thus, in some respects, the ecology of the areas in which it occurs. Additionally, the opportunity to observe large numbers of animals congregating or moving together has important cultural and psychological value to humans; images of salmon leaping over waterfalls on their way upriver, enormous "Vs" of Sandhill cranes (Grus canadensis) flying south in the fall, and whale pods plying coastal waters, are iconic. Imagine seeing, as some did as late as 1871 in southern Kansas, a herd of bison the main body of which was estimated to be fifty miles deep and twenty-five miles wide. (13) Some migrations in our country are part of our heritage not unlike properties that are protected by the National Historic Preservation Act. (14) Migrations and migratory species also provide economic benefits including harvest and sales of harvesting equipment, nature oriented tourism and recreation, and travel to the locations in which such activities can be pursued. (15) With the loss of migration phenomena comes the loss of values and benefits associated with those phenomena, even if the species itself is not in peril.

   The migration-as-phenomenon perspective does not supplant the traditional paradigm of species-based conservation, and the two perspectives are complementary. Ensuring the existence of a species is essential for protecting the migration-related behaviors and processes that constitute the phenomena proclaimed by Brower, Wilcove, and Quammen as worthy of protection. On the flip side, for obligate migrants, ensuring the existence of the migration is essential for protecting the species. (16) In particular, protecting migrations while the species' populations are still relatively abundant, and the ecological, psychological, cultural, and economic benefits of migration are still forthcoming, is a proactive approach that can keep species from reaching the dire straits that requires emergency room intervention.

   Furthermore, conserving any phase of a species's migration cycle as a phenomenon requires protecting the animals during all phases of the cycle--at the breeding grounds, at locations inhabited and used during other stationary phases, during movement, and at stopovers. For example, identifying and protecting the breeding and wintering grounds of migratory buds is clearly important to ensuring population persistence. (17) Yet migratory birds spend approximately 25%-33% of their annual cycle in transit between breeding and wintering areas, and survival challenges encountered on these journeys, including mortality at stopover sites, may be responsible for a majority of annual adult mortality in land birds. (18) In short, all phases of the migration cycle must be maintained to ensure that any one phase of the cycle persists.

   Yet the traditional species-based perspective of conservation, with its focus on declines in abundance, rarity, reactive conservation actions, and minimum viable populations, is limited and will usually produce different priorities for conservation and scientific research than the migration-as-phenomenon perspective. (19) The species-based perspective focuses our attention first and foremost on the persistence of the species. The United States appears to have accepted the notion that the loss of species as compositional elements of biodiversity is a serious problem. (20) The concept of extinction is readily grasped. Certainly, as mentioned above, for those populations that must migrate to survive, conserving migratory behavior and avoiding population extinction are two sides of the same coin. A minimalist approach would seek merely to maintain the smallest number of individuals necessary to accomplish the migratory behavior and avoid extinction--the minimum viable migration or population. But the only benefits of migration maintained by this strategy, other than the survival of the species, are whatever benefits accrue from that minimum number of animals. The benefits of minimal populations may not include many of the ecological, psychological, cultural, and economic benefits associated with migration phenomena, which typically require higher abundances than minimum viable populations. This is why we speak of migration as a "phenomenon of abundance." (21) Thus, restoring and maintaining relatively high abundances--e.g., historic levels or carrying capacity--are conservation and research priorities for the migration-as-phenomenon perspective, but are not necessarily priorities for the species-based conservation perspective.

   This Article presents an idea for a new federal law that reflects the perspective that conservation of migratory behaviors and processes as phenomena of value in and of themselves, and not only of value for species persistence, can provide unique and important benefits. Such a perspective would fill a gap in the existing scheme of conservation laws. Existing conservation policy generally serves the...