Biodiversity and the Law

Biodiversity and the Law

by Leesteffy Jenkins

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<p>Biodiversity and the Law is a timely and provocative volume that combines historical perspective and cutting-edge legal analysis in an authoritative and broad discussion of biodiversity and the law. Leading legal and policy experts consider a variety of options for the worldwide protection of biodiversity and present a succinct but comprehensive overview of the


<p>Biodiversity and the Law is a timely and provocative volume that combines historical perspective and cutting-edge legal analysis in an authoritative and broad discussion of biodiversity and the law. Leading legal and policy experts consider a variety of options for the worldwide protection of biodiversity and present a succinct but comprehensive overview of the legal mechanisms available. They examine how conservation advocates can better utilize existing law, and consider what new law is needed.<p>Among the topics considered are: <ul> <li>scientific and policy foundations of biodiveristy protection <li>domestic efforts to establish an effective endangered species protection regime <li>international biodiversity protection <li>biodiversity as a genuinely public entity <li>the future of biodiversity law </ul> Contributors include Mollie Beattie, Don Waller, Jason Patlis, Lindell Marsh, Todd Olson, Peter Jenkins, Suzanne Iudicello, John Pendergrass, Dinah Bear, Walter Kuhlmann, Rodger Schlickeisen, David Downes, and others.

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Biodiversity and the Law

By William J. Snape III.


Copyright © 1996 Defenders of Wildlife
All rights reserved.
ISBN: 978-1-61091-254-9



Mollie Beattie

One of my first actions as director of the U.S. Fish and Wildlife Service was to announce that the service would shift to an ecosystem approach to managing our fish and wildlife resources. This announcement caused a stir both inside and outside the agency.

The idea of an ecosystem approach is not new. The service has been moving toward implementing this approach for some time. My announcement was more a confirmation of what has already begun rather than the launching something new—an evolution rather than a revolution.

Aldo Leopold first conceived the concept of an ecosystem approach a half century ago. In his earlier writings, recently published in a book called The River of the Mother of God, the evolution of Leopold's thinking can be traced from being fully in favor of predator control and vermin elimination (as well as maximum production of those species that humans find entertaining) to recognition that we cannot manage for any one piece of the system and expect to save the rest. His final work, A Sand County Almanac, embodies a resounding testament to an ecosystem approach. Wildlife managers are finally catching up to him fifty years later.


The concept of an ecosystem approach is easier for people to understand than the concept of biodiversity. Additionally, the ecosystem approach is taking on a broader meaning in the federal government. Here it is frequently used to refer to interagency cooperation, expanding the definition to include the administrative end of conservation programs. Nevertheless, the underlying premise remains unchanged—that there are many uses people make of ecosystems and if we do not take an ecosystem approach to conserving biodiversity, none of them will be long lived.

We are making the ecosystem approach an important element in the management of the National Wildlife Refuge System. This does not mean that traditional uses such as hunting, fishing, and bird watching will be excluded. Rather, it means that we want to use the refuges as anchor points for maintaining biodiversity and as keystones to demonstrate the success of the ecosystem approach. Because ecosystems rarely stop at the border of refuges, we will seek to work in partnership with all those outside refuges, such as neighboring landowners.

People who oppose the ecosystem approach interpret it to mean the Fish and Wildlife Service is going to encroach on their right to manage their lands and programs. Nothing could be further from the truth. In fact, the ecosystem approach entails exactly the opposite. The service recognizes that its statutory mandates are rather narrow: only a few categories of species are its direct responsibility. We cannot do a good job with these species unless we work with everybody who manages the habitat upon which they depend and the programs that affect them. This is why we think refuges should serve as anchors from which our biologists can involve other landowners, through voluntary, mutually beneficial partnerships, in the proper management of ecosystems.

The ecosystem approach will also help us direct our increasingly limited resources within the refuge system. It was once the norm for refuges to be far-flung pieces of land with minimal surrounding development pressure. This is no longer the case. And as development pressures have increased around refuges, management costs have gone through the ceiling. The ecosystem approach will help us to think about which ecosystems are the most threatened and which are the most recoverable. In short, it will help focus our resources to get the most bang for our buck.

Among the national resource management agencies, only the Forest Service and the Fish and Wildlife Service have the authority to work on private land. In fact, our private lands program is becoming more and more central to our efforts. Through this program we talk to private landowners and implement wildlife improvement efforts on their land in exchange for long-term agreements that the landowners will protect these improvements. To date, our private lands program has restored more than 240,000 acres of valuable wildlife habitat.

We recognize that no mandate from Washington is going to solve our nation's ecological problems. Progress will need to be forged acre by acre, wetland by wetland, in communities across this country. This effort must involve the willing partnership of the people who own and live on the land.


The Fish and Wildlife Service's administration of the Endangered Species Act (ESA) will be significantly affected by this new emphasis on an ecosystem approach to fish and wildlife conservation. Up to now, the ESA has largely been administered on a single-species basis. It has been driven by petitions to list individual species, and it has become for many a tool of choice in dictating the future of land use. In other words, if you can find a listed species, or species that may need listing, you can stop development. In many regards, this has given a good law a bad name. Regardless of how the ESA has been used in the past, we intend to use it to support and conserve biodiversity and ecosystems.

One of the complaints heard most frequently about the ESA is that it has a huge negative impact on the economy. But in fact, its historical impact has been extremely minor. There is a lot of smoke and not much fire. Under the ESA, for example, all federal agencies are required to consult with the Fish and Wildlife Service or the National Marine Fisheries Service before conducting an activity, issuing a permit, or funding an activity on federal land that might affect a threatened or endangered species. By the outcry, you would think these consultations have a major economic impact. In fact, the opposite is true. Of the 118,000 informal and formal consultations required of other federal agencies under the ESA from 1979 to 1991, only 33 development projects were halted. That is one project halted for every 3,578 consultations. The majority of the rest went forward with just minor modifications or none at all.

The ESA has built-in flexibility to accommodate both species protection and sustainable economic development. We find that it is precisely in those places where economic activity is not sustainable, whether because of overharvesting of timber or overdrawing of an aquifer, that ecosystems are in trouble. Coincidentally, a growing number of threatened and endangered species, as well as candidate species, are found in these places. The presence of these threatened and endangered species is an early warning sign of a crisis. We must address problems in these ecosystems before they become intractable and harm not only wildlife, but also humans.

The Fish and Wildlife Service's shift to an ecosystem approach will not eliminate support for some of the successful single-species programs that are moving these species toward delisting. It is important to show that the ESA is not a one-way street. Furthermore, where you have declines of large keystone species—the kind that the public pays attention to—you usually have an ecosystem in trouble as well. The grizzly bear and Mexican wolf are good examples, and their habitats are places we would want to focus our energy anyway.

Although the service has at times been criticized for focusing too much on some of these "charismatic" species, the biggest challenge we face involves obscure, noncharismatic species, such as mussels, snails, and lichen. It is often hard to explain to people why it is desirable, much less necessary, to save these species. After all, people might ask, what difference does it make whether we have any freshwater mussels in our river bottoms?

Of course, these species are merely indicators of bigger ecological problems that people should care about. There is a snail in Idaho that is one of my favorite parables on this point. This snail is found in an isolated series of hot springs in a single valley. It is being pushed to extinction by overpumping of the aquifer; the springs are disappearing as the groundwater levels are lowering. Opponents have done a thorough job of painting the issue in terms of "jobs versus snails." But the real issue is whether we are going to continue this unsustainable use of an aquifer until ultimately no water remains for either humans or snails.

There are numerous cases like this in which a little slimy species with an inelegant name serves as nature's smoke alarm. Disconnecting the alarm does not make the fire go out. Ignoring these species, as some opponents of the ESA would have us do, will not eliminate the ecological crisis.

Again, the Fish and Wildlife Service is going to focus the greatest attention on areas where there are multiple endangered and threatened species or multiple candidate species. We provided Interior Secretary Babbitt with a map of the United States showing the concentrations of candidate species. He is interested in getting out in front of the ESA and avoiding what he terms "train wrecks." If we start to see a buildup of candidate species somewhere, he wants the service to get ahead of the curve and avoid having to invoke the ESA at all. Prelisting conservation will be crucial in achieving this objective.

We are often driven so hard by the listing petitions of the ESA that putting together the staffing and funding resources to get out in front of the curve is one of our ever-growing challenges. Again, we need to combine our resources with our many partners to be effective.

In any event, in 25 years the Endangered Species Act has helped prevent extinction of over 200 species. Most important, the Act has given warning of ecological crisis while time still remained to take action. The increasing frequency with which these warnings are sounding today does not mean that something is wrong with the alarm. It signals unsustainable use of natural resources—over-harvesting timber, pollution, destruction of wetlands and other habitats vital to both wildlife and and human health.

Until we change our ways, such problems will exist whether or not we have an Endangered Species Act. Congress may change the act, but it cannot repeal the laws of nature.


The Fish and Wildlife Service is still in the early stages of implementing the ecosystem approach. We recently distributed a final draft of our concept to our employees and our partners in the states and elsewhere. This document includes the most current map of the United States showing how we delineate ecosystems. This will allow us, in consultation with our partners, to organize our regulatory activities as well as our programs along boundaries that make sense from a biological perspective as opposed to a political, jurisdictional perspective.

We anticipate that the National Biological Service (NBS) will assist us in improving the inventory and monitoring of biotic resources. Additionally, we expect the NBS to carry on the work previously conducted by the Fish and Wildlife Service's research arm—those dirt-under-the-fingernails kinds of things.

The initial inventory and monitoring priority will be to assess what we know and to find out what additional data are needed to round out this knowledge. This will entail identifying data banks currently available around the United States and developing mechanisms to integrate them in a useful manner.

In the end, conservation in the future will weave together a broad tapestry of conservation techniques applied across the landscape at all levels, public and private. Federal acquisition, land trusts, and state, local, and city efforts will need to be interwoven into a new kind of wildlife ethic. We need to see progress toward preemptive conservation in places where no crisis is yet evident.

The U.S. Fish and Wildlife Service is preparing itself for this new era. The twenty-first century is going to demand that the service be flexible, proactive, and able to work with diverse partners to respond to increasingly complex conservation challenges. We are convinced that the ecosystem approach is the best way to meet these challenges.



Donald M. Waller

When I ran into a friend a year ago he asked what I was up to. I answered that I was writing a book on biodiversity and forest management. He responded by asking, "And what will you do after this environmental fad passes?"

Was the Earth Summit in Rio a flash in the pan? Will new graduate programs in conservation biology, such as the one at the University of Wisconsin, wither from lack of interest? Are journals like Conservation Biology destined to decline as rapidly as they have grown in the last few years? Here I evaluate the lasting value of biodiversity as a basis and criterion for conservation. How well does biodiversity serve as an umbrella, or overall goal, for conservation efforts? How suitable and effective is biodiversity as a standard for advancing conservation? Why haven't earlier laws, such as the Endangered Species Act, sufficed to protect biodiversity? As a scientist relatively familiar with the law and the courts, I also want to ask: what dangers are associated with embracing biodiversity as a criterion for conservation? Biodiversity has and will be misinterpreted, sometimes unknowingly or accidentally, out of ignorance, but often willfully. Even when diversity is not willfully misinterpreted, the variety of meanings ascribed to it make the use of biodiversity in policy difficult and challenging. This means we must be careful in interpreting and applying this concept and should accept the need for more scientific, as well as legal and policy, expertise.

Today, federal agencies are publicly embracing a group of concepts termed "ecosystem management." The pitfalls outlined here suggest that we will need to be cautious in inserting our concerns for biodiversity into ecosystem management and must be vigilant in monitoring how our government applies these concepts. I therefore conclude this chapter with a challenge to environmentalists, scientists, and agency personnel to work together to accomplish the important goal of sustaining our biodiversity into the twenty-first century.


Our main tools for conserving diversity historically have been fish and game laws such as the Lacey Act of 1900 and the Migratory Bird Hunting Stamp Act of 1934. These laws were created to counter the specific threats posed by overharvesting certain fish, mammal, and bird species. At the time they were enacted, it was obvious to all that many of these species were declining in direct response to human depredation. Such laws effectively curtailed the excessive hunting and fishing that were decimating wildlife populations and, moreover, effectively reversed declines in many of these species (often in the nick of time). Wildlife populations have rebounded in many states, species have been successfully reintroduced into areas where they were extirpated, and income from the sale of ammunition, hunting and fishing licenses, and similar programs fund conservation programs in all states.

This is the success story that state conservation programs justifiably feel proud of. Yet duck populations remain perilously low, anadromous fish stocks have crashed in the Northwest, wolves have yet to reoccupy more than a fraction of their previous range, and neotropical migratory songbirds continue steep declines across eastern North America. Why, if we have protected these species from overharvesting, do they continue to decline? Why are we adding species to the threatened and endangered lists so much faster than species are recovering?

The answer, in most cases, is that habitats continue to be lost, fragmented, and otherwise degraded. While the historic threats to biodiversity revolved around the conspicuous and direct threats of overharvesting, today we are confronted with different kinds of environmental change. We see pervasive changes in our landscapes that collectively alter the ecological context under which our species evolved. These changes are usually incremental, masking their effect, yet the changes they bring are profound and insidious. Most species in decline now are suffering the indirect and often subtle effects of changes in ecological processes, such as patterns of disturbance. These changes are difficult to reverse, and often they pose unexpected threats to inconspicuous species. They also have tended to favor a different class of species, the weedy invaders and exotics, that themselves further threaten and displace native species. Because species losses generally lag behind these environmental changes, losses already imminent will take many years to play themselves out, further masking their cause and full scope. Although subtle and slow to our eyes, these changes ultimately pose greater threats to far more species than the direct threats of yesterday.


Excerpted from Biodiversity and the Law by William J. Snape III.. Copyright © 1996 Defenders of Wildlife. Excerpted by permission of ISLAND PRESS.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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