Governing Nature: Bambi Law in a Wall-E World

Home , Bambi, Cheyenne Bottoms, Tangled, The Wild

Boston College Law Review

Volume 62 Issue 1 Article 5

1-28-2021

Karrigan Bork University of California, Davis, [email protected]

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Recommended Citation Karrigan Bork, Governing Nature: Bambi Law in a Wall-E World, 62 B.C. L. Rev. 155 (2021), https://lawdigitalcommons.bc.edu/bclr/vol62/iss1/5

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GOVERNING NATURE: BAMBI LAW IN A WALL-E WORLD

KARRIGAN BORK

INTRODUCTION ...... 157 I. LESSONS FROM ECOSYSTEM RECONCILIATION ...... 163 A. From Restoration to Reconciliation ...... 167 B. Reconciliation’s Contribution ...... 169 C. The Environmental Law Response ...... 172 II. OUR WALL-E WORLD ...... 175 A. California’s Serpentine: Combating Nitrogen Enrichment ...... 177 1. Serpentine Management as Reconciliation ...... 179 2. Ad Hoc Management of the Bay Checkerspot Butterfly Under the Endangered Species Act ...... 180 3. Strengths and Weaknesses of the Serpentine Soil Ecosystem Management Framework ...... 185 B. Cheyenne Bottoms—Rewatering the Largest Wetland in the Interior United States ...... 188 1. Reconciling Cheyenne Bottoms...... 191 2. Management Under a Focused State Policy ...... 192 3. Strengths and Weaknesses of the Cheyenne Bottoms Management Framework ...... 193 C. The American River—Urban Salmonids on a Dammed River ...... 195 1. Reconciling the American River ...... 201 2. Management Under the Law of the River ...... 201 3. Strengths and Weaknesses of American River Management ...... 207 D. Other Federal Ecosystem Management ...... 210 1. Federal Lands ...... 210 2. Other Federal Ecosystem Management ...... 211 III. ECOSYSTEM GOVERNANCE IN A WALL-E WORLD ...... 212 A. We Must Develop Sufficient Governance for Ecosystem Reconciliation ...... 212 1. Our Current Framework Is Insufficient ...... 212 2. We Cannot Avoid Tough Value Judgments...... 215 B. Governing for Ecosystem Reconciliation ...... 219 1. Governance Must Be Local ...... 220 2. We Must Replace Our Bambi Worldview ...... 221 3. We Must Incentivize Regulatory Realignment ...... 226 4. We Must Be Humble ...... 227 CONCLUSION ...... 233

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GOVERNING NATURE: BAMBI LAW IN A WALL-E WORLD

KARRIGAN BORK*

Abstract: Humanity has disrupted many of the fundamental processes that shape nature worldwide. Virtually no places remain unchanged. Many ecosystems have moved far from their historic conditions and no longer support native species or traditional human uses. In the Anthropocene, a new geologic era dominated by the human impact on Earth, these problems will continue to get worse. In response, humans are intervening in ecosystems at a massive scale. This Article argues that, even as humanity engages in an unprecedented level of ecosystem management, existing environmental governance structures are ill suited to manage this new nature. Ecologists who focus on restoring ecosystems have begun to abandon efforts to recreate idealized historical ecosystems, recognizing that such efforts will fail. Instead, they embrace new approaches that acknowledge continuing human impacts and seek to shape impacted habitats in a way that benefits both human and other life. This Article examines the new ecological approaches, using their migration of purpose and approach to illuminate ecosystem management in the Anthropocene and the new obligations it places on environmental law. To sharpen this focus, the Article considers three case studies of managed ecosystems, detailing the extent to which humans are controlling nature. The case studies suggest that the existing literature seriously underestimates the magnitude of the questions society will soon face. The Article concludes that although we face the daunting prospect of reshaping the very fabric of nature, we lack the governance structures to decide what shape it should take. Society will need environmental law governance that can answer fundamental questions about humanity’s role in managing nature at all scales. This Article proposes several start- ing principles to encourage legal scholars to address this need.

© 2021, Karrigan Bork. All rights reserved. * Acting Professor of Law, University of California, Davis. Ph.D. in Ecology (Conservation Bi- ology), U.C. Davis; J.D., Stanford Law School; B.A. in Environmental Policy and B.S. in Biology, University of Kansas. The author would like to thank the participants in the Seventh Annual Sabin Colloquium on Innovative Environmental Law Scholarship at Columbia Law School and the Rocky Mountain Mineral Law Foundation Natural Resources Law Teachers’ Workshops for their valuable feedback. The author would also like to thank Professors Rachael Salcido, Al Lin, Keith Hirokawa, JB Ruhl, Ann Carlson and her Climate Change and energy law students for their valuable feedback, and research assistant Carson Graves for his excellent work.

156 2021] Governing Nature 157

INTRODUCTION Roughly 2.4 billion years ago, photosynthetic cyanobacteria produced enough oxygen to rapidly tip the Earth’s atmosphere from a low-oxygen environment favoring anaerobic organisms to an oxygen-rich environment that poi- soned the anaerobes.1 This change, known in geology circles as the Great Ox- ygenation Event (GOE),2 is the largest extinction event in the history of the planet.3 The GOE’s underlying cause, the rapid rise in oxygen levels, resulted not from factors extrinsic to life on this planet, like meteors, volcanic activity, or natural climate cycles, but from the proliferation of a form of life itself.4 Until recently, this made the GOE unique among extinction events.5 Now, for the first time in 2.4 billion years, and for only the second time in Earth’s history, a single form of life is again driving an extinction event by transforming Earth’s surface on a global scale. This new transformation, brought about by humanity’s global-scale environmental impacts, ushered in a new geologic age: the Anthropocene.6 This new geological interval is demar- cated by the beginning of a planetary scale of influence for human activities. A parade of horribles mark the beginning of the Anthropocene era: widespread deposition of plastic; globally distributed fuel ash; increased global tempera-

1 See Heinrich D. Holland, The Oxygenation of the Atmosphere and Oceans, 361 PHIL. TRANS- ACTIONS: BIOLOGICAL SCIS. 903, 903, 906 (2006) (discussing the rise of oceanic and atmospheric oxygen levels over time); James F. Kasting & Janet L. Siefert, Life and the Evolution of Earth’s At- mosphere, 296 SCIENCE 1066, 1066 (2002) (noting that cyanobacteria are widely believed to have caused the initial rise in atmospheric oxygen that occurred roughly 2.3 billion years ago). 2 Holland, supra note 1, at 906. 3 Malcolm S.W. Hodgskiss et al., A Productivity Collapse to End Earth’s Great Oxidation, 116 PROCS. NAT’L ACAD. SCIS. 17207, 17212 (2019) (showing that “the decrease in gross primary productivity across” the end-GOE transition “eclipses even the largest extinction events in all of Earth’s history”). The GOE killed off most early forms of life, which were largely unable to tolerate an oxygenated atmosphere. Extinction Events, EARLY EARTH CENT., http://www.earlyearthcentral. com/extinctions_page.html [https://perma.cc/JG6A-TKT9]. 4 See Kasting & Siefert, supra note 1, at 1066 (explaining the role of cyanobacteria, an ancient form of life, in the rise of atmospheric oxygen over time). 5 UNIV. OF CAL. MUSEUM OF PALEONTOLOGY, What Causes Mass Extinctions?, UNDERSTAND- ING EVOLUTION, https://evolution.berkeley.edu/evolibrary/article/massextinct_08 [https://perma.cc/ 5NGC-U3CW] (tying the other five most significant extinction events to non-biological causes). Ter- restrial plants may have triggered a global cooling extinction event in the late Devonian, although the science on this is controversial. See generally Thomas J. Algeo et al., Terrestrial-Marine Teleconnec- tions in the Devonian: Links Between the Evolution of Land Plants, Weathering Processes, and Ma- rine Anoxic Events, 353 PHIL. TRANSACTIONS: BIOLOGICAL SCIS. 113, 113 (1998) (“[P]rovid[ing] a framework for understanding links between early land plant evolution and coeval marine anoxic and biotic events . . . .”). 6 Anthropocene, OXFORD ENGLISH DICTIONARY (2014) (defining Anthropocene as “[t]he epoch of geological time during which human activity is considered to be the dominant influence in the environment, climate, and ecology of the earth”). Nobel Laureate atmospheric chemist Paul Crutzen coined this term in 2000. Paul J. Crutzen & Eugene F. Stoermer, The “Anthropocene,” 41 GLOB. CHANGE NEWSL. 17, 17 (2000). 158 Boston College Law Review [Vol. 62:155

tures; increased CO2 levels resulting in ocean acidification and climate change; the radiocarbon bomb spike; increased nitrate concentrations essentially everywhere; the presence of anthropogenic persistent organic pollutants; and widespread extinction and other changes in biodiversity.7 Even if we take drastic action now, our ongoing global transformation will continue. These changes are fundamentally reshaping our planet. We will lose many species. Iconic ecosystems will disappear. Nature in one hundred years will be something very different than nature today. Yet this second biogenic global transformation is markedly different than the GOE: unlike mindless bacteria, humanity can guide this transformation toward a livable future. Environmental law should provide this guidance, but our current environmental law framework is not up to the task. Guiding this transition into the Anthropocene requires a reexamination of the fundamental assumptions underlying current environmental protection.8 It challenges the assumption of balance and stability underlying many of our U.S. domestic environmental laws.9 It also challenges our conceptions of untouched wilderness, free of human taint.10 The rapid pace and extent of environmental change means that many, perhaps most, natural systems will require active management to continue to support favored species or other desirable ecosystem conditions. Undertaking this management forces society to decide what role humans should play in our environmental transition. This is “the central question of modern environmentalism—the ‘correct’ human stewardship relationship to the natural world.”11 This Article considers how the United States has addressed this central question in domestic environmental law and concludes that we lack a governance framework for making pressing decisions about the appropriate goals for

7 Colin N. Waters et al., The Anthropocene Is Functionally and Stratigraphically Distinct from the Holocene, 351 SCIENCE 137, 138 (2016). Geologists have not yet determined the most appropriate official marker for the start of the Anthropocene. Id. at 137. 8 Eric Biber, Law in the Anthropocene Epoch, 106 GEO. L.J. 1, 1 (2017). “The crystallization of the Anthropocene, both in academic and lay circles, heralds an opening of sorts, a clarion call for change.” Shalanda H. Baker, Adaptive Law in the Anthropocene, 90 CHI.-KENT L. REV. 563, 567 (2015). 9 See John G. Sprankling, Property Law for the Anthropocene Era, 59 ARIZ. L. REV. 737, 737 (2017) (noting the need for property law to embrace a more dynamic and flexible system that accom- modates large environmental changes rather than stability). 10 See Alejandro E. Camacho, Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change, 27 YALE J. ON REGUL. 171, 226–27 (2010) (discussing the inevitability of human involvement in natural systems). 11 Douglas A. Kysar, The Consultants’ Republic, 121 HARV. L. REV. 2041, 2079 (2008) (reviewing TED NORDHAUS & MICHAEL SHELLENBERGER, BREAK THROUGH: FROM THE DEATH OF ENVI- RONMENTALISM TO THE POLITICS OF POSSIBILITY (2007)). 2021] Governing Nature 159 human stewardship of nature.12 To put the argument in a nutshell, anthropogenic changes in the environment are altering virtually every aspect of nature. For myriad reasons, humanity values particular aspects of our current environment (species, ecosystem services, the ecosystems themselves, and iconic landscapes, among many other things). As ecologists who work on ecosystems tell us, many of these aspects will change or disappear absent extensive management.13 Thus far, this extensive management has been largely ad hoc, but continuing in this way would be disastrous. Existing environmental law literature underestimates the impacts of the Anthropocene and the extent of guidance that environmental law will have to provide. Successful ecosystem management will require concrete and highly specific goals, but environmental law does not yet have a mechanism for setting these goals.14 This is a serious problem for environmental law. Restoration ecologists, the scientists who try to repair and restore ecosystems damaged by human activities, are already facing these challenges, and their lessons are broadly applicable in a world where any effort to protect nature has a restoration flavor. New restoration approaches differ from traditional ecological restoration by acknowledging that humans have made permanent changes to the landscape and that humans must now decide on goals for managing the landscape rather than letting historic conditions be the guide.15 In this Article, I take the growing field of reconciliation ecology as representative of these new approaches and use it to learn what ecosystem management in the Anthropocene will require from environmental law.16

12 See Ahjond Garmestani et al., Untapped Capacity for Resilience in Environmental Law, 116 PROCS. NAT’L ACAD. SCIS. 19899, 19899 (2019) (“Environmental governance is composed of law, policy, governance organizations, and individuals.”). 13 See infra notes 43–54 and accompanying text. 14 Some federal law provides guidance for ecosystems on federal lands, though this guidance is limited. Robert B. Keiter, Public Lands and Law Reform: Putting Theory, Policy, and Practice in Perspective, 2005 UTAH L. REV. 1127, 1140–42. Moreover, most ecosystems are not confined to large expanses of federal land. See Fred Bosselman, What Lawmakers Can Learn from Large-Scale Ecolo- gy, 17 J. LAND USE & ENV’T L. 207, 264 (2002) (“[M]ost of the species at risk [in the United States] are those that occupy human-dominated areas . . . .”). 15 See, e.g., Robyn Suddeth Grimm & Jay R. Lund, Multi-purpose Optimization for Reconcilia- tion Ecology on an Engineered Floodplain: Yolo Bypass, California, 14 S.F. ESTUARY & WATER- SHED SCI. 1, 2 (2016) (“Reconciliation ecology recognizes that traditional restoration . . . is no longer possible in most places.”). 16 The few legal discussions of reconciliation ecology since its birth are largely positive. See, e.g., Bosselman, supra note 14, at 323–24 (discussing the need for managed human intervention in nature); Rachael E. Salcido, The Success and Continued Challenges of the Yolo Bypass Wildlife Area: A Grassroots Restoration, 39 ECOLOGY L.Q. 1085, 1101 (2012) (arguing that reconciliation approaches “make[] restoration objectives far more achievable”); Blair M. Warner, Overhauling ESA Private Land Provisions in Light of the Renewable Energy Boom on Federal Public Lands, 89 NOTRE DAME L. REV. 1875, 1905 (2014) (defining reconciliation ecology as a means to “us[e] land better, instead of setting land aside” (quoting Michael L. Rosenzweig, Beyond Set-Asides, in 1 THE ENDANGERED SPE-

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Some will argue against active management. Professor Alejandro Camacho lays out four management options for the Anthropocene: doing nothing; using passive resource management strategies and hoping nature reassembles itself; actively managing to preserve historic conditions; and guiding “biological communities and landscapes to convert them into something deemed more compatible with new climatic conditions.”17 The first three options are unlikely to lead to favorable ecosystem outcomes. Doing nothing leads to unacceptable losses in biodiversity and ecosystem function.18 Passive management in hopes that nature will take care of itself fails because current rates of change far out- strip natural rates of readjustment.19 Active management to preserve pre- Anthropocene conditions across the board is impossibly difficult and expensive.20 Without transformative change in our economic systems, existing negative trends will continue to 2050 and beyond.21 Transformative change is the rational response, but that takes time, commitment, and the political wherewithal society has not yet been able to muster. In the interim, society is left with the fourth option, guiding biological communities into resilient new ecosystems better suited to the Anthropocene. To be clear, this Article does not take a starry-eyed view of better living through science-driven ecosystem management; humans have never done a great job of managing nature and will not do a perfect job in the future.22 Ef- forts to manage nature will provoke unanticipated negative changes, so this must be an iterative process.23 We must approach this process with humility,24

CIES ACT AT THIRTY 259, 265 (Dale D. Goble et al. eds., 2006))). But see Laura A. Cisneros, Envi- ronmental Resistance: Defying Capitalism’s Structure of False Rebellion, 8 GOLDEN GATE U. ENV’T L.J. 5, 17 (2015) (arguing that reconciliation ecology’s effectiveness is limited in its ability to address broader environmental concerns and will be constrained by capitalistic priorities); Carolina Murcia et al., A Critique of the “Novel Ecosystem” Concept, 29 TRENDS ECOLOGY & EVOLUTION 548, 548–52 (2014) (arguing that proponents of reconciliation ecology overestimate the number of ecosystems that have been irreversibly changed by human activity and are overconfident in their ability to predict climate changes). 17 Camacho, supra note 10, at 211. 18 See infra notes 49–54 and accompanying text. 19 See infra notes 76–83 and accompanying text. 20 See infra notes 495–527 and accompanying text. 21 SANDRA DÍAZ ET AL., SUMMARY FOR POLICYMAKERS OF THE IPBES GLOBAL ASSESSMENT REPORT ON BIODIVERSITY AND ECOSYSTEM SERVICES 16 (Manuela Carneiro da Cunha et al. eds., 2019). 22 See Robin Kundis Craig, “Stationarity Is Dead”—Long Live Transformation: Five Principles for Climate Change Adaptation Law, 34 HARV. ENV’T L. REV 9, 15 (2010) (calling for adaptive management as we enter “the increasingly uncomfortable world of changing complex systems and complex adaptive management—a world of unpredictability, poorly understood and changing feedback mechanisms, nonlinear changes, and ecological thresholds”). 23 See id. at 16 (arguing that climate change is a “long-term natural disaster” and thus requires an adaptive response); see also Craig Anthony Arnold, Adaptive Watershed Planning and Climate Change, 5 ENV’T & ENERGY L. & POL’Y J. 417, 433 (2010) (“Human actions with respect to the envi-

2021] Governing Nature 161 but nevertheless, we must approach it because many, maybe most, ecosystems now require ongoing human intervention at a massive scale to maintain a sem- blance of their historic conditions or to protect their desirable traits.25 “The question is not whether we must manage nature, but rather how shall we manage it—by accident, haphazardly, or with the calculated goal of its survival forever?”26 If ecosystem management is something we are already doing, at least we should be doing the best we can with a definite goal in mind.27 Disney’s Bambi and Pixar’s Wall-E illustrate the problem in an accessible way.28 In Bambi, the forest is a wonderful place, with animal friends and nu- clear animal families all getting along until humanity comes and destroys nature’s perfect balance.29 Humanity produces the first scary moments of the film; after Bambi nearly loses his mother in a stampede, he asks, “What happened, Mother? Why did we all run?”30 She answers, “Man was in the for-

ronment have complex, interconnected, dynamic, and multiscalar causes and effects, including often unexpected effects on the environment.”); J.B. Ruhl & James Salzman, Climate Change, Dead Zones, and Massive Problems in the Administrative State: A Guide for Whittling Away, 98 CALIF. L. REV. 59 (2010). 24 See John Copeland Nagle, Humility and Environmental Law, 10 LIBERTY U. L. REV. 335, 336– 37 (2016) (suggesting the need for environmental humility, or being “equally careful in how we approach both the effects of our actions on the natural environment and the effects of our laws”); see also Alyson C. Flournoy, Restoration Rx: An Evaluation and Prescription, 42 ARIZ. L. REV. 187, 194 (2000) (arguing that due to “our limited knowledge about and ability to control [environmental] factors . . . restoration should be undertaken with the care of uncontrolled medical experimentation, with awareness of its risks”). 25 See Holly Doremus, The Rhetoric and Reality of Nature Protection: Toward a New Discourse, 57 WASH. & LEE L. REV. 11, 56–57 (2000) (“[A] strict hands-off strategy is inconsistent with the protection of species, ecosystems, or natural processes . . . . Given the extensive changes in back- ground conditions, ecologists tell us that most areas dedicated to the preservation of nature cannot simply be left to their own devices, but will require active human management.”); Christoph Kueffer & Christopher N. Kaiser-Bunbury, Reconciling Conflicting Perspectives for Biodiversity Conserva- tion in the Anthropocene, 12 FRONTIERS ECOLOGY & ENV’T 131, 132 (2014) (“[H]istorical habitat conditions can be conserved only through continuous major human intervention.”). 26 Daniel Janzen, Gardenification of Wildland Nature and the Human Footprint, 279 SCIENCE 1312, 1313 (1998). 27 See Jamison E. Colburn, Habitat and Humanity: Public Lands Law in the Age of Ecology, 39 ARIZ. ST. L.J. 145, 197 (2007) (noting that, as we learn more about the impacts of human actions, we are increasingly “forced to choose which habitats to try to foster” (emphasis added)). 28 See STANFORD ALUMNI ASS’N, Generation Anthropocene: The Nature of Disney, MEDIUM (July 7, 2016), https://medium.com/stanford-alumni/5-stanford-podcasts-to-wake-your-brain-ff22736 cba8b#.oqcy37fk5 [https://perma.cc/NX39-48RT] (discussing Disney’s influence on society’s understanding of nature); see also DAVID WHITLEY, THE IDEA OF NATURE IN DISNEY ANIMATION: FROM SNOW WHITE TO WALL-E (2d ed. 2012) (same). 29 See Ursula K. Heise, Essay, Plasmatic Nature: Environmentalism and Animated Film, 26 PUB. CULTURE 301, 308 (2014) (noting Bambi’s “portray[al of] humans as killers and destroyers of the forest”). 30 BAMBI (Walt Disney Productions 1942). 162 Boston College Law Review [Vol. 62:155

est.”31 Mankind eventually burns much of the forest to the ground, but nature restores itself after man is banished. This is the Bambi approach to environmental problems: remove humanity from the equation and nature will heal itself. Many environmental laws, or at least the current implementation of those laws, focus on preserving historic conditions,32 assume that removal of ongoing human impacts will be enough to restore healthy ecosystems,33 or institu- tionalize a preference for inaction. These are Bambi laws, in the present implementation, based on the pre-Anthropocene worldview. Wall-E presents a starkly different view.34 The Wall-E Earth is a terrible place, the planet a trashy mess. Humanity has fled the planet, leaving behind robotic garbage collectors who move piles of trash from place to place. One spaceship full of people ends up in possession of a seedling, the first green plant seen in generations, and this miracle plant sparks their return to Earth. The returning people face an enormous task—remaking nature in a degraded world. In Wall-E, “Man” is not just in the forest; humanity is recreating the forest itself. This is the Wall-E approach to environmental problems: accept a human role in remaking nature. The juxtaposition of these films reveals the new obligations that a Wall-E world puts on society. Bambi “offers no hope for us poor humans to be anything other than destroyers . . . .”35 In contrast, Wall-E offers “a gentle, if un- mistakable, summons to remake the world before time runs out.”36 In the An- thropocene, the evidence shows that we now live in a Wall-E world, one that will not recover, or, indeed, even continue to function in the ways we have come to expect without drastic management efforts. We have a “responsibility to determine what we want these integrated ecosystems to look like and what species we want them to contain,”37 but we are relying on a Bambi law that does not provide ways to address these questions.38 Although existing environmental governance literature acknowledges that environmental law must become more adaptable, resilient, and polycentric, with broader public participation and substantive goals, the existing environmental laws and literature

31 Id. 32 Camacho, supra note 10, at 245. 33 Id. 34 WALL-E (Walt Disney Productions 2008). 35 Ralph H. Lutts, The Trouble with Bambi: Walt Disney’s Bambi and the American Vision of Na- ture, 36 FOREST & CONSERVATION HIST. 160, 169 (1992). 36 Frank Rich, Opinion, Wall-E for President, N.Y. TIMES (July 6, 2008), https://www.nytimes. com/2008/07/06/opinion/06rich.html [https://perma.cc/8CTS-GAEJ]. 37 Peter B. Moyle, Novel Aquatic Ecosystems: The New Reality for Streams in California and Other Mediterranean Climate Regions, 30 RIVER RSCH. & APPLICATIONS 1335, 1337 (2014). 38 Rich, supra note 36. 2021] Governing Nature 163

underestimate the extent of the challenge.39 In a Wall-E world, we are making decisions about the very fabric of ecosystems. To be clear, this is a managed retreat for environmentalists. Publicly recognizing that we cannot go back to a pre-Anthropocene state risks unmooring conservation goals from conservation. It gives up on the dream of restoring a balanced world, to the extent such a world existed. But perhaps embracing an environmentalism where society takes an active role in determining what nature is offers real hope for setting achievable goals and making conservation possible across a wide range of landscapes and in a future with ever-changing conditions. Part I of this Article looks to the science of ecosystem reconciliation to understand the new burdens facing environmental law and then reviews recent environmental law literature to demonstrate that we are not yet ready to meet this challenge.40 Part II considers the management of three representative ecosystems and shows how landscape changes have forced managers to take over many of the foundational processes that shape and maintain these ecosystems.41 This Part grounds the challenges outlined in Part I and provides real examples both of ways society is already shaping nature and of ways existing law makes that difficult in a Wall-E world. Part III addresses the missing decision-making framework for setting ecosystem goals and concludes that a successful governance structure must be local, must embrace approaches that recognize and accommodate unavoidable change, must incentivize regulatory flexibility, and yet ultimately must be based in humility.42

I. LESSONS FROM ECOSYSTEM RECONCILIATION Consider the ecosystem. An ecosystem is the sum total of “all of the organisms . . . in a given area interacting with the physical environment . . . .”43 Much of our conservation work focuses on species-level efforts, but the species in a given ecosystem depend on a host of complicated interactions.44 Broadly speaking, the species mix depends on both the physical factors in the area (e.g., climate, soil chemistry, water flow, frequency of major disturbances, etc., termed “environmental filters”) and the species interactions (e.g., compe-

39 See infra notes 109–111 and accompanying text. 40 See infra notes 43–119 and accompanying text. 41 See infra notes 120–397 and accompanying text. 42 See infra notes 398–527 and accompanying text. 43 EUGENE P. ODUM, FUNDAMENTALS OF ECOLOGY 6 (5th ed. 2005). 44 See generally Katrina Miriam Wyman, Rethinking the ESA to Reflect Human Dominion Over Nature, 17 N.Y.U. ENV’T L.J. 490, 514–15 (2008) (discussing the “hotspot approach” of conservation, whereby conservation efforts are focused on areas with large numbers of threatened species). 164 Boston College Law Review [Vol. 62:155

tition, predation, etc.) within the ecosystem.45 The environmental filters determine what species might be present in a given area, and then the biotic interactions in the context of that physical framework determine which species actually will survive.46 An ecosystem’s character can change based on alterations in even one of these filters or interactions.47 In ecosystems across the world, we are changing virtually all of them.48 Eighty-two percent of core ecological processes show evidence of impacts due to existing climate change.49 Important environmental filters like amount and timing of annual or seasonal precipitation, snowpack, timing and amount of streamflow, humidity, moisture stress, and temperature have moved outside of the ranges they have occupied for thousands of years.50 Existing ecosystems would have to move north at the rate of over one-quarter mile per year, every year, to keep pace with changing global temperatures.51 Only 8% of global protected areas still will be experiencing their current normal range of temperatures in one hundred years.52 Temperature change alone likely will drive at least 38% turnover in species in North and South America over the next ninety years; in other words, more than one in every three local species will be different in ninety years.53 On the marine side, most coral reef ecosystems will die within one hundred years, with disastrous impacts on the ocean food web.54 We are in for a bumpy ride. In the face of these constraints, much of ecosystem management law tries to hold aspects of ecosystems to their pre-Anthropocene forms—protecting native species in their historic habitat, for example. This reflects a Bambi world view that things should go back to the way they used to be, and that they will do so if left to their own devices. The prevalence of the Bambi worldview

45 Erik Stokstad, On the Origin of Ecological Structure, 326 SCIENCE 33, 33 (2009). 46 See Seth R. Reice, Nonequilibrium Determinants of Biological Community Structure, 82 AM. SCIENTIST 424, 427 (1994) (explaining that “the high diversity of species and the coexistence of similar species” in a given ecosystem depend on biotic disturbances and subsequent recoveries). 47 See J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No- Analog Future, 88 B.U. L. REV. 1, 23–26 (2008) (detailing many of the effects that climate change has on species). 48 See Scott R. Loarie et al., The Velocity of Climate Change, 462 NATURE 1052 (2009) (documenting the rates at which temperatures are rising across the globe in different landscapes). 49 Brett R. Scheffers et al., The Broad Footprint of Climate Change from Genes to Biomes to People, 354 SCIENCE 719, 719 (2016). 50 Donald A. Falk et al., Scaling Ecological Resilience, 7 FRONTIERS ECOLOGY & EVOLUTION 275, 275 (2019). 51 Loarie et al., supra note 48, at 1052 (explaining that the global mean rate of travel needed to maintain current temperatures is 0.42 kilometers per year, just over one quarter mile per year). 52 Id. at 1053. 53 Joshua J. Lawler et al., Projected Climate‐Induced Faunal Change in the Western Hemisphere, 90 ECOLOGY 588, 591 (2009). 54 Biber, supra note 8, at 11. 2021] Governing Nature 165

results in part from the intertwined history of developing environmental law and ecosystem science. The Bambi worldview is built on the myth of the balance of nature. Daniel Botkin outlines the three basic tenets of the balance of nature myth: “First, Nature, undisturbed by human influences, achieves a per- manency of form and structure that persists indefinitely. Second, this permanent condition is the best condition for Nature . . . . Third, when disturbed from this perfect state, Nature is capable of returning to it.”55 These themes echo Bambi: nature is a happy place when humans stay out of the forest. The history of the balance of nature myth is straightforward. Early ecologists embraced the myth as an apt description of nature, but in the early 1980s it began a quick descent into disfavor among ecologists, essentially because new data did not fit the balance model.56 By 1990, a new view emerged, one that saw ecosystems as systems in flux, operating within a wide range of potential states determined by geography, soil, random plant and animal coloniz- ers, and many other stochastic elements.57 The flux view posits that, after a disturbance, an ecosystem may or may not return to its prior state, depending on which plants happen to colonize the disturbed habitat the second time around.58 There is no set end point, no teleology. But by the time this flux view theory hit the scientific mainstream, U.S. lawmakers already had ensconced the balance view in many of our environmental laws, including the Endangered Species Act (ESA), the Wilderness Act, the National Environmental Policy Act (NEPA), and several provisions in the Clean Air and Clean Water Acts.59 Other commentators have ably explored the problems that a balance of nature ap-

55 Daniel B. Botkin, Adjusting Law to Nature’s Discordant Harmonies, 7 DUKE ENV’T L. & POL’Y F. 25, 26 (1996). 56 See Peggy L. Fiedler et al., The Paradigm Shift in Ecology and Its Implications for Conserva- tion, in THE ECOLOGICAL BASIS OF CONSERVATION: HETEROGENEITY, ECOSYSTEMS, AND BIODI- VERSITY 83, 84–87 (Steward T.A. Pickett et al. eds., 1997) (“In short, by the late 1970s, we began to discover that many of our fundamental ecological principles were inadequate for us to understand the natural world. Because suddenly it was clear that pristine natural areas and natural systems experi- enced great change (i.e., human induced, natural, and both), ecologists were profoundly challenged to produce new theories.”). 57 Donald Worster, The Ecology of Order and Chaos, 14 ENV’T HIST. REV. 1, 2 (1990); see also William K. Stevens, New Eye on Nature: The Real Constant Is Eternal Turmoil, N.Y. TIMES (July 31, 1990), https://www.nytimes.com/1990/07/31/science/new-eye-on-nature-the-real-constant-is-eternal- turmoil.html [https://perma.cc/SQK5-HH4U]. 58 H.H. Shugart, Succession, Phenomenon of, 7 ENCYCLOPEDIA OF BIODIVERSITY 63, 65–66 (2013). 59 16 U.S.C. §§ 1131–1136 (creating a national wilderness preservation system); Endangered Species Act of 1973, 16 U.S.C. §§ 1531–1544; Federal Water Pollution Control Act, 33 U.S.C. §§ 1251–1387; National Environmental Policy Act, 42 U.S.C. §§ 4321–4347; Clean Air Act of 1970, 42 U.S.C. §§ 7401–7671; Lakshman Guruswamy, Integration & Biocomplexity, 27 ECOLOGY L.Q. 1191, 1194 (2001). 166 Boston College Law Review [Vol. 62:155 proach creates in modern environmental law.60 This Article addresses the issue briefly and only because it has demonstrated such remarkable staying power and because it can misdirect conservation efforts.61 Managing ecosystems requires navigation of a host of these existing laws, some of which facilitate management and some of which stymie it. Statutes focused on the preservation of historic conditions (e.g., the National Park Service Organic Act and Wilder- ness Act)62 can frustrate the very management that might be necessary to protect those systems or to move to a more sustainable future state.63 Similarly, NEPA assumes that inaction is more desirable than action, which can slow management efforts.64 But when maintaining desirable nature requires intervention, this assumption is often faulty and leads to unnecessary regulatory delay. In other cases, the fault lies more with the implementation or attitudes around environmental law, rather than with the legislation itself. For example, the most recent regulations concerning the jurisdiction of the Clean Water Act explicitly exclude a variety of human-made water bodies, even though those waters provide habitat for a huge number of species.65 A bias against human- made habitats best explains the exclusion.66 Similarly, laws and managers of-

60 See Botkin, supra note 55, at 25 (arguing that modern environmental laws are “based on out- moded concepts” that depend on “arguments from plausibility rather than arguments based on scientific information,” and “suffer from a lack of communication between government and citizens and between experts and citizens”); Flournoy, supra note 24, at 197 (discussing the ethics of environmental restoration and noting that human impact on habitats is only natural); George Frampton, Ecosystem Management in the Clinton Administration, 7 DUKE ENV’T L. & POL’Y F. 39, 45 (1996) (explaining that although habitat reserve systems seek to protect evolving ecosystems, they are inflexible and thus incompatible with adaptive ecosystem management); Timothy H. Profeta, Managing Without a Bal- ance: Environmental Regulation in Light of Ecological Advances, 7 DUKE ENV’T L. & POL’Y F. 71, 75 (1996) (arguing that environmental regulation based on the balance of nature approach, which only requires humans to “keep from distorting [nature’s] equilibrium,” must be amended to account for “dynamic, shifting [eco]systems”); Mark Sagoff, Muddle or Muddle Through? Takings Jurisprudence Meets the Endangered Species Act, 38 WM. & MARY L. REV. 825, 899–900 (1997) (questioning how, for purposes of restoration, scientists could ever determine an ecosystem’s most natural or healthiest state); A. Dan Tarlock, Environmental Law: Ethics or Science?, 7 DUKE ENV’T L. & POL’Y F. 193, 206 (1996) (“The idea that all [ecosystem] management is an on-going experiment poses a profound challenge to our legal system because it undermines a core principle of procedural and substantive fairness—finality.”); Julie Thrower, Comment, Adaptive Management and NEPA: How a Nonequilib- rium View of Ecosystems Mandates Flexible Regulation, 33 ECOLOGY L.Q. 871, 873 (2006) (noting that current environmental laws are based upon the incorrect assumption that when left undisturbed, ecosystems are static). 61 See infra notes 465–494 and accompanying text. 62 See supra note 59 and accompanying text. 63 Camacho, supra note 10, at 245. 64 42 U.S.C. §§ 4321–4347; Bosselman, supra note 14, at 305. 65 Rachael E. Salcido & Karrigan Bork, Ditching Our Innocence: The Clean Water Act in the Age of the Anthropocene, 46 ENV’T L. 415, 415 (2016). 66 Id. 2021] Governing Nature 167

ten exhibit bias against nonnative species, even where those species have become integral parts of their new ecosystems, likely because their origins seem less “natural.”67 In this sense, the problem extends beyond the relatively few instances where written statutes rely on a balance of nature view; it includes both regulations and also attitudes and assumptions in the environmental law community and beyond. Addressing this issue is not really a matter of changing statutory law, but rather a matter of adjusting the way we think about the environment more generally.68 This Article does not present a comprehensive overview of current environmental laws that might stymie better environmental governance. Instead, it examines the problem by first exploring the field of reconciliation ecology to understand where the science is going69 and then discussing three case study governance frameworks and their effectiveness,70 in order to show that existing Bambi approaches to ecosystem management often fail to address the kinds of decisions facing society in a Wall-E world.71 Section A of this Part outlines the development of the reconciliation approach to ecosystem management.72 Section B discusses the benefits of reconciliation.73 Section C examines how restoration and reconciliation are reflected in current environmental law.74

A. From Restoration to Reconciliation Faced with the nearly impossible task of restoring heavily modified ecosystems, restoration ecologists increasingly have turned to other approaches, and the legal system must catch up.75 Early restoration ecologists focused on restoring ecosystems to an idealized historical state and then allowing the ecosystem to maintain itself in that

67 See Camacho, supra note 10, at 176–77 (“[A]ssisted migration is controversial because it challenges foundational tenets of conservation law and ethics that seek to preserve and restore preexisting biological systems and shield them from human interference.”). 68 In many cases, as with the ESA, broader and more flexible implementation would allow for solutions better adapted to our Wall-E world. Id. at 245 (noting that this is also true for the National Forest Management Act and the National Wildlife Refuge System Improvement Act); see also Brian Gray, Jennifer Harder & Karrigan Bork, Implementing Ecosystem-Based Management, 31 DUKE ENV’T L. & POL’Y F. (forthcoming 2021) (providing “a new state-level legal framework for better management of freshwater ecosystems”). 69 See supra notes 44–68 and accompanying text; infra notes 75–119 and accompanying text. 70 See infra notes 120–399 and accompanying text. 71 See infra notes 400–527 and accompanying text. 72 See infra notes 75–85 and accompanying text. 73 See infra notes 86–100 and accompanying text. 74 See infra notes 101–119 and accompanying text. 75 See infra notes 75–85 and accompanying text. 168 Boston College Law Review [Vol. 62:155 state.76 By the mid-1990s, however, some restoration ecologists already were recognizing that such restoration is often impossible.77 These ecologists embraced a variety of new approaches that acknowledge continuing human impacts and seek to shape impacted habitats in a way that benefits both humans and other life.78 I outline these developments below in hopes that this migration of purpose and approach can inform our understanding of ecosystem management in the Anthropocene and the new obligations it places on environmental law. Certainly, environmentalists should not give up on restoration for many ecosystems facing fundamental constraints—consider the many successful dam removal efforts throughout North America or the total removal of nonnative goats from some tropical islands79—but many, perhaps most ecosystems, are unlikely candidates for restoration to any reasonable approximation of their historic form.80 This is particularly true for freshwater ecosystems where large numbers of people rely on the water for agriculture or domestic supplies, and for habitats in urban, industrial, and agricultural centers.81 In- creasingly, even relatively pristine habitats face irreversible changes as well; harbingers of the Anthropocene like increased nutrients, nonnative species, and

76 NAT’L RSCH. COUNCIL, RESTORATION OF AQUATIC ECOSYSTEMS: SCIENCE, TECHNOLOGY AND PUBLIC POLICY 2 (1992) (defining restoration as “returning an ecosystem to a close approximation of its condition prior to disturbance”). 77 See, e.g., James Aronson & Edouard Le Floc’h, Commentary, Hierarchies and Landscape His- tory: Dialoguing with Hobbs and Norton, 4 RESTORATION ECOLOGY 327, 327 (1996) (“A historical overview can indicate ecological transformations, including ‘human-meditated vegetation switches’ that have gone into the making of the contemporary landscapes in which we now set ourselves to work as restorationists.” (citation omitted)); James Aronson & Edouard Le Floc’h, Vital Landscape Attributes: Missing Tools for Restoration Ecology, 4 RESTORATION ECOLOGY 377, 377 (1996) (noting that restoration or rehabilitation measures “should be sensitive to changes wrought by human as well as . . . nonhuman factors”). 78 See infra notes 84–99 and accompanying text. 79 Peter Jurich, Of Goats and Men: How the Galápagos Eradicated a Non-Native Species, PLAN- ET FORWARD (Sept. 30, 2019), https://www.planetforward.org/idea/invasive-species-goats-galapagos [https://perma.cc/3UEX-95PT]; Jessie Thomas-Blate, Dam Removal in 2018—Another Successful Year of Freeing Rivers, AM. RIVERS (Feb. 20, 2019), https://americanrivers.org/2019/02/dam- removal-in-2018-another-successful-year-of-freeing-rivers/#:~:text=From%201912%20through% 202018%2C%201%2C578,the%20world%20in%20dam%20building [https://perma.cc/FAM4-M7NH]. 80 Richard J. Hobbs et al., Novel Ecosystems: Concept or Inconvenient Reality? A Response to Murcia et al., 29 TRENDS ECOLOGY & EVOLUTION 645, 645 (2014) (“[B]arriers to restoration are frequently social and economic rather than strictly ecological . . . . However, these factors are rarely separable in practice. In some ecosystems, abiotic factors in particular are so altered that a return to a previous system is impossible (for instance, mining excavations and waste dumps, salinized wetlands, urban infrastructure) . . . . [T]he sheer scale and amount of effort required . . . constitutes the main barrier [to restoration] . . . .”). 81See Charles Simenstad et al., When Is Restoration Not? Incorporating Landscape-Scale Pro- cesses to Restore Self-sustaining Ecosystems in Coastal Wetland Restoration, 26 ECOLOGICAL ENG’G 27, 35 (2006) (describing the difficulties of restoring altered freshwater flow regimes). 2021] Governing Nature 169

increasing temperatures, changing filters which will drive a cascade of other ecosystem changes. What options, then, does restoration ecology offer these habitats? These impacted habitats are too numerous and too important to give up. The land set aside for nature and the land susceptible for full restoration or rehabilitation is simply not sufficient to stop the “extinction cascade.”82 In a world where we have lost somewhere between 50% to 95% of terrestrial habitats, science suggests we should expect to eventually lose 50% to 95% of species.83 That is devastating, but it is the end point of environmental policies that focus only on restoration of habitats to historic conditions and preservation of pristine habitats. We must embrace altered ecosystems. In 2003, Professor Michael Rosenzweig introduced the concept of reconciliation ecology as “the science of inventing, establishing, and maintaining new habitats to conserve species diversity in places where people live, work, or play.”84 The focus is on species protection in altered habitats that will not be restored to some historic baseline. By focusing on areas that cannot be protected or restored in a traditional sense, reconciliation ecology changes the effective size of the area available for species to use, reducing extinctions. Instead of treating the 50% to 95% of terrestrial habitats impacted by human activities as lost, reconciliation ecology seeks to make those places habitable by species that can use them. The science is solid.85

B. Reconciliation’s Contribution At the outset, it is important to acknowledge the semantic issues with reconciliation ecology.86 Restoration ecologists have long fought over the definition

82 Robert A. Francis & Jamie Lorimer, Urban Reconciliation Ecology: The Potential of Living Roofs and Walls, 92 J. ENV’T MGMT. 1429, 1429 (2011). 83 Michael L. Rosenzweig, Reconciliation Ecology and the Future of Species Diversity, 37 ORYX 194, 199–200 (2003). This conclusion is based on species-area relationships—larger areas contain more species than smaller ones. Id. at 195. This relationship holds across different species, through the fossil record, and over diverse scales. Id. at 194–95. 84 MICHAEL L. ROSENZWEIG, WIN-WIN ECOLOGY: HOW THE EARTH’S SPECIES CAN SURVIVE IN THE MIDST OF HUMAN ENTERPRISE 7 (2003). 85 Thomas Brooks, Rose-Tinted Ecology, 1 PLOS BIOLOGY 323, 324 (2003) (book review) (“[T]he fundamentals of Rosenzweig’s science are rock-solid.”). Reconciliation ecology, like most new wave approaches, is not without critics. See, e.g., id. (“Those hotspots of the planet richest in biodiversity also harbour the world’s most terrible poverty, inequality, and civil conflict. How can we expect the planet’s poorest people to cover the opportunity costs of reconciliation ecology?”); James R. Miller, Restoration, Reconciliation, and Reconnecting with Nature Nearby, 127 BIOLOGICAL CON- SERVATION 356, 359 (2006) (“The notion of reconciliation ecology is appealing, but requires a much broader base of support than currently exists if it is to be effective.”). 86 See infra notes 87–99 and accompanying text. 170 Boston College Law Review [Vol. 62:155 and goals for their field,87 and emerging alternatives to full restoration have assumed a wide variety of names over the past twenty years.88 These new approaches share many traits and together represent a new wave of conservation.89 As important as the semantic issues may be,90 resolving them is not a prerequisite to recognizing and embracing the key principles that reconciliation

87 Compare Peter Kareiva & Michelle Marvier, What Is Conservation Science?, 62 BIOSCIENCE 962, 963 (2012) (criticizing conservation biology for its “inattention to human well-being”), with Daniel F. Doak et al., What Is the Future of Conservation?, 29 TRENDS ECOLOGY & EVOLUTION 77, 77 (2014) (“[T]he shift in motivations and goals associated with [new conservation science] appear to arise largely from a belief system holding that the needs and wants of humans should be prioritized over any intrinsic or inherent rights and values of nature.”), and Noah Greenwald et al., Nothing New in Kareiva and Marvier, 63 BIOSCIENCE 241, 241 (2013) (“[I]t is plainly not accurate to state that conservation has ignored issues related to human well-being. . . . Even a cursory search of the journal Conservation Biology produces dozens of articles focused on the costs and benefits to society from conservation.” (citation omitted)), and Reed Noss et al., Humanity’s Domination of Nature Is Part of the Problem: A Response to Kareiva and Marvier, 63 BIOSCIENCE 241, 241 (2013) (“[A] mature conservation ethic would recognize and accept limits to growth and would ratchet back human domination of the biosphere, rather than embracing it.”). But see Andrew Light & Eric S. Higgs, The Poli- tics of Ecological Restoration, 18 ENV’T ETHICS 227, 229 (1996) (“These important ethical debates have not, regrettably, had much effect on professional restorationists. In fact, there has been almost no productive interplay between practitioners and philosophers.”). 88 Examples include agroecology, conservation in urban areas, ecosystem stewardship, land sharing/land sparing, reconciliation ecology, intervention ecology, managed relocation, novel ecosystems, ecosystem realignment, community-based management, countryside conservation, renewal ecology, conservation science (as opposed to conservation biology), and human ecology. See David M.J.S. Bowman et al., Renewal Ecology: Conservation for the Anthropocene, 25 RESTORATION ECOLOGY 674, 674, 675 (2017) (using the term “renewal ecology,” and referencing “conservation science” and “human ecology”); M.G. Chapman et al., An Assessment of the Current Usage of Ecological Engi- neering and Reconciliation Ecology in Managing Alterations to Habitats in Urban Estuaries, 120 ECOLOGICAL ENG’G 560, 561 (2018) (using the term “reconciliation ecology”); Laura J. Martin et al., Conservation Opportunities Across the World’s Anthromes, 20 DIVERSITY & DISTRIBS. 745, 746 (2014) (listing environmental proposals termed “agroecology,” “conservation in urban areas,” “ecosystem stewardship,” “land sharing/land sparing,” “reconciliation ecology,” “intervention ecology,” “managed relocation,” “novel ecosystems,” “realignment,” and “community-based management,” among others); see also Margaret A. Palmer & J.B. Ruhl, Aligning Restoration Science and the Law to Sustain Ecological Infrastructure for the Future, 13 FRONTIERS ECOLOGY & ENV’T 512 (2015) (using the phrase “ecological restoration”); Gordon Steinhoff, Restoring Nature in Protected Areas, 5 ARIZ. J. ENV’T L. & POL’Y 302 (2014) (same). 89 This new wave is not just theoretical; it has been increasingly operationalized in heavily impacted settings. See, e.g., Chapman et al., supra note 88, at 560–63 (discussing the current use of reconciliation ecology in urban estuaries); Grimm & Lund, supra note 15, at 19 (modeling habitat and economic improvements accomplished through small changes in land and water use); Lynette H.L. Loke et al., Creating Complex Habitats for Restoration and Reconciliation, 77 ECOLOGICAL ENG’G 307 (2015); Ateret Shabtay et al., Incorporating Principles of Reconciliation Ecology to Achieve Eco- system-Based Marine Spatial Planning, 120 ECOLOGICAL ENG’G 595, 595 (2018) (advocating for the use of reconciliation ecology in marine area management). The reconciliatory approach is gaining attention across a wide range of areas and ideologies. See generally Stewart T.A. Pickett et al., Beyond Urban Legends: An Emerging Framework of Urban Ecology, as Illustrated by the Baltimore Ecosys- tem Study, 58 BIOSCIENCE 139, 139 (2008) (discussing the interdisciplinary nature of urban ecology). 2021] Governing Nature 171

ecology and other similar approaches bring to ecosystem management: (1) a focus on ecosystems with a significant and ongoing human presence; (2) a re- jection of some historic ideal as a model for future ecosystems; and thus (3) a recognition of the need for explicit goals for ecosystem improvement. These principles generally are absent in formal restoration ecology efforts, and reconciliation ecology’s explicit recognition of their importance marks a significant contribution to our efforts to improve or maintain ecosystem conditions in the Anthropocene. First, reconciliation ecology’s focus on human-dominated ecosystems greatly expands the number and geographic area of ecosystems amenable to improvement, increasing the number of species that can be protected.91 On a philosophical level, recognizing the value of anthropogenic or otherwise impacted habitats moves the conservation conversation past a simple dichotomy of pure versus ruined habitats.92 In cases where abiotic processes have been altered, where local or landscape-level changes in land use or species distribution have occurred, or where climate change limits the viability of past ecosystems, restoration is often unsuccessful.93 Reconciliation, however, still may be possible and would provide at least a chance to save more species.94 Second, reconciliation ecology’s move away from historic baselines as the goal of ecosystem restoration is a pragmatic approach in the Anthropocene. At the core, “[c]oncern for historical conditions is one of the main attributes of restoration separating it from related practices such as reclamation and rehabilitation.”95 But in most impacted places, society is unwilling or unable to roll

90 E.g., Eric S. Higgs, What Is Good Ecological Restoration?, 11 CONSERVATION BIOLOGY 338, 340 (1997) (arguing that papering over definitional differences “ignores the power of language in shaping belief” and “passes over crucial differences in the way restoration is perceived”). 91 See Rosenzweig, supra note 83, at 194 (explaining that “a larger area within a biogeographical province will tend to include more habitat types, and thus more species, than a smaller one”). 92 See, e.g., James R. Miller, Biodiversity Conservation and the Extinction of Experience, 20 TRENDS ECOLOGY & EVOLUTION 430, 433 (2005) (noting the benefits that impacted environments can have on human health and well-being). 93 Katharine N. Suding, Toward an Era of Restoration in Ecology: Successes, Failures, and Op- portunities Ahead, 42 ANN. REV. ECOLOGY, EVOLUTION & SYSTEMATICS 465, 465 (2011). This is particularly true in aquatic systems. Robert A. Francis, Perspectives on the Potential for Reconcilia- tion Ecology in Urban Riverscapes, 4 CAB REVS. 1, 2 (2009) (“River systems within heavily managed urban landscapes often present limited opportunities for restoration or rehabilitation, given the level of hard engineering modification performed on the river along with continued direct use of the river’s resources . . . . In these situations, a more feasible approach to ecological river management may be ‘river reconciliation’ . . . .”). 94 Rosenzweig, supra note 83, at 194 (noting that increasing the areas available for conservation “gives us the realistic hope that we can prevent most [or at least more] losses of species”). 95 ERIC S. HIGGS, NATURE BY DESIGN: PEOPLE, NATURAL PROCESS, AND ECOLOGICAL RESTO- RATION 95 (2003); see also SOC’Y FOR ECOLOGICAL RESTORATION INT’L SCI. & POL’Y WORKING GRP., THE SER INTERNATIONAL PRIMER ON ECOLOGICAL RESTORATION 1 (2004) (explaining that true “restoration attempts to return an ecosystem to its historic trajectory”). 172 Boston College Law Review [Vol. 62:155

ecosystems back to some historic baseline.96 Again, this is a retreat, but a hopeful retreat that moves beyond ineffective Bambi approaches in some loca- tions. Third, because an ecosystem’s historic form often fails to provide a strict guide for recovery efforts in many places, ecological reconciliation requires “setting realistic policy goals (including which species to favor) . . . .”97 This step is vital: “[t]he key for maintaining desirable aquatic species and conditions in this and other ecosystems is active management towards a defined set of goals.”98 This is a crucial difference from traditional restoration, where historic ecosystem conditions provide the goal. Deciding what nature should be is emotionally and philosophically difficult for many conservationists, but it is the most important lesson for developing environmental law.99 As the ecology literature makes clear, in many cases right now, no one is steering the ship. The challenges that compromised ecosystems pose for restorationists mir- ror to a surprising extent the challenges of any ecosystem management in the Anthropocene. Virtually all ecosystems now face some degree of human modification and their historic states may no longer provide realistic targets for management. Therefore, any management efforts must adopt new and explicit goals. A key question emerges: how do we set those goals?100

C. The Environmental Law Response This question—how society determines the desired nature of nature—is a recurring theme in the environmental law literature.101 As Professor Dan Tar- lock noted in 2002, “[M]odern ecology and environmental management are returning to the problem posed by Genesis: How should one manage the Gar- den of Eden after it has been populated and degraded by humans?”102 At the

96 Katharine N. Suding et al., Alternative States and Positive Feedbacks in Restoration Ecology, 19 TRENDS ECOLOGY & EVOLUTION 46, 46 (2004) (noting that changes in biotic factors and feedback loops “can make a degraded system resilient to restorative change”). Even if restoration were possible, the practical and philosophical difficulties in selecting a historical baseline are immense and well documented. See Melinda Harm Benson, Intelligent Tinkering: The Endangered Species Act and Re- silience, 17 ECOLOGY & SOC’Y 28, 33 (2012) (“[F]or most [social-ecological systems], there is no ‘going back’ . . . .”); A. Dan Tarlock, Slouching Toward Eden: The Eco-pragmatic Challenges of Ecosystem Revival, 87 MINN. L. REV. 1173, 1187–88 (2003) (discussing the impossibility of finding a rational historical target for restoration). But see Kueffer & Kaiser-Bunbury, supra note 25, at 136 (arguing that broader conservation goals “should not distract attention from the immediate need to protect and restore remaining large tracts of relatively undisturbed wildlands on continents”). 97 Moyle, supra note 37, at 1342. 98 Id. at 1337. 99 See infra notes 382–451 and accompanying text. 100 See infra notes 382–451 and accompanying text. 101 See infra notes 102–119 and accompanying text. 102 Tarlock, supra note 96, at 1175. 2021] Governing Nature 173

time, some commentators still argued that preservation presented a viable strategy, 103 but in light of continuing and accelerating climate change, the literature increasingly has accepted the idea that preservation will not maintain existing ecosystems.104 This shift has resulted in an increase in literature discussing adaptation to climate change, albeit adaptation of the natural environment.105 For a long time, environmental law pulled back from a hard look at climate change adaptation. A decade ago, Professor J.B. Ruhl called this paucity of climate adaptation analysis an “accruing ‘adaptation deficit’” and noted that adaptation is rarely prioritized in policy proposals.106 He further argued that environmental law would undergo a structural transformation as it moved from “preservationism to transitionalism.”107 Professor Ruhl concluded that “adaptation policy dialogue has thus far not allowed environmental law to stake adaptation as its domain. Rather, environmental law will have to earn its position in the multipolicy mix that will coalesce around the tremendously complex demands of climate change adaptation.”108 This observation has only become more relevant in light of the climate and other challenges of the Anthropocene. Certainly, there is significant and growing environmental governance literature paving the way for new forms of environmental governance. This literature focuses on the characteristics governance systems must have to be successful, including “flexibility and adaptability, broad stakeholder participation, and institutions that can take multiple scales of time and space into account, with nested scales of governance.”109 Nevertheless, this work still struggles to confront the deep and wide-ranging questions that governance systems will have to answer.

103 See Bruce Pardy, Changing Nature: The Myth of the Inevitability of Ecosystem Management, 20 PACE ENV’T L. REV. 675, 678–79 (2003) (arguing that ecosystem preservation offered a viable alternative to management). 104 See, e.g., Craig, supra note 22, at 15 (“[C]limate change alters baseline ecosystem conditions in ways that are currently beyond immediate human control, regardless of mitigation efforts.” (footnote omitted)); Kalyani Robbins, The Biodiversity Paradigm Shift: Adapting the Endangered Species Act to Climate Change, 27 FORDHAM ENV’T L. REV. 57, 75 (2016) (“We have reached the end of the hands-off era, the end of preserving anything that is truly pristine. . . . [We] must instead accept the responsibility for fixing what we have already broken.”). 105 See supra note 104 and accompanying text; infra note 109 and accompanying text. 106 J.B. Ruhl, Climate Change Adaptation and the Structural Transformation of Environmental Law, 40 ENV’T L. 363, 372–73 (2010); see also Anastasia Telesetsky, Ecoscapes: The Future of Place-Based Ecological Restoration Laws, 14 VT. J. ENV’T L. 493, 496 (2013) (collecting citations and observing “only a handful of articles and books . . . address the legal challenges inherent in addressing . . . restoration . . . in order to adapt to the Anthropocene Era”). 107 Ruhl, supra note 106, at 377, 378. 108 Id. at 433–34. 109 Annecoos Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in En- vironmental and Natural Resources Law, 38 ENV’T L. 1239, 1295 (2008). 174 Boston College Law Review [Vol. 62:155

Much of the recent work by new governance writers promotes resilience and adaptive management.110 Other significant work in the new environmental governance field applies the resilience or adaptive management frameworks to specific problems and institutions, often to evaluate how well the particular institution is prepared to be resilient or adaptive.111 The new environmental governance work is tremendously valuable, and it will provide the foundation for designing the next generation of environmental law. But comparing the answers in the new governance work to those questions posed by reconciliation ecology and its sibling fields suggests that the environmental law is not yet prepared to provide the answers that managers need. This Article builds on the existing new governance literature by examining what, exactly, the new governance structures will have to achieve. With a few notable exceptions, much of this literature works at a fairly high level of abstraction, which allows for systematic recommendations. This approach, however, has the downfall of overlooking the nitty-gritty details or ecosystem management. For example, Professor Craig’s defining work sets out five principles for environmental management in the face of climate change—monitor and study everything; reduce non-climate change stresses; plan for the long term with increased coordination; promote principled flexibility; and accept that adaptation will be painful112—in service of the need to adopt shared and overarching principles for climate change adaptation that can apply in a variety of scenarios. Yet, moving from overarching principles to the specifics of eco-

110 See Arnold, supra note 23, at 420–21 (defining and advocating for adaptive ecosystem management); Barbara Cosens, Transboundary River Governance in the Face of Uncertainty: Resilience Theory and the Columbia River Treaty, 30 J. LAND RES. & ENV’T L. 229, 237 (2010) (“[R]esilience theory focuses on both the capacity of the system to return to its prior level of self-organization following a disturbance, and the degree to which that capacity is influenced by or sensitive to changes at smaller and larger scales. When applied to social systems, resilience is the ‘ability of human communities to withstand and recover from stresses.’” (footnotes omitted) (quoting Stockholm Resilience Ctr., RESILIENCE DICTIONARY, https://www.stockholmresilience.org/research/whatisresilience/ resiliencedictionary.4.aeea46911a3127427980004355.html [https://perma.cc/HZX2-5Z6E])); Craig, supra note 22, at 9 (“The time to start preparing for [continuing climate change] is now, by making adaptation part of a national climate change policy.”); see also Ahjond S. Garmestani & Melinda Harm Benson, A Framework for Resilience-Based Governance of Social-Ecological Systems, 18 ECOLOGY & SOC’Y 9, 9 (2013) (summarizing the elements necessary for the integration of resilience science in governance, i.e., panarchy, adaptive management, and adaptive governance). Professor Arnold’s work highlights the need to promote flexibility and adaptability in ecosystem management, which is, in turn, necessary to make both governance systems and ecosystems more resilient in the face of ongoing and unpredictable change. See generally Arnold, supra note 23. 111 E.g., Melinda Harm Benson et al., Water Governance Challenges in New Mexico’s Middle Rio Grande Valley: A Resilience Assessment, 51 IDAHO L. REV. 195, 196 (2014) (discussing “the challenges facing water governance in the [Middle Rio Grande river], placing particular emphasis on the current function and capacity of existing governance structures”); Cosens, supra note 110, at 256 (identifying the elements of adaptive governance in the Columbia River basin). 112 Craig, supra note 22, at 40, 43, 53, 63, 69. 2021] Governing Nature 175

system management is an intractable part of the problem.113 The role of law assumed by these new institutional models thus may not be sufficient to address the challenges posed by the Anthropocene.114 In the end, managers will need guidance about exactly what kinds of nature to protect, which species to favor, and how much society is willing to invest in maintaining the status quo. These decisions, which managers will face again and again, require an unprecedented specificity in environmental governance.115 A few scholars have begun to explore the kinds of questions we need to answer. Professor Camacho’s exploration of assisted migration (i.e., moving species into habitats that will better suit them based on predicted future cli- mates) suggests that “perhaps the most important challenge raised by climate change is procedural—how societies should structure processes for formulat- ing answers to the substantive challenges raised by a changing climate.”116 As he notes, “[C]limate change obliges the cultivation of a governance system that adapts to and manages dynamic natural systems, reduces scientific uncertainty, and informs and integrates the public into an open decisionmaking process for prioritizing the resource values that matter.”117 Professor Kalyani Robbins discusses the changing needs of threatened and endangered species, and uses that framework to draw out the complexities of managing ecosystems as their very foundations change.118 Together, these works set up the focus of this Article: what exactly does ecosystem reconciliation in the Anthropocene require from environmental law?119

II. OUR WALL-E WORLD To answer that question, this Article explores three case studies of ecosystems undergoing reconciliation, two in California and one in Kansas.120 These ecosystems span three different environments—terrestrial, wetland, and aquatic—across a variety of land uses. These ecosystems are not unique in terms of

113 See Flournoy, supra note 24, at 201–04 (outlining the challenges in addressing the specificities of ecosystem restoration). 114 See Wiersema, supra note 109, at 1295 (“[W]hat is missing . . . is some assurance that interests vital to long-term protection of healthy ecosystems will be adequately taken into account. . . . To resolve this problem, we need to rethink the relegation of the role of law to procedure and re-imagine a role for law that is substantive.”). 115 See James D. Proctor, Saving Nature in the Anthropocene, 3 J. ENV’T STUD. & SCI. 83, 83 (2013) (“The science and politics of living well in this enduring age of the Anthropocene may require attention less to generalities of nature than the interwoven details that constitute our environment.”). 116 Camacho, supra note 10, at 178–79. 117 Id. at 179. 118 Robbins, supra note 104, at 57–58. 119 See infra notes 396–525 and accompanying text. 120 See infra notes 130–376 and accompanying text. 176 Boston College Law Review [Vol. 62:155

the challenges they face; in each case, as I detail in the text, they stand in for any number of ecosystems facing similar challenges. They miss some issues— private land versus public land management, for example—but in each of these ecosystems, humans have changed the environmental filters and the species interactions within the ecosystem, and these changes have percolated through the ecosystem itself. By changing the core ecological processes, we change the species these ecosystems can support and the ecosystem services they deliver. 121 The changes are relatively permanent; as will be discussed, the ecosystems cannot be restored. To maintain selected aspects of these ecosystems in a desired condition, managers are undertaking extensive, continuous, and expensive interventions to maintain the status quo for the foreseeable future. These are relative success stories, each in their own way, sometimes in spite of existing law, sometimes succeeding through additional management beyond that anticipated by existing law. In every case, managers have embraced a Wall-E view of their role in the nature and have had to create new governance frameworks on top of existing law. They understand “the centrality of human actions to shaping modern ecosystems,” and have found a way to shape these ecosystems to meet a wide variety of needs.122 Although we lack an agreed measure of success for ecosystem management in the Anthropocene, these case studies each provide as least some glimmers of hope. I review the management of California’s Serpentine ecosystem for the bay checkerspot butterfly in Section A,123 management of the Cheyenne Bottoms Wildlife Area in central Kansas in Section B,124 and management of the Amer- ican River ecosystem in Northern California in Section C.125 Section D provides a brief overview of other federal management efforts.126 For each of the three case studies, I first provide an overview of the ecosystem and the ongoing management actions and then explain how the case study exemplifies ecosystem reconciliation.127 I next lay out the legal framework for the ecosystem’s management128 and conclude by highlighting some of the strengths and weaknesses of existing law for management efforts in a Wall-E world.129

121 See Reice, supra note 46, at 427 (arguing that ecosystems go through cycles of disturbance and recovery that contribute to species diversity and ultimately come to define the community structure); Stokstad, supra note 45, at 33 (noting that “[a] combination of physical and biological forces,” known as “environmental filters,” “broadly determine which species can live where”). 122 Laurie Yung et al., Engaging the Public in Novel Ecosystems, in NOVEL ECOSYSTEMS: IN- TERVENING IN THE NEW ECOLOGICAL WORLD ORDER 247 (Richard J. Hobbs et al. eds., 2013). 123 See infra notes 130–211and accompanying text. 124 See infra notes 212–278 and accompanying text. 125 See infra notes 279–376 and accompanying text. 126 See infra notes 377–397 and accompanying text. 127 See supra notes 44–119 and accompanying text. 128 See infra notes 120–397 and accompanying text. 129 See infra notes 398–527 and accompanying text. 2021] Governing Nature 177

A. California’s Serpentine: Combating Nitrogen Enrichment Nitrogen enrichment, one of the proposed markers of the Anthropo- cene,130 is a changing environmental filter.131 Human activities “have doubled the amount of [nitrogen] in terrestrial and aquatic ecosystems.”132 Most of the nitrogen in human bodies now comes from industrial sources.133 Increased nitrogen increases the fertility of ecosystems. That might sound like a good thing, but increasing the fertility changes what species can survive or thrive in an ecosystem.134 Nitrogen impacts ecosystems and species across California,135 and factors in the decline of seventy-eight species listed or proposed for listing in the United States.136 California’s threatened bay checkerspot butterfly is the paradigmatic example.137 The beautiful two-inch wide butterfly starts as a caterpillar that seems to require one host plant—the dwarf plantain.138 Without these host plants, the caterpillars die. The dwarf plantain is adapted to the serpentine soils in the San Francisco Bay area, low-nutrient soils that support a unique ecosystem;139 however, much of this habitat has been lost to housing and commercial real estate development.140 In the habitat that remains, increasing nitrogen inputs are enriching the low-nutrient soils, allowing other plants to invade serpentine ecosystems where they otherwise would not survive.141 With the added nitro-

130 See generally Waters et al., supra note 7, at aad2622-1, aad2622-4 (noting that the growing presence of Nitrogen on Earth could mark the beginning of the Anthropocene). 131 See Mark E. Fenn et al., Nitrogen Critical Loads and Management Alternatives for N-Impacted Ecosystems in California, 91 J. ENV’T MGMT. 2404, 2404 (2010) (warning that in places with growing nitrogen deposits, certain “ecosystem types are at risk of major vegetation type change”). 132 Daniel L. Hernández et al., Nitrogen Pollution Is Linked to US Listed Species Declines, 66 BIO SCIENCE 213, 214 (2016). 133 Michael Pollan, What’s Eating America, SMITHSONIAN MAG. (July 2006), https://www. smithsonianmag.com/history/whats-eating-america-121229356/ [https://perma.cc/7WQS-58R6]. 134 Jae R. Pasari et al., Interactive Effects of Nitrogen Deposition and Grazing on Plant Species Composition in a Serpentine Grassland, 67 RANGELAND ECOLOGY & MGMT. 693, 693 (2014). 135 See generally Fenn et al., supra note 131, at 2404 (discussing the effects of excessive nitrogen deposits in a number of California ecosystems). 136 Hernández et al., supra note 132, at 215. This is likely an underestimate, and the number is likely to increase given the “amplifying interactions between [nitrogen] and other environmental factors, such as climate change.” Id. 137 See Zdravka Tzankova et al., Can the ESA Address the Threats of Atmospheric Nitrogen Dep- osition? Insights from the Case of the Bay Checkerspot Butterfly, 35 HARV. ENV’T L. REV. 433, 433 (2011) (“[T]he biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition.”). 138 U.S. FISH & WILDLIFE SERVICES (FWS), RECOVERY PLAN FOR SERPENTINE SOIL SPECIES OF THE SAN FRANCISCO BAY AREA, at II-181 (1998). 139 Id. at I-10. 140 Id. at II-189. 141 Hernández et al., supra note 132, at 219. Low nitrogen levels give plants adapted to growth in low nitrogen environments an advantage over invading plants that require more nitrogen. Id. at 218.

178 Boston College Law Review [Vol. 62:155

gen, dwarf plantain and other native plants lose their comparative advantage over the invading plants, and the nonnative competitors crowd them out.142 This decreases the prevalence of the dwarf plantain, which eliminates caterpillar food, which ultimately puts the butterfly species in danger of extinction. The problem—excess nitrogen—is systemic.143 Major sources of nitrogen include transportation, agriculture, power plants, industry, and, along the West Coast of the United States, transpacific nitrogen from Southeast Asia.144 The nitrogen situation is not hopeless,145 but reducing nitrogen emissions is difficult and will take considerable time and political will. In the interim, without ongoing management, the nonnative competitors will crowd out native plants and the bay checkerspot butterfly will go extinct.146 Ongoing management takes several forms, but grazing by cattle appears to mitigate the worst impacts of nitrogen deposition at current levels, as cattle preferentially eat the invasive plants.147 Nevertheless, grazing does not benefit all native plant species and must be carefully managed to achieve the right intensity for positive effects, and cattle are not welcome in every landscape. Occasionally, cattle are insufficient and other management techniques— constant erosion, fire, scraping, or other efforts—are required to shift the ecosystem back toward supporting native plants and, thereby, the butterfly.148 For example, managers at California’s Edgewood Natural Preserve mow and then dethatch the butterfly habitat on a once-every-few-years basis.149 This kind of gardening for butterflies will be required for the foreseeable future in any location where we want to maintain the butterfly populations and their ecosystems.

Increasing the nitrogen levels in such environments allows invading plants to grow more easily, over- taking the native species. Id. 142 Id. at 219. 143 See generally Mark E. Fenn et al., Nitrogen Emissions, Deposition, and Monitoring in the Western United States, 53 BIOSCIENCE 391, 392 (2003) (discussing the effects of nitrogen deposition on ecosystem organization and functioning). 144 Id. at 391. Roughly two-thirds of the nitrogen comes from notoriously difficult to control mo- bile sources. Id. at 393. What is more, the portion coming from Southeast Asia has doubled since the mid-1970s and likely will have doubled again by 2030. Id. at 399. 145 California reports that emissions from motor vehicles decreased somewhere between 5% and 28% from 1985 to 2000. Id. at 393. 146 Population levels vary wildly from year to year, with a forty-fold reduction in population noted in one location from one year to the next. FWS, supra note 138, at II-188. 147 Hernández et al., supra note 132, at 219. Although the ecosystems did not have significant historic grazing pressure, grazing provides the best approach and has maintained the bay checkerspot butterfly habitat for over thirty years. Id. 148 CHRISTAL NIEDERER ET AL., BAY CHECKERSPOT BUTTERFLY: REINTRODUCTION FEASIBILITY STUDY AT SAN BRUNO MOUNTAIN 27 (2015). 149 CHRISTAL NIEDERER & STUART B. WEISS, BAY CHECKERSPOT REINTRODUCTION: COYOTE RIDGE TO EDGEWOOD NATURAL PRESERVE 3 (2016). 2021] Governing Nature 179

1. Serpentine Management as Reconciliation The butterfly’s ecosystem occurs on San Francisco Bay Area serpentine soil outcroppings, across public and privately owned land over several California counties.150 Truly restoring the ecosystem would require elimination of nitrogen inputs from fossil fuel combustion and reestablishment of habitats destroyed by housing and commercial developments.151 This is unlikely—Californians are unlikely to give up their cars or their power plants or their existing housing in time to save the butterfly. The difference between protecting the butterfly by focusing on restoring its historical habitat versus reconciling the butterfly’s needs with the (seemingly) unavoidable human uses of the ecosystem is the difference between traditional ecosystem restoration and Rosenzweig’s reconciliation.152 To counter the nitrogen impacts, ecologists use grazing, mowing, and dethatching to encourage native plant growth.153 Perhaps most striking, some ecologists suggest that the bay checkerspot may be able to use a widespread nonnative perennial weed, Plantago lanceolata, as a host plant.154 Related butterfly species have evolved to use this nonnative plant when it has invaded their ecosystems.155 If the butterfly survives, it will do so because managers have found ways to guide the altered ecosystem and the evolution of the butterfly itself to a new endpoint. The result? A novel ecosystem, new environmental filters, new biological interactions, and significant permanent human management. Following the ecosystem reconciliation paradigm, the butterfly protection work has sought to protect compromised systems, replete with human impacts, with a clear policy goal of single species protection.156

150 Public and private lands are both essential to ecosystem management and biodiversity protection. Karrigan Bork, Listed Species Reintroductions on Private Land—Limiting Landowner Liability, 30 STAN. ENV’T L.J. 177, 181–82 (2011). Managing ecosystems across different land types presents challenges unique to each category, and future research should address the challenges of managing ecosystems on private lands in the Anthropocene. 151 See supra notes 130–149 and accompanying text. 152 Rosenzweig, supra note 83, at 194. Although the projects are not explicitly labeled as reconciliation projects, as Rosenzweig notes, most efforts to protect heavily impacted ecosystems are “in- tentionally or inadvertently espousing reconciliation ecology.” Id. 153 NIEDERER & WEISS, supra note 149, at 3. 154 NIEDERER ET AL., supra note 148, at 27. 155 See Michael C. Singer et al., Rapid Natural and Anthropogenic Diet Evolution: Three Exam- ples from Checkerspot Butterflies, in SPECIALIZATION, SPECIATION, AND RADIATION: THE EVOLU- TIONARY BIOLOGY OF HERBIVOROUS INSECTS 311, 314 (Kelley Jean Tilmon ed., 2008) (noting rapid evolution toward preference of the novel Plantago host among both larva and adults over roughly ten years). 156 See infra notes 157–211 and accompanying text. 180 Boston College Law Review [Vol. 62:155

2. Ad Hoc Management of the Bay Checkerspot Butterfly Under the Endangered Species Act a. The Endangered Species Act and Ecosystem Management The federal ESA drives the management of the bay checkerspot butterfly. 157 The ESA has revolutionized social norms, creating an expectation that society will attempt to save all species,158 and has driven “many, if not most, large-scale biodiversity protection and habitat restoration efforts in the United States.”159 The ESA creates a legally enforceable requirement that species be protected. To be clear, the ESA is key for environmental protection—without the ESA, we would not even be having these conversations.160 The clear and singular goal, single species protection, is both the strength and weakness of state and federal ESAs.161 What is absent from the ESA, at least as it is currently implemented? Both meaningful protection of listed species’ ecosystems and mechanisms to manage these ecosystems over the long term. The Act offers broad, ambitious language about ecosystems: the ESA aims “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved . . . .”162 But the mechanisms for achieving this goal all work at the level of individual species, and the current implementation of the Act by the National Marine Fisheries Service (NMFS) and the U.S. Fish and Wildlife Service (FWS) reinforces this species-level focus.163 The ESA prohibits killing or harming listed species without a permit under section 9164 and bars federal actions that could jeopard-

157 See infra notes 186–211 and accompanying text. 158 Doremus, supra note 25, at 52 (“[T]he ESA seems to have succeeded in implanting, or perhaps reinforcing, a powerful societal norm against human-caused extinctions.”). 159 Benson, supra note 96, at 29. 160 Oliver A. Houck, On the Law of Biodiversity and Ecosystem Mangament, 81 MINN. L. REV. 869, 872 (1997). 161 No formal law provides protection or management for the San Francisco Bay Serpentine ecosystems as a whole. 162 Endangered Species Act of 1973, 16 U.S.C. § 1531. 163 DONALD C. BAUR ET AL., OCEAN AND COASTAL LAW AND POLICY 714 (2d ed. 2015) (“Though its stated purpose is ‘to provide a means whereby the ecosystems upon which endangered . . . and threatened species depend may be conserved,’ the mechanisms of the Act focus on preservation of individual species, subspecies, and even smaller taxonomic units . . . .” (footnote omitted) (quoting 16 U.S.C. § 1531(b))). 164 Section 9 prohibits the take of “any endangered species of fish or wildlife” by “any person subject to the jurisdiction of the United States.” 16 U.S.C. § 1538(a)(1). Take includes “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns.” 50 C.F.R. § 17.3 (2019); see Babbitt v. Sweet Home Chapter of Cmtys. for a Great Or., 515 U.S. 687, 715 (1995) (finding that the Secretary of the Interior’s definition of “harm” within the meaning of the ESA’s definition of “take” was reasonable). Plants are generally excluded from the take prohibition. FWS, ESA BASICS: 40 YEARS OF CONSERVING ENDANGERED

2021] Governing Nature 181 ize the continued existence of a listed species or destroy its essential critical habitat under section 7.165 The Act requires publication of a recovery plan to lay out the actions necessary to recover listed species,166 but the recovery plan is not enforceable and provides little protection beyond sections 7 and 9, especially under current regulatory approaches.167 Administration of the ESA focuses on protecting single species, “the antithesis of ecosystem management,”168 to promote “species recovery, not system recovery.”169 Ideally, the ESA would do at least two things for ecosystems: aid in the recovery of imperiled ecosystems to protect broader groups of imperiled species and require active management of ecosystems as necessary to support listed species. The second category is more germane to this discussion. Tradi- tional views of imperiled species recovery imagine a Bambi-type recovery that addresses extinction drivers and then allows a species to survive without con-

SPECIES 2 (Feb. 2017) [hereinafter ESA BASICS], https://www.fws.gov/endangered/esa-library/pdf/ ESA_basics.pdf [https://perma.cc/2X5R-X43P]. 165 16 U.S.C. § 1536(a)(2). Section 7 limits federal actions, requiring that “[e]ach Federal agency . . . insure that any action authorized, funded, or carried out by such agency . . . is not likely to jeop- ardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat of such species.” Id. Agencies must consult with the relevant expert agency before undertaking any action that “may affect listed species or critical habitat.” 50 C.F.R. § 402.14(a). Section 9 applies to agency actions that fund or permit state or private actions, so the consultation process reaches some non-federal actions that require federal authoriza- tion. 16 U.S.C. § 1536(a)(2). “[T]he Services have quite deliberately attempted to downplay [critical habitat protection] for much of the ESA’s forty-year history.” Daniel J. Rohlf, The Endangered Spe- cies Act at Forty: The Good, the Bad, and the Ugly, 20 ANIMAL L. 251, 270 (2014). 166 16 U.S.C. § 1533(f). 167 See Friends of Blackwater v. Salazar, 691 F.3d 428, 433–34 (D.C. Cir. 2012) (“It does not follow, however, that with each criterion he includes in a recovery plan the Secretary places a further obligation upon the Service. A plan is a statement of intention, not a contract.”). See generally Federi- co Cheever, The Road to Recovery: A New Way of Thinking About the Endangered Species Act, 23 ECOLOGY L.Q. 1, 7 (1996) (arguing that the recovery planning section of the ESA is underemphasized and, if it were given greater attention, “would allow the Act to do more than simply prevent species from going extinct”); Rohlf, supra note 165, at 264 (discussing the FWS’s interpretation of its own recovery plans as mere guidance and arguing that such broad discretion “threatens to provide cover for the agencies to make delisting determinations based on factors other than the best science available”); see also Federico Cheever, Recovery Planning, the Courts and the Endangered Species Act, 16 NAT. RES. & ENV’T 106, 108 (2001) (“The courts . . . have not been receptive to the idea of rendering recovery plans directly enforceable. Courts have been universally unwilling to order agencies to un- dertake recovery actions.”); Jason M. Patlis, Recovery, Conservation, and Survival Under the Endan- gered Species Act: Recovering Species, Conserving Resources, and Saving the Law, 17 PUB. LAND & RES. L. REV. 55, 57 (1996) (“[T]he requirements for recovery and conservation by federal agencies and non-federal entities remain vague and poorly defined.”). 168 Robert B. Keiter, Beyond the Boundary Line: Constructing a Law of Ecosystem Management, 65 U. COLO. L. REV. 293, 309 (1994); see also Houck, supra note 160, at 870 (“[W]e need to manage ecosystems and protect biological diversity on a scale larger than individual species on the brink of doom.”). 169 Palmer & Ruhl, supra note 88, at 516. 182 Boston College Law Review [Vol. 62:155 tinued human support.170 But in our heavily modified landscape, only a few species follow this path to recovery, such as the Aleutian cackling goose or the bald eagle.171 Far more species follow a very different path, a path that requires continuous monitoring and intervention. These species are imperiled because human actions have altered the environmental filters and species interactions in their ecosystems, so maintaining the historic species composition will take ongoing gardening of the ecosystem. We heavily manage the endangered northern spotted owl, the California condor, the black-footed ferret, and many Hawaiian songbirds, just to name a few.172 These species and ecosystems are “conservation reliant,” meaning they are not self-sufficient, but instead require ongoing human help.173 Biologists rate 84% of ESA-listed species as conservation reliant, including 84% of invertebrates, 85% of plants, and 81% of vertebrates.174 The ESA is simply not designed for long-term management of these species. Under any of our projected climate futures, even more species will require ongoing help.175 Most ecosystems face irreversible constraints (e.g., extinctions, introduction of nonnative species that would be difficult or impossible to eradicate, or physical landscape changes) or are constrained by social choices that are unlikely to be reversed (e.g., dams, land use patterns, development, or even “societal preferences for allocation of physical or financial resources”176). Under these conditions, “the Act’s underlying assumption—that once the recovery

170 See generally Holly Doremus, Restoring Endangered Species: The Importance of Being Wild, 23 HARV. ENV’T L. REV. 1, 8 (1999) (discussing the growing movement “to regenerate nature in a form free of human dominance”). 171 Dale D. Goble et al., Conservation-Reliant Species, 62 BIOSCIENCE 869, 869 (2012). The Aleutian cackling goose, for example, recovered quickly after removal introduced foxes that hunted the goose’s nesting grounds. Id. The bald eagle recovered after regulation reduced DDT contamination, which had compromised the strength of the eagle’s eggshells. Endangered and Threatened Wild- life and Plants; Removing the Bald Eagle in the Lower 48 States from the List of Endangered and Threatened Wildlife, 72 Fed. Reg. 37,346, 37,347, 37,367 (July 9, 2007). 172 See Daniel J. Rohlf et al., Conservation-Reliant Species: Toward a Biology-Based Definition, 64 BIOSCIENCE 601, 609 (2014) (“[I]n the absence of humans, species such as the northern spotted owl, the black-footed ferret, and Hawaiian songbirds would actually be in greater peril. Perhaps, these species’ only hope of avoiding extinction lies in human intervention . . . .”). The spotted owl currently requires control, generally lethal, of the barred owl, a competing owl species. Id. 173 Id. at 601. 174 J. Michael Scott et al., Conservation-Reliant Species and the Future of Conservation, 3 CON- SERVATION LETTERS 91, 91, 93 (2010). 175 See generally Camacho, supra note 10, at 171 (explaining “why contemporary natural resource law’s fidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable, particularly in light of climate change”). 176 Simenstad et al., supra note 81, at 35. 2021] Governing Nature 183 goals for a species are met it will no longer require continuing management— is false.”177 This is particularly true in our emerging Wall-E world.178 Nevertheless, through their implementation of the ESA, NMFS and FWS sometimes require funds and actions for habitat protection, which can equate to ecosystem-level work. For example, many permits for actions otherwise barred by the Act generally require mitigation as part of the permitting process.179 The mitigation, termed Habitat Conservation Plans (HCPs) for private parties, commit the parties to protecting or restoring some habitat.180 NMFS and FWS can also incentivize habitat conservation by offering landowners protection from regulation under approaches like the Safe Harbor Policy, which grants regulatory immunity in exchange for active habitat conservation.181 Some state ESAs offer similar programs to incentivize habitat work.182 Together, these programs get the ESA closer to providing ecosystem management. But they have weaknesses: they are expensive, time consuming, and are inevitably tied to permitting, which means they tend to be reactive and not focused on unlisted species or species facing threats in less developed areas.183 The incentive programs tend to be underutilized, particularly in aquatic systems and in cases where private parties are not actively seeking permits to

177 J. Michael Scott et al., supra note 174, at 91. 178 See Robbins, supra note 104, at 79–82 (positing that preservation of our environment in its natural state may no longer be possible, and that “the best alternative goal is resilience . . . the ability to survive change”); see also Benson, supra note 96, at 28 (noting that the ESA needs to be amended to accommodate resilience theory); Wyman, supra note 44, at 491–92 (“[W]e have had considerable difficulty realizing the ESA’s stated goals of halting and reversing species extinction because of our powerful reshaping of the landscape and its ecological, political, and economic consequences.”). 179 See Endangered Species Act of 1973, 16 U.S.C. § 1539(a)(2)(B)(ii) (authorizing issuance of an ESA incidental take permit when “the applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking,” among other requirements). 180 Frampton, supra note 60, at 42. Similarly, for development projects on public lands, the Bu- reau of Land Management often utilizes “[c]ompensatory mitigation—the practice of requiring land users to offset their environmental harms.” Justin R. Pidot, Compensatory Mitigation and Public Lands, 61 B.C. L. REV. 1045, 1046 (2020). 181 Announcement of Final Safe Harbor Policy, 64 Fed. Reg. 32,717 (June 17, 1999). 182 For example, the California ESA offers similar protections allowing permittees to develop a Natural Community Conservation Plan, which is a broader version of the federal HCP in that it includes both listed and unlisted species and provides additional protections for plants. CAL. FISH & GAME CODE § 2801 (2003). 183 See JEFFREY MOUNT ET AL., PUB. POL’Y INST. CAL., A PATH FORWARD FOR CALIFORNIA’S FRESHWATER ECOSYSTEMS 4, 17 (2019), https://www.ppic.org/wp-content/uploads/a-path-forward- for-californias-freshwater-ecosystems.pdf [https://perma.cc/MUG4-NQA4] (noting that “it can take many years to acquire necessary permits” for environmental management plans, which “are difficult to negotiate” and “often focus narrowly on impacts to species listed as threatened or endangered under state and federal endangered species acts”). Further, the plans generally are not “forward-looking, crafting and implementing plans to protect species that are not currently listed but are at risk of listing as climate and other conditions change.” Id. at 17. 184 Boston College Law Review [Vol. 62:155

take listed species or damage their habitats.184 Nevertheless, they offer the best current approach to ecosystem management when those ecosystems include listed species.185

b. Ad Hoc Ecosystem Management in Practice After FWS listed the bay checkerspot butterfly as a threatened species in 1987,186 FWS prepared a recovery plan that aimed to conserve the whole San Francisco Bay Serpentine ecosystem.187 As is typical, very little of the plan has been put into effect and implementation has focused on the butterfly, not the ecosystem or listed plant species.188 Conservationists nevertheless managed to cobble together some management of the San Francisco Bay Serpentine ecosystem, albeit in a very ad hoc manner. A review of the FWS checkerspot critical habitat designation, recovery plan implementation database, safe harbor database, and HCP database indicates that various parties have undertaken ongoing invasive species management and, in some cases, reintroduction of the checkerspot butterfly.189 As expected, these actions are generally mitigation for actions that destroy existing checkerspot habitat or permit conditions for projects that may impact checkerspot habitat. Some of the projects are permanent, with funding in perpetuity, but most are limited to thirty to fifty years.190 The land under management is generally public land or private land with a conservation easement, so the efforts have relied on willing landowners, not necessarily biological needs.191 The HCPs require both public comment and approv- al by the relevant expert agency under the ESA, and the best plans address

184 Id. 185 See infra notes 157–185 and accompanying text. 186 Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for the Bay Checkerspot Butterfly (Euphydryas editha bayensis), 52 Fed. Reg. 35,366 (Sept. 18, 1987). 187 FWS, supra note 138. 188 FWS, RECOVERY PLAN AD HOC REPORT RESULTS, https://ecos.fws.gov/ecp0/reports/ implementation-activity-status-ore-report?documentId=400368&entityId=438 [https://perma.cc/TQ7M- PZPL] (indicating that most recovery actions for Serpentine soil species of the San Francisco Bay area have not yet begun and that those that have begun tend to focus on the butterfly). The butterfly is not listed under the California ESA. STATE OF CAL. ET AL., STATE AND FEDERALLY LISTED ENDAN- GERED AND THREATENED ANIMALS OF CALIFORNIA 2–4 (Nov. 10, 2020), https://nrm.dfg.ca.gov/ FileHandler.ashx?DocumentID=109405&inline [https://perma.cc/23RP-54AG]. 189 All of these sources are available on FWS’s Environmental Conservation Online System, at https://ecos.fws.gov/ecp/species/2320 [https://perma.cc/CTY7-WTAY?type=image]. For an overview of the HCP program, see Alejandro E. Camacho et al., Lessons from Areawide, Multiagency Habitat Conservation Plans in California, 46 ENV’T L. REP. 10222, 10235 (2016). 190 Camacho et al., supra note 189, at 10229. 191 FWS’s Environmental Conservation Online System, https://ecos.fws.gov/ecp0/reports/ implementation-activity-status-ore-report?documentId=400368&entityId=438 [https://perma.cc/YE8H- QSDG], provides HCP plan summaries with detailed information on land ownership. 2021] Governing Nature 185

multiple species within the ecosystem.192 For example, the Santa Clara Valley Habitat Conservation Plan (a combined HCP/National Community Conserva- tion Plan) covers the checkerspot butterfly, along with seventeen other species in Santa Clara County, although not all species are part of the Serpentine ecosystem.193 The plan pools resources for several permittees (i.e., Santa Clara County, the Santa Clara Valley Water District, the Santa Clara Valley Transpor- tation Authority, Gilroy, Morgan Hill, and San Jose) which increases both the area and the financial resources dedicated to habitat under the plan.194 Similar, albeit more limited approaches can be found in other permittees’ narrow HCPs195 or safe harbor agreements in the area.196 As in other cases, this ad hoc approach leads to patchy mitigation measures and habitat fragmentation, missing the potential synergies of “a comprehensive planning process consisting of diverse interests.”197 Moreover, funding is tenuous and tied to parties’ continuing need for additional mitigation credits for other development projects.198 In the case of the San Francisco Bay Serpentine ecosystem, funding comes from the sources listed above, as well as Waste Management Inc., Pacific Gas and Electric, several other cities, a golf course, the Bureau of Reclamation (Reclamation), and myriad other entities.199

3. Strengths and Weaknesses of the Serpentine Soil Ecosystem Management Framework The ESA is “necessary but not sufficient to protect biodiversity.”200 For the bay checkerspot, most of the conservation work is motivated and overseen by Dr. Stuart Weiss, who runs the nonprofit consulting organization Creekside

192 FWS & NMFS, HABITAT CONSERVATION PLANNING AND INCIDENTAL TAKE PERMIT PRO- CESSING HANDBOOK 13-9 (Dec. 21, 2016), https://www.fws.gov/endangered/esa-library/pdf/HCP_ Handbook.pdf [https://perma.cc/26CX-MKHK]. 193 SANTA CLARA VALLEY HABITAT AGENCY, EXECUTIVE SUMMARY, at ES-3, ES-4 (Aug. 2012), https://www.scv-habitatagency.org/DocumentCenter/View/137/Executive-Summary [https:// perma.cc/K9CH-V3AJ]. 194 Id. at ES-1. 195 See, e.g., LOW-EFFECT HABITAT CONSERVATION PLAN FOR THE BAY CHECKERSPOT BUT- TERFLY, SANTA CLARA VALLEY DUDLEYA, AND SERPENTINE GRASSLAND (Oct. 29, 2008), https:// ecos.fws.gov/docs/plan_documents/thcp/thcp_874.pdf [https://perma.cc/E47G-UTS6]. 196 See, e.g., SAFE HARBOR AGREEMENT BETWEEN PACIFIC GAS AND ELECTRIC AND THE U.S. FISH AND WILDLIFE SERVICE FOR SERPENTINE ENDEMIC SPECIES LOCATED ON TULARE HILL IN SANTA CLARA COUNTY, CALIFORNIA (2008), https://ecos.fws.gov/docs/plan_documents/tsha/tsha_ 603.pdf [https://perma.cc/H85R-44H3]. 197 Camacho et al., supra note 189, at 10231. 198 Id. at 10235–36. 199 See CASCADIA PRAIRIE OAK P’SHIP, WEISS INSTITUTIONAL LANDSCAPE FOR BAY CHECK- ERSPOT (Feb. 12, 2014), https://cascadiaprairieoak.org/wp-content/uploads/2014/02/Weiss-Institutional- Landscape-for-Bay-checkerspot.pdf [https://perma.cc/LP97-ZXJK]. 200 Rohlf, supra note 165, at 274. 186 Boston College Law Review [Vol. 62:155

Center for Earth Observation.201 Dr. Weiss has a long career studying the checkerspot, and his passion for the species and ability to motivate volunteers makes him a strong leader on these projects. Dr. Weiss has used the ESA and its mitigation requirements to assemble ecosystem-level protections for Cali- fornia Serpentine, albeit only in places that serve as bay checkerspot habitat. He leads most of the efforts around managing grazing and other ongoing management to protect the species, and he has assembled the patchwork funding noted above.202 The ability to leverage mitigation funding into longer term protection has benefited the butterflies, but this is not inherent in the ESA; ecosystem management is not an emergent property of ESA regulation, but good coordination under strong leadership can make it happen. This same pattern has played out in a number of other reconciliation projects,203 which can be a strength of the ESA. Its substantive requirements and mandate for species protection creates leverage for advocates to protect species and, sometimes, ecosystems. Conversely, relying on leaders to emerge and cobble together some kind of franken-management is a poor substitute for actually requiring ecosystem management. In this case, current interpretations of the ESA do not require any active management of checkerspot habitat.204 Because the San Francisco Bay Serpentine ecosystem will disappear absent active management, the ESA provides little protection and does not offer a framework for comprehensive ecosystem management beyond simply protecting the butterfly from active harm.205 Through neglect, the checkerspot could go extinct even if no one vio- lated the ESA, as currently written. The ESA may be pressed into service to provide some ecosystem protection, but its current administration is ill suited to ecosystem-level management.206

201 About, CREEKSIDE CTR. FOR EARTH OBSERVATION, https://creeksidescience.com/ [https:// perma.cc/FAN4-M3Q3]. 202 Bay Checkerspot Butterfly Conservation, CREEKSIDE CTR. FOR EARTH OBSERVATION, https:// creeksidescience.com/projects/bay-checkerspot-butterfly-conservation/ [https://perma.cc/Y2WC- NL28]. 203 See MOUNT ET AL., supra note 183, at 18 (listing a number of laws and regulatory plans that have made progress through ecosystem-based management efforts). 204 See supra notes 162–169 and accompanying text. 205 See Tzankova et al., supra note 137, at 434–35 (noting that “atmospheric nitrogen deposition . . . [is] likely [a] major cause of ongoing habitat degradation and of the [bay checkerspot butterfly’s] continued struggle,” and questioning “whether the ESA is capable of protecting the checkerspot and its serpentine grassland habitat” from this threat). 206 This case study is not unique, even among butterflies. See Travis Longcore & Kendall H. Osborne, Butterflies Are Not Grizzly Bears: Lepidoptera Conservation in Practice, in BUTTER- FLY CONSERVATION IN NORTH AMERICA 161, 182 (Jaret C. Daniels ed., 2015) (“[H]uman- created disturbances or intentional and directed use of natural disturbances will be necessary to maintain habitat for many endangered butterflies.”). 2021] Governing Nature 187

Moreover, in some cases current ESA implementation can serve as a barrier to reconciliation actions, either because permits for reconciliation efforts for one species are too difficult to get,207 or because management for one species may impact another listed species.208 In some ways, Dr. Weiss is fortunate in this aspect. Although the San Francisco Bay Serpentine ecosystem hosts a variety of federally listed species, all but the checkerspot are plants, and the ESA bar on killing and harming listed species does not apply to plants.209 Thus, management actions to benefit the butterfly that might affect listed plant species, including actions like grazing, burning, or mechanical dethatching, do not have to contend with the same ESA regulatory requirements as actions im- pacting listed animal species. This makes management much easier in these areas. Beyond the ESA issues, bay checkerspot management highlights the need to consider bigger questions. We have made one decision, through the ESA: this species should be protected from take and additional habitat destruction. But that leaves significant remaining questions. Climate change and continued nitrogen deposition pose significant risks to the butterfly’s future existence. For example, scientists suggest that grazing efforts alone may not be able to alleviate the impacts of excessive nitrogen.210 Coming changes in temperature, seasonality, and precipitation may mean the San Francisco Bay Serpentine ecosystem is no longer viable without additional work, such as watering, more weeding, planting, in essence more gardening of the native plants. Is this the right outcome for the ecosystem? Is society willing to make that kind of investment? If not, should we try to move some of these species into other Serpen- tine areas, perhaps farther north? If so, which species? Where? Although some of

207 See, e.g., JIM ROBINS ET AL., CAL. LANDSCAPE STEWARDSHIP NETWORK, SHIFTING THE REGU- LATORY PARADIGM TOWARD BOLD IMMEDIATE ACTION FOR A RESILIENT CALIFORNIA 4 (2019), http://www.sanmateorcd.org/wp-content/uploads/2019/04/FINAL-shifting-the-paradigm-white-paper_ 2019_03_01-clean-1.pdf [https://perma.cc/9UQN-T57Z] (finding that “our current regulatory framework poses significant barriers to natural resource management due to the complexities of overlapping state and federal regulations and laws, lack of cross-jurisdictional and multi-agency collaboration, unclear requirements, and lack of a common understanding of risks and benefits associated with implementation of various types of actions”). 208 ELLEN HANAK ET AL., PUB. POL’Y INST. CAL., MANAGING CALIFORNIA’S WATER: FROM CONFLICT TO RECONCILIATION 242 (2011), https://www.ppic.org/content/pubs/report/R_211EHR.pdf [https://perma.cc/QGD8-7VJG] (“Because these laws focus on preserving individual species on the brink of extinction, this sometimes leads to conflicts with efforts to manage other species. These conflicts have played out in the biological opinions covering coho salmon and two species of suckerfish in the Klamath Basin and are the focus of considerable attention and litigation within the Delta.” (citations omitted)). 209 ESA Basics, supra note 164. 210 Pasari et al., supra note 134, at 698. 188 Boston College Law Review [Vol. 62:155 these questions could be addressed through more aggressive interpretation of the ESA, many simply fall beyond the scope of current environmental law.211

B. Cheyenne Bottoms—Rewatering the Largest Wetland in the Interior United States Shifting from the bay checkerspot’s terrestrial ecosystem to a semi- aquatic one, we move to the wetlands of the Great Plains.212 The Cheyenne Bottoms Wildlife Area (CBWA) occupies seventy square miles in a natural depression in central Kansas.213 Over forty percent of North American migrating birds stop at CBWA every year,214 making it one of “the most important shorebird staging site[s] in the lower 48 states.”215 CBWA hosts at least 340 bird species, including the ESA-listed whooping crane, piping plover, and least tern.216 In 1988, the Ramsar Convention on Wetlands designated Cheyenne Bottoms a “Wetland of International Importance.”217 Historically, Cheyenne Bottoms was frequently dry, likely more often than not.218 Although the area gets an average of roughly twenty-five inches of rain per year,219 the precipitation is highly variable, both regionally and from year to year.220 When the Bottoms dried up, however, natural variation in precipitation generally ensured that other wetlands in the region were wet enough to provide habitat for the migrating birds.221 Over a large area, the wetlands

211 See infra notes 400–421 and accompanying text. 212 See infra notes 213–278 and accompanying text. 213 John C. Peck, The Cheyenne Bottoms: A Case Study of Water Conflicts in the 1990’s, at 8 AGRIC. L. UPDATE 4, 4 (1991). 214 Lida Owens et al., Remote Sensing Half-Century Record of Environmental Changes at Chey- enne Bottoms, Kansas, 47 EMPORIA STATE RSCH. STUD. 1, 1 (2011). 215 S.R. Ramireddygari et al., Development and Application of a Comprehensive Simulation Model to Evaluate Impacts of Watershed Structures and Irrigation Water Use on Streamflow and Groundwater: The Case of Wet Walnut Creek Watershed, Kansas, USA, 236 J. HYDROLOGY 223, 224 (2000). 216 James S. Aber et al., Rapid Environmental Changes in the Nature Conservancy Wetland at Cheyenne Bottoms, Kansas: A Review 2002–2015, 119 TRANSACTIONS KAN. ACAD. SCI. 33, 33 (2016). 217 Richard M. Kostecke et al., Macroinvertebrate Response to Cattail Management at Cheyenne Bottoms, Kansas, USA, 25 WETLANDS 758, 758 (2005). 218 KAN. DEP’T WILDLIFE, PARKS AND TOURISM, CHEYENNE BOTTOMS WILDLIFE AREA: 2010– 2014 MANAGEMENT PLAN 8 (2010) [hereinafter MANAGEMENT PLAN] (citing estimates that the Bot- toms would go dry two out of every five or six years); Douglas S. Harvey, Creating a “Sea of Gali- lee”: The Rescue of Cheyenne Bottoms Wildlife Area, 1927–1930, 24 KAN. HIST. 2, 4 (2001) (citing estimate that the Bottoms were “dry or nearly so two out of [every] three years”); Owens et al., supra note 214, at 1 (“Over the long term, the region has a net water deficit, and the bottoms is dry more often than wet.”). 219 Peck, supra note 213, at 4. 220 Owens et al., supra note 214, at 1. 221 See Harvey, supra note 218, at 4 (“[E]ven when it dried up, the fickle weather patterns of the region deposited rain somewhere, and those wetlands and streams would be available for the migrants.

2021] Governing Nature 189 exhibited a kind of dynamic equilibrium, where, based on sheer number and climatic variability, enough “wet wetlands” were available, even as the particular wetlands with water shifted frequently.222 But many of these other wetlands have since been drained and filled as part of a broad effort over most of the nineteenth and twentieth centuries to remove wetlands and convert them to croplands.223 Eliminating the wetlands changed the environmental filters in the Great Plains ecosystem. Survival of migrating birds now depends on good habitat conditions every year at the few remaining wetlands.224 These relatively seasonal and ephemeral wetlands are managed to make them permanent, in order to protect migrating birds.225 Making CBWA a permanent wetland requires consistent water supplies.226 The Kansas Fish and Game Commission secured rights to forty thousand to fifty thousand acre feet of surface water for the wetland in the 1940s and 1950s,227 and huge growth in regional water use has forced the Commis- sion to curtail other uses to protect the water destined for Cheyenne Bot- toms.228 But having sufficient water is not enough—it must be the right amount of water at the right time to support the desired outcomes for the ecosystem:

Today most of these wetlands have been drained for crop production, and it only has been through the diligent efforts of conservationists and environmentalists that Cheyenne Bottoms remains a viable stopover for migratory birds.”). 222 Id. 223 THOMAS E. DAHL, U.S. FWS, WETLANDS LOSSES IN THE UNITED STATES 1780’S TO 1980’S, at 2 (1990), https://www.fws.gov/wetlands/documents/Wetlands-Losses-in-the-United-States-1780s- to-1980s.pdf [https://perma.cc/W3PG-3KM2]. Kansas lost 48% of its wetlands from 1780 to 1980, and neighboring states Oklahoma (67%) and Missouri (87%) followed suit. Id. at 6. 224 See JOAN F. KENNY, U.S. GEOLOGICAL SURV. WATER-SUPPLY PAPER 2425, KANSAS: WET- LAND RESOURCES 195, 197 (1996), https://www.fws.gov/wetlands/data/Water-Summary-Reports/ National-Water-Summary-Wetland-Resources-Kansas.pdf [https://perma.cc/PN6F-2LVA] (noting that the disappearance of other wetlands and streamflows “have left only Cheyenne Bottoms and Quivira National Wildlife Refuge as major stopover places in Kansas,” and that “[k]eeping those areas viable requires manipulation of the hydrologic system to ensure a consistent water supply”). 225 Id. 226 Id. 227 John C. Peck, Property Rights in Groundwater—Some Lessons from the Kansas Experience, KAN. J.L. & PUB. POL’Y 493, 499–500 (2003); Peck, supra note 213, at 4. It secured 19,175 acre feet per year of surface water from Walnut Creek in 1948, and then another appropriative water right to 18,185 acre feet per year of surface water from the Arkansas River in 1954. Peck, supra, at 514. 228 Peck, supra note 227, at 499–500. With over seven hundred permits for water rights in the Walnut Creek Basin, the area west of Cheyenne Bottoms, CBWA “was unable to satisfy its rights to water from Walnut Creek during times of drought.” Id. at 499. Consequently, the Division of Water Resources administered an order that “reduced the annual pumping of all other water rights . . . to achieve safe yield in the basin.” Id. 190 Boston College Law Review [Vol. 62:155

abundant food and habitat for migrating birds.229 In the CBWA, ensuring these outcomes requires dams, levees, canals, dikes, gates, pools, high-capacity pumps, and other water control structures.230 Management of the wetlands follows a detailed annual plan.231 Dikes divide the CBWA into four large pools grouped around a center storage pool, which stores the incoming water from the diversions.232 In the spring, managers dewater two or more perimeter pools to provide mud flat and shallow water habitat for spring migrating shorebirds and allow for the germination of moist soil vegetation that will create feed for fall-migrating shore birds.233 Japanese millet is often aerially seeded or “drilled” into mudflats to supplement natural waterfowl forage.234 During the summer, the dewatered pools may be reflood- ed to remove undesirable vegetation and to water the millet, while the watered perimeter pools are held at a depth of sixteen to eighteen inches to control plant growth, to provide nesting and rearing habitat for summer waterfowl, to allow growth of invertebrates for waterfowl consumption, and to provide nesting and foraging areas for wading birds.235 In the fall, managers reflood any remaining dewatered pools, attempting to maintain all four of the pools at dif- fering depths to improve habitat for a variety of birds.236 Without water management, CBWA would continue to exhibit its intermittent pattern of filling and drying up, leaving migrating birds without their required stopover habitat.237 With water management, it’s a bird paradise.238 Undesirable plant species complicate the management regime. Cattails, for example, tend to grow too densely in shallow water habitats, making them

229 MANAGEMENT PLAN, supra note 218, at 3. Waterfowl and shorebirds need Cheyenne Bottoms because of the rich food supply it offers—a combination of plant sources (grain, generally) and wetland macroinvertebrates, which allows them to refuel on their migrations. Id. at 19, 20, 22. 230 Owens et al., supra note 214, at 1. 231 MANAGEMENT PLAN, supra note 218, at 3. Water is diverted to Cheyenne Bottoms whenever there is available surface flow. Id. at 9. 232 Id. at 5, 9. 233 Id. at 9. 234 Id. at 16–17. 235 Id. at 10. 236 Id. 237 Aber et al., supra note 216, at 33. Indeed, just to the north of the CBWA, the Nature Conserv- ancy (TNC) owns land that makes up part of the historic Cheyenne Bottoms wetland, and TNC does not practice large scale water manipulation to keep the area wet. Id. at 33, 35. Instead, TNC has recre- ated historic conditions, to a limited degree, by removing barriers to water flow and allowing the natural drought cycle to influence the property. Id. at 36. The TNC managers note that conditions in the wetland swing back and forth rapidly: “The transformation from drought to flood conditions may take place quite abruptly. Wetland vegetation responds rapidly, invertebrate wildlife begins to recover quickly, and migrating shorebirds and waterfowl return.” Id. at 33. 238 Except for the hunting, which is allowed on some portions of CBWA and adjacent areas. Id. at 35. 2021] Governing Nature 191

unattractive for many migrating shorebirds and waterfowl,239 and so managers attempt to reduce the spread of cattails by drying one to two pools per year240 and then burning, mowing, disking, or grazing the pools.241 Management of undesirable plants is labor intensive and never-ending; absent ongoing efforts, these species would ruin the wetland for migrating birds. For Cheyenne Bottoms, true restoration, to unmanaged and self- sustaining historic conditions, is impossible and, from the local community’s perspective, undesirable because it would result in an intermittent wetland, reducing tourism and hunting visitation in dry years. In light of the changing ecology, land use, climate, and social views, Cheyenne Bottoms will require management in perpetuity to keep migratory birds alive. Some have noted the parallels between management of CBWA and traditional agriculture in Kansas. CBWA amounts to “quasi-agriculture.”242 Chey- enne Bottoms undergoes intense management to produce birds, and the management is generally paid for by hunters who harvest some of the birds, albeit with significant positive externalities.243 Nevertheless, CBWA is a vital ecosystem in Kansas and makes up an essential stop on the migration routes of myriad bird species.244 “In a state that is 98 percent private property, . . . Cheyenne Bottoms, a manufactured environment though it is, provides a haven for wildlife in the heart of the country’s otherwise mono-cropped, homogenous ‘bread- basket.’”245

1. Reconciling Cheyenne Bottoms Cheyenne Bottoms is a reconciled ecosystem.246 Rather than rebuilding half a state’s worth of wetlands to provide the habitat that migrating birds require, Kansas officials have focused on improving remaining wetland habitat within the mosaic of western Kansas agricultural land. Intense management of water, land, and plants enables Cheyenne Bottoms to serve the migratory bird populations. Cheyenne Bottoms certainly differs from the historic wetland, both in terms of plant species present and in its hydrology, but restoring an ephemeral wetland and native species, although more historically accurate,

239 Id. at 37. 240 MANAGEMENT PLAN, supra note 218, at 13. 241 Owens et al., supra note 214, at 1. 242 Harvey, supra note 218, at 2, 5. 243 Id. at 6. In drafting legislation to protect the Cheyenne Bottoms, tension existed between hunting groups who wanted the area to be a public shooting ground and conservationists who wanted to create a migratory bird refuge. Id. at 9–10. 244 See supra notes 214–215 and accompanying text. 245 Harvey, supra note 218, at 4. 246 See supra notes 212–245 and accompanying text. 192 Boston College Law Review [Vol. 62:155 would support far fewer migratory birds. By embracing heavy management, CBWA illustrates a kind of success in our Wall-E world.247

2. Management Under a Focused State Policy The CBWA presents a nearly ideal situation for successful ecosystem management.248 Part of the early trend toward conservation by hunting and fishing organizations,249 an amalgam of game-protection organizations, conservation groups, local chambers of commerce, and Kansas officials drove initial efforts to protect Cheyenne Bottoms in the face of an agriculture-led effort to drain the wetland.250 Kansas began seeking funds to buy land and permanent water in the late 1920s251 and started purchasing land to establish CBWA in 1942, using federal money from the 1937 Pittman-Robertson Act.252 The Pittman-Robertson Act provides federal funds for state conservation projects through a tax on guns and ammunition, imposed largely by the hunting community on itself.253 CBWA is presently located entirely on state land and has a dedicated water right.254 These origins created a cohesive goal for ecosystem management: habitat for birds. The wetlands still enjoy strong support from most active environmental groups in Kansas, including the Kansas Wildlife Federation, Kansas Audubon Council, and the Sierra Club-Kansas Chapter.255 CBWA also enjoys federal support: FWS pushed the state to protect the water rights for CBWA,256 and Recla-

247 See supra notes 212–245 and accompanying text. 248 See supra notes 212–245 and accompanying text. 249 See John F. Organ et al., Born in the Hands of Hunters: The North American Model of Wildlife Conservation, 4 WILDLIFE PRO. 22, 24 (2010) (discussing the conservation efforts of hunting clubs in the nineteenth and early twentieth centuries). 250 Harvey, supra note 218, at 5. 251 MANAGEMENT PLAN, supra note 218, at 4; Peck, supra note 213, at 4. Federal laws authorized the Secretary of the Interior to acquire land for a Cheyenne Bottoms Migratory Bird Refuge, but the Secretary never did so. See 16 U.S.C. § 691a (establishing Cheyenne Bottoms Migratory Bird Ref- uge); see also id. § 691 (providing the location and acquisition of the land). 252 Federal Aid in Wildlife Restoration Act of 1937, 16 U.S.C. §§ 669–669i; KAN. FORESTRY, FISH AND GAME COMM’N, TENTH BIENNIAL REPORT 31 (1944), https://kgi.contentdm.oclc.org/ digital/collection/p16884coll113/id/0/ [https://perma.cc/R2LS-C4CR]. For a detailed history, see Harvey, supra note 218, at 3. The Pittman-Robertson Act of 1937 also is known as the Federal Aid for Wildlife Restoration Act of 1937. FWS, RESTORING AMERICA’S WILDLIFE 1937–1987: THE FIRST 50 YEARS OF THE FEDERAL AID IN WILDLIFE RESTORATION (PITTMAN-ROBERTSON) ACT 4 (Harmon Kallman ed., 1987). 253 FWS, supra note 252. 254 See supra note 227 and accompanying text; infra note 259 and accompanying text. 255 MANAGEMENT PLAN, supra note 218, at 5–6. Other supporters include Kansas Nongame Ad- visory Council, Kansas Natural Resources Council, Ducks Unlimited-Kansas Chapter, The Wildlife Society-Kansas Chapter, American Fisheries Society-Kansas Chapter, and the Kansas Ornithological Society. Id. 256 Peck, supra note 213, at 5. 2021] Governing Nature 193

mation funds some of the ongoing habitat work in the Bottoms.257 Throughout its history, CBWA has avoided most of the controversy that often plagues restoration projects in large part due to broad agreement about its purpose. At present, Cheyenne Bottoms continues its singular focus on providing “diverse marsh habitat for waterfowl and shorebirds during their migratory periods. Two secondary goals are to provide the public recreational opportunities . . . and to increase production of waterfowl and shorebirds that nest on the area.”258 The Kansas Department of Wildlife and Parks oversees management of CBWA and periodically develops a five-year management plan with public input.259 CBWA also uses public meetings and a nine-member Advisory Panel with representatives of agriculture, conservation, and recreation groups to provide input on the plan.260 Of note, CBWA does not appear to have been envel- oped in major litigation or other environmental disputes in the modern era, beyond the water rights proceeding mentioned above.261 This is unusual, but it may be explained by the broad social and political support for the Bottoms, the way regional economic and ecosystem needs align, the presence of very few threatened or endangered species in the Bottoms, and the long history of success in managing the Bottoms.262

3. Strengths and Weaknesses of the Cheyenne Bottoms Management Framework The Cheyenne Bottoms success story highlights the power of clear, shared goals in successful ecosystem management.263 By focusing explicitly on one goal, managers at Cheyenne Bottoms are able to bring both science and resources to bear in pursuit of their goal. In some ways, Cheyenne Bottoms’s success stands apart from modern environmental law. The standard federal and state environmental laws play little role in its continued function as a wetland habitat for millions of birds; after it was established with the Pittman-Robertson

257 MANAGEMENT PLAN, supra note 218, at 7, 9. 258 Id. at 3. 259 Cheyenne Bottoms Five-Year Plan Open for Review, KAN. DEP’T OF WILDLIFE, PARKS & TOURISM (Mar. 4, 2010), https://ksoutdoors.com/KDWPT-Info/News/News-Archive/2010-Weekly- News/3-4-10/CHEYENNE-BOTTOMS-FIVE-YEAR-PLAN-OPEN-FOR-REVIEW [https://perma. cc/FF4T-ACTN]. The separate property owned by TNC is privately managed and sets its own priorities, although their goals deliberately complement the CBWA objectives. STEVEN LEWIS YAFFEE ET AL., ECOSYSTEM MANAGEMENT IN THE UNITED STATES: AN ASSESSMENT OF CURRENT EXPERIENCE 115–16 (1996). Of the forty-one thousand acres in the historic wetland basin, CBWA owns twenty thousand acres, TNC owns seven thousand, and other private parties own fourteen thousand acres. Id. at 115. 260 Id. at 116. 261 See supra notes 227–228 and accompanying text. 262 See supra notes 212–245 and accompanying text. 263 See supra notes 212–245 and accompanying text. 194 Boston College Law Review [Vol. 62:155

Act funds, it largely has avoided controversy and still enjoys broad public support, outside of a fight over its water supply. The story of Cheyenne Bottoms is marked by a shared vision, backed by federal and state funding sufficient to accomplish that vision, with dedicated managers hired to put it into practice. Agreement on a clear goal among the federal, state, and local stakeholders, coupled with a willingness to work within the constraints of a heavily modified landscape, has enabled a win-win solution for both birds and people. Another strength lies in CBWA’s dedicated water right.264 CBWA’s fight for water provides a remarkable story of foresight and dedication to the rule of law. After the Kansas Fish and Game Commission secured rights to the fifty thousand acre feet of water in the 1940s and 1950s from Walnut Creek and the Arkansas River,265 “irrigators and other users obtained more than [seven hundred] permits for water rights from both alluvial groundwater and surface water in the Walnut Creek Basin . . . .”266 Between 1960 and 1996, increases in center-pivot irrigation in western Kansas reduced surface flows on the major drainages feeding Cheyenne Bottoms by 85% to 90%.267 By the late 1980s, the Kansas Department of Wildlife and Parks (KDWP, heir to the Fish and Game Commission) could not get the water it needed to fill CBWA and began legal proceedings to secure their water. 268 In 1992, after two years of acrimonious public hearings, the Division of Water Resources (DWR) of the Kansas De- partment of Agriculture designated the area an Intensive Groundwater Use Control Area in 1992 and closed the area to new appropriations of surface water and groundwater that same year.269 DWR left KDWP with their full allocation of water, but cut senior irrigation rights holders’ water use by 22% to 33%, junior irrigation rights holder’s water use by 64% to 71%, and even cut some municipal and other rights.270 KDWP, pushed by its stakeholders, stood up for CBWA’s water needs in spite of the impact on local agricultural interests. The historic Fish and Game Commission’s foresight, coupled with DWR’s willingness to honor their senior water rights and KDWP’s willingness to fight for them, saved Cheyenne Bottoms. Dedicated water rights and an institution willing to fight for the ecosystem are significant management strengths for CBWA. As with the bay checkerspot butterflies, in spite of this storied past and present success, CBWA faces an uncertain future, exposing a weakness in its

264 Cf. JEFFREY MOUNT ET AL., PUB. POL’Y INST. CAL., MANAGING CALIFORNIA’S FRESHWATER ECOSYSTEMS: LESSONS FROM THE 2012–2016 DROUGHT (2017), https://www.ppic.org/wp-content/ uploads/r_1117jmr.pdf [https://perma.cc/TA3P-ERLL]. 265 Peck, supra note 227, at 499–500; Peck, supra note 213, at 4. 266 Peck, supra note 227, at 499. 267 YAFFEE ET AL., supra note 259, at 115. 268 Peck, supra note 227, at 499. 269 Ramireddygari et al., supra note 215, at 226. 270 Peck, supra note 227, at 499. 2021] Governing Nature 195

current management. Despite the engineering apparatus designed to manage water levels in the Bottoms, and in spite of the water rights that protect CBWA’s water, variations in regional precipitation sometimes overwhelm management capacity. CBWA has a long history of precipitation variability;271 pollen studies covering tens of thousands of years reveal significant long-term changes in water levels in the area, and more detailed data on the last several thousand years “suggests that . . . basin-wide drying ha[s] occurred frequently.”272 CBWA dried out completely in 2006, and one year later it flooded completely.273 The 2007 floods took over a year to recede, preventing normal management of pool levels, and “near-normal” conditions did not return until 2009.274 Flows on Walnut Creek, a stream near CBWA, vary widely from year to year, often changing by two orders of magnitude over a five-year span.275 Climate change is increasing the frequency of all kinds of extreme events, both droughts and floods, in the Midwestern United States,276 so maintaining water in CBWA will only get more difficult in the next few decades. Any increase in irrigation in coming years will have a direct negative impact on CBWA’s ability to secure water.277 Trying to hold on to perfect conditions in this specific place, in spite of increasing variation, will be tremendously difficult. Although addressing this problem may at first seem to come down to protecting water supplies for Cheyenne Bottoms while improving engineering approaches to water management, long-term solutions likely will require a different approach that may lie outside the boundaries of CBWA. Long-term protection of migration bird populations may require restoration and intense management of more historic wetlands throughout the Midwest and, once again, we lack a governance framework that considers ecosystem management in that kind of holistic way. 278

C. The American River—Urban Salmonids on a Dammed River The final case study moves from the semi-aquatic to a fully aquatic ecosystem.279 Humans have altered virtually every major river in the continental United States, which boasts between seventy-seven thousand and eighty thou-

271 Owens et al., supra note 214, at 1. 272 Glen G. Fredlund, Late Quaternary Pollen Record from Cheyenne Bottoms, Kansas, 43 QUA- TERNARY RSCH. 67, 78 (1995). 273 Owens et al., supra note 214, at 3. 274 Id. 275 Ramireddygari et al., supra note 215, at 237 fig.9(a). 276 SARA C. PRYOR ET AL., Chapter 18: Midwest, in CLIMATE CHANGE IMPACTS IN THE UNITED STATES: THE THIRD NATIONAL CLIMATE ASSESSMENT 418, 419 (Jerry M. Melillo et al. eds., 2014). 277 Ramireddygari et al., supra note 215, at 244–45. 278 See supra notes 271–277 and accompanying text. 279 See infra notes 280–376 and accompanying text. 196 Boston College Law Review [Vol. 62:155 sand large dams and an estimated 2.5 million smaller dams.280 Less than 2% of America’s streams remained free of development in 1982, giving society some control over 85% of the U.S. inland water surface area.281 Add in levees, canals, and other water infrastructure, plus surface water and groundwater with- drawals, along with the resulting changes to the water cycle, the nutrient cycles, and the rock cycle, and we have transformed our aquatic ecosystems on a fundamental level.282 The rivers of California’s Central Valley owe their character to their cold, clean headwaters high in the mountains, to the mishmash of rocks found throughout the Sierra foothills, to the deep sediments in the Central Valley, to the nearly annual flood and drought cycles typical of a Mediterranean climate, to the annual influx of nutrients from the steelhead and Salmon runs, to the catastrophic fires and landslides typical of California . . . the list goes on.283 Altering these traits, as we must to make California livable, alters the environmental filters, with predictable species declines. So is the case with Cali- fornia’s American River. The American is an urban river,284 flowing a short twenty-eight miles285 from Nimbus Dam, through the city of Sacramento, to the confluence with the

280 Daniel McCool, The River Commons: A New Era in U.S. Water Policy, 83 TEX. L. REV. 1903, 1904–05, 1908 (2005). McCool highlights the Yellowstone River as the lone unmodified system, but other accounts include the John Day River in Oregon, the Salmon River in Idaho, and the Yampa River in Colorado, among others. Id. at 1908; see The Best Dam-Free Stretches of River in the West, OARS, https://www.oars.com/blog/best-dam-free-rivers-west/#:~:text=1)%20Yellowstone%20River% 2C%20Montana,Missouri%20near%20Williston%2C%20North%20Dakota [https://perma.cc/7XAA- MXJR]. 281 McCool, supra note 280, at 1908. 282 See generally Charles J. Vörösmarty et al., Anthropogenic Sediment Retention: Major Global Impact from Registered River Impoundments, 39 GLOB. & PLANETARY CHANGE 169, 170 (2003) (demonstrating that “hydraulic engineering” has significant long-term impacts); Sarah M. Yarnell et al., Functional Flows in Modified Riverscapes: Hydrographs, Habitats and Opportunities, 65 BIO- SCIENCE 963, 970 (2015) (discussing the “flow management of regulated rivers” and the different impacts that river modification has had on the environment). 283 See generally Robin L. Vannote et al., The River Continuum Concept, 37 CANADIAN J. FISH- ERIES & AQUATIC SCIS. 130, 130 (1980) (providing an overview of the way rivers relate to their physical settings). 284 John G. Williams, Chinook Salmon in the Lower American River, California’s Largest Urban Stream, 179(2) FISH BULL. 1, 1 (2001). The American River Parkway buffers the river from the city, but the river is an integral part of Sacramento’s identity. See SACRAMENTO CNTY. REG’L PARKS, AMERICAN RIVER PARKWAY FACT SHEET: UPDATED 2009, at 1, 2 (2009), https://regionalparks. saccounty.net/Documents/American%20River%20Parkway%20Fact%20Sheet_REV%202009.pdf [https://perma.cc/7CQ3-GT2Z]. The parkway supports eight million visitors per year, generating an estimated $364,218,973 annually. Id. at 2. 285 Ronald M. Yoshiyama et al., Historical and Present Distribution of Chinook Salmon in the Central Valley Drainage of California, 179(1) FISH BULL. 71, 157 (2001). 2021] Governing Nature 197

Sacramento River.286 Upstream of Nimbus Dam, much of the river’s annual runoff is stored behind Folsom Dam and at least thirty-eight smaller dams.287 These dams fundamentally alter the character of the river, but also make modern life in the region possible by supplying hydropower, water, and, perhaps most importantly, flood control.288 Extracting these benefits imposed a heavy price on the river’s ecosystem, particularly the watershed’s trout and salmon. The American River watershed once offered at least 161 miles of prime salmonid spawning habitat, 289 supporting robust runs of steelhead and two or three genetically distinct populations of Chinook salmon—the spring, fall, and possibly late fall Chinook salmon runs.290 The dams cost steelhead and salmon access to over eighty percent of their historic habitat,291 killing off the river’s late fall and spring-run Chinook salmon and most steelhead in the 1950s.292 The water infrastructure would, without ongoing mitigation, lead to the extinction of the native below- dam fish populations.293 But, due to active management, the twenty-three-mile below-dam remnant of the river is still productive; the river, coupled with hatchery production, accounts for one-third to one-fourth of northern Califor-

286 SACRAMENTO WATER F., LOWER AMERICAN RIVER FLOW MANAGEMENT STANDARD 1 (2006) [hereinafter SACRAMENTO WATER F.], https://www.waterboards.ca.gov/waterrights/water_ issues/programs/bay_delta/california_waterfix/exhibits/docs/Folsom/ARWA_103.pdf [https://perma. cc/D2EJ-MKAP]. 287 This information is based on searches for the American River and its major tributaries on the list of California dams in the National Inventory of Dams. NATIONAL INVENTORY OF DAMS, https://nid.sec.usace.army.mil/ords/f?p=105:19:6005822088042::NO [https://perma.cc/UB72-ZP5Y]. There are twenty-two dams on the American or its major forks: two on the Rubicon River, one on Long Canyon Creek, and thirteen on Silver Creek or its tributaries. See Upper American River Water- shed, SACRAMENTO RIVER WATERSHED PROGRAM, https://sacriver.org/explore-watersheds/american- river-subregion/upper-american-river-watershed/ [https://perma.cc/EA4J-KDTC]. 288 Even after installation of the major water infrastructure, federal and state flood disasters have been declared, on average, roughly 2.5 times per decade. SACRAMENTO CNTY., 2016 SACRAMENTO COUNTYWIDE LOCAL HAZARD MITIGATION PLAN UPDATE 4-6 to -7 (2016), https://waterresources. saccounty.net/stormready/Documents/LHMP%20Draft%20Document/Sacramento%20County%20 LHMP%20Update%20Chapters%20Complete.pdf [https://perma.cc/SGC6-RW5C]. At present, “more than 400,000 people and $40 billion worth of property are vulnerable to flooding.” NAT’L RSCH. COUNCIL, IMPROVING AMERICAN RIVER FLOOD FREQUENCY ANALYSES 9 (1999). California faces the worst flood risk of any region in the United States. Ryan Sabalow, Think Harvey-Like Flooding Couldn’t Happen to Sacramento? Think Again., SACRAMENTO BEE (Aug. 31, 2017), https://www. sacbee.com/news/state/california/water-and-drought/article170234577.html [https://web.archive.org/ web/20190613145520/https://www.sacbee.com/news/state/california/water-and- drought/article170234577.html]. 289 Yoshiyama et al., supra note 285, at 157. 290 Id. at 112. 291 Id. at 157. 292 Id. at 117. 293 See, e.g., Michael T. Pyle, Beyond Fish Ladders: Dam Removal as a Strategy for Restoring America’s Rivers, 14 STAN. ENV’T L.J. 97, 103–04 (1995) (discussing the various detrimental effects of dams on aquatic life). 198 Boston College Law Review [Vol. 62:155 nia salmon and many steelhead.294 Managing the river ecosystem to support these fish takes careful oversight of water flows and temperatures and ongoing maintenance of spawning habitat.295 Reclamation manages American River flows and water temperatures under the 2006 Lower American River Flow Management Standard (FMS), a strict regime bearing little resemblance to historic conditions.296 By any measure, the FMS is tremendously complicated, requiring almost forty pages to explain.297 The FMS mandates extensive and ongoing monitoring, addressing “river hydrology, water temperature, adult chinook salmon population, chinook salmon spawning, steelhead spawning, steelhead rearing, and chinook salmon downstream movement.”298 The complicated requirements for the American River are not unique; these extensive monitoring, flow, and temperature requirements typify West Coast river management.299 In addition to the right volume and temperature of water, salmon, and steelhead require ongoing habitat management. The dams stop gravel movement from the mountains to below-dam reaches, and the water leaving the

294 TIM HORNER ET AL., AMERICAN RIVER GRAVEL STUDIES 2005: PHYSICAL AND GEOCHEMI- CAL CHARACTERISTICS OF AMERICAN RIVER SPAWNING GRAVELS 2 (2005). The downstream adult spawning populations include a few hundred threatened central valley steelhead, although most of the steelhead native to the American River were extirpated with the dam closure. NMFS, RECOVERY PLAN FOR THE EVOLUTIONARILY SIGNIFICANT UNITS OF SACRAMENTO RIVER WINTER-RUN CHI- NOOK SALMON AND CENTRAL VALLEY SPRING-RUN CHINOOK SALMON AND THE DISTINCT POPU- LATION SEGMENT OF CALIFORNIA CENTRAL VALLEY STEELHEAD 22 app.A, 54, 57 (2014). Most of the salmon in the system come from the hatchery located near the base of Nimbus dam. See infra note 518 and accompanying text. 295 See generally Larry R. Brown & Marissa L. Bauer, Effects of Hydrologic Infrastructure on Flow Regimes of California’s Central Valley Rivers: Implications for Fish Populations, 26 RIVER RSCH. & APPLICATIONS 751, 764 (2010) (“[E]valuat[ing] how existing hydrologic infrastructure and management affect streamflow characteristics of rivers in the Central Valley, California and dis- cuss[ing] those characteristics in the context of habitat requirements of native and alien fishes.”); Jason T. May & Larry R. Brown, Fish Communities of the Sacramento River Basin: Implications for Conservation of Native Fishes in the Central Valley, California, 63 ENV’T BIOLOGY FISHES 373, 382 (2002) (discussing differences in water-management practices and their effects on fish communities). 296 SACRAMENTO WATER F., supra note 286, at ii. This is required under the 2009 Biological Opinion for operation of the Central Valley Project and the State Water Project, as modified in 2011. NMFS, BIOLOGICAL OPINION AND CONFERENCE OPINION ON THE LONG-TERM OPERATIONS OF THE CENTRAL VALLEY PROJECT AND STATE WATER PROJECT 10 (2009). 297 SACRAMENTO WATER F., supra note 286, at i–ii. 298 Id. at 14. A variety of federal, state, and local agencies contract or conduct the monitoring, at a cost of over $745,000 per year, not including most in-kind contributions to the monitoring effort. Id. at 14–15, 18, 21–23. 299 See, e.g., NMFS, supra note 296, at 6–7 (describing monitoring, low, and temperature requirements for other rivers in the Central Valley); N. CAL. WATER AGENCIES, INSTREAM FLOW RE- QUIREMENTS IN THE SACRAMENTO RIVER HYDROLOGIC REGION UPDATED: NOVEMBER 2014, at 10 (Nov. 18, 2014), https://www.norcalwater.org/wp-content/uploads/2014/12/flowssacvalley-sep2014. pdf [https://perma.cc/Z2BW-QMYU] (describing monitoring, low, and temperature requirements for other rivers in the Sacramento River region). 2021] Governing Nature 199

dams carries much of the existing below-dam gravel out to the San Francisco Bay. 300 Since the dam closure, the Lower American River has lost a huge amount of gravel, over two million cubic meters between 1960 and 2000.301 Current estimates place annual losses at forty-four thousand cubic meters per year, roughly ten large dump truck loads per day.302 The loss has dropped the river bottom by up to twelve feet close to the dam and up to thirty feet in lower reaches.303 Salmon and steelhead need the gravel to build nests for their eggs.304 Rec- lamation, working with the FWS, has added a total of 100,880 tons of gravel to the river since 1999.305 Adding gravel is deceptively difficult. Appropriate gravel (rounded, river worn, with no sharp edges) is sorted by size to create an appropriate mix with a median diameter between 1 and 1.5 inches.306 The sorted gravel is washed until it is free of fine sediment, oils, clay, debris, and organic material.307 Front loaders add the sorted and washed gravel to the river one load at a time, distributing the gravel across the river bottom.308 The gravel is placed so that, at average flows, water depth above the gravel measures roughly 1.5 feet, ideal for Chinook salmon spawning.309 Gravel in the Ameri- can River still moves downstream with large flows, so gravel additions must be renewed, on average, every five years.310 The annual American River gravel

300 U.S. DEP’T OF INTERIOR, FINAL ENVIRONMENTAL ASSESSMENT: LOWER AMERICAN RIVER SALMONID SPAWNING GRAVEL AUGMENTATION AND SIDE-CHANNEL HABITAT ESTABLISHMENT PROGRAM 2 (2008) [hereinafter FINAL ENVIRONMENTAL ASSESSMENT], https://www.usbr.gov/mp/ nepa/includes/documentShow.php?Doc_ID=3404 [https://perma.cc/T5PN-FDRH]. 301 David Fairman, A Gravel Budget for the Lower American River, at v (2007) (M.S. thesis, Cal- ifornia State University, Sacramento). 302 WATER F., FISHERIES AND IN-STREAM HABITAT (FISH): MANAGEMENT AND RESTORATION PLAN FOR THE LOWER AMERICAN RIVER 34 (2019), https://www.waterforum.org/wp-content/uploads/ 2019/08/FISH-Plan-2019-Action-Update-Draft-Report-8.219.pdf [https://perma.cc/5R2N-UHDV]; see Learn How Much Dirt You Can Carry with Kenworth Dump Trucks, COOPERSBURG & LIBERTY KEN- WORTH (Mar. 28, 2018), https://www.coopskw.com/learn-much-dirt-can-carry-kenworth-dump-trucks/ [https://perma.cc/EM3H-3VLS] (providing that “a typical dump truck will hold around 10-14 cubic yards of material”). 303 Fairman, supra note 301, at 36, 49 (describing the river bottom’s change in meters). 304 FINAL ENVIRONMENTAL ASSESSMENT, supra note 300, at 2. 305 U.S. DEP’T OF INTERIOR ET AL., CENTRAL VALLEY PROJECT IMPROVEMENT ACT, PUB. L. NO. 102-575: ANNUAL REPORT, FISCAL YEAR 2014, at 26 (2016) [hereinafter CENTRAL VALLEY PROJECT IMPROVEMENT ACT, 2014], https://www.usbr.gov/mp/cvpia/docs_reports/docs/Annual_Report/2014- cvpia-annual-report.pdf [https://perma.cc/AN2W-D4QX]. 306 FINAL ENVIRONMENTAL ASSESSMENT, supra note 300, at 11. 307 Id. 308 Id. at 11–12. 309 U.S. BUREAU OF RECLAMATION, SUPPLEMENTAL ENVIRONMENTAL ASSESSMENT: LOWER AMERICAN RIVER SALMONID SPAWNING GRAVEL AUGMENTATION & SIDE-CHANNEL HABITAT ES- TABLISHMENT PROGRAM—NIMBUS BASIN 5 (2014), https://www.usbr.gov/mp/nepa/includes/ documentShow.php?Doc_ID=18485 [https://perma.cc/7XKW-3FZZ]. 310 Id. at 3. 200 Boston College Law Review [Vol. 62:155 expenditures appear to be roughly $500,000 from 2010 to 2014,311 although the gravel additions still fall far short of annual average losses.312 The gravel additions clearly make a difference in the river, improving survival for salmonids from 10% to 40% and salmonids have significantly increased their spawning in areas supplemented with gravel on the Lower American River.313 Although natural river processes would produce perfect gravel, flow, temperature, and habitat conditions in some places on an intact river system, given the small amount of habitat remaining to American River steelhead and salmon, such extensive efforts are necessary to ensure survival of the fish in this watershed.314

311 Although figures localized to the American River are not available, costs for gravel restoration for the American, Sacramento, and Stanislaus Rivers totaled: $693,000 in 2010; $899,951 in 2011; $758,228 in 2012; $620,753 in 2013; and $1,163,177 in 2014. BUREAU OF RECLAMATION, ANNUAL FINANCIAL REPORT: CENTRAL VALLEY PROJECT IMPROVEMENT ACT: PUBLIC LAW 102-575, TITLE XXXIV, at 10 (Sept. 2011), https://www.usbr.gov/mp/cvpia/docs_reports/Financial_Reports/2010_ CVPIA_Annual_Financial_Report.pdf [https://perma.cc/Q4MG-RBQG]; BUREAU OF RECLAMATION, ANNUAL FINANCIAL REPORT: CENTRAL VALLEY PROJECT IMPROVEMENT ACT: PUBLIC LAW 102- 575, TITLE XXXIV, at 10 (Feb. 2013), https://www.usbr.gov/mp/cvpia/docs_reports/Financial_ Reports/2011_CVPIA_Annual_Financial_Report.pdf [https://perma.cc/D5T9-PC7S]; BUREAU OF RECLAMATION, ANNUAL FINANCIAL REPORT: CENTRAL VALLEY PROJECT IMPROVEMENT ACT: PUBLIC LAW 102-575, TITLE XXXIV, at 10 (Sept. 2013), https://www.usbr.gov/mp/cvpia/docs_ reports/Financial_Reports/2012_CVPIA_Annual_Financial_Report.pdf [https://perma.cc/E9RB- L49S]; BUREAU OF RECLAMATION, ANNUAL FINANCIAL REPORT: CENTRAL VALLEY PROJECT IM- PROVEMENT ACT: PUBLIC LAW 102-575, TITLE XXXIV, at 10 (Sept. 2014), https://www.usbr.gov/ mp/cvpia/docs_reports/Financial_Reports/2013-cvpia-annual-financial-report.pdf [https://perma.cc/ 8GUR-YTZU]; CENTRAL VALLEY PROJECT IMPROVEMENT ACT, 2014, supra note 305, at 6. 312 As mentioned above, roughly forty-four thousand cubic meters of gravel leave the river each year. See supra note 302 and accompanying text. This equals about eighty-one thousand tons per year. See Gravel Calculator, GIGACALCULATOR.COM, https://www.gigacalculator.com/calculators/gravel- calculator.php#:~:text=How%20much%20does%20a%20cubic,84%20kg%20or%200.084%20tonnes [https://web.archive.org/web/20200922083517/https://www.gigacalculator.com/calculators/gravel- calculator.php]. Meanwhile, Reclamation has added over one hundred thousand tons of gravel over the last twenty years—only twenty thousand tons more than what the river loses in an average year. See supra note 305 and accompanying text. 313 S.C. Zeug et al., Gravel Augmentation Increases Spawning Utilization by Anadromous Salm- onids: A Case Study from California, USA, 30 RIVER RSCH. & APPLICATIONS 707, 714 (2013). But see CIRCLEPOINT, LISTEN TO THE RIVER: AN INDEPENDENT REVIEW OF THE CVPIA FISHERIES PRO- GRAM 29 (2008), https://www.usbr.gov/mp/cvpia/docs_reports/indep_review/FisheriesReport12_12_ 08.pdf [https://perma.cc/L42S-PS9C] (discussing the limitations of the gravel management strategies employed in the Central Valley). 314 This is the norm for regulated rivers. Just within California, gravel replenishment costs topped $22,000,000 from 1979 to 2000 on the Upper Sacramento River. G. Mathias Kondolf, Hungry Water: Effects of Dams and Gravel Mining on River Channels, 21 ENV’T MGMT. 533, 536 (1997). Globally, dams have reduced sediment delivery at all scales, with an overall reduction in the total amount of sediment moving into the ocean of 30% to 40%. James P.M. Syvitski et al., Sinking Deltas Due to Human Activities, 2 NATURE GEOSCIENCE 681, 683 (2009); D.E. Walling, Human Impact on Land— Ocean Sediment Transfer by the World’s Rivers, 79 GEOMORPHOLOGY 192, 200 (2006). 2021] Governing Nature 201

1. Reconciling the American River The American River embodies reconciliation ecology.315 Reconciliation efforts on the American River seek to create and improve habitats for a variety of species, both native and nonnative, within the constraints imposed by historic changes from water infrastructure, land use, species management, and other decisions. The river has not been returned to its historic flow patterns, and, if our current settlement and land use patterns are to continue in the Central Val- ley, it cannot be. Moreover, restoration of historic conditions are unlikely to protect the native fish species—given the current biotic makeup and loss of habitat in the American River ecosystem, native fish now likely require the higher and colder summer flows found below the dam, and historic flows might actually favor nonnative species.316 The management framework does not accept and justify these conditions per se, but seeks to manage around those conditions that appear unlikely or physically impossible to change. Because dams have eliminated the river flows, nutrient and sediment inputs, and other processes that originally created and maintained the American River ecosystem, managers have taken on the challenge of directing these processes themselves. Only by continuing to curate carefully the environmental screens for the American River ecosystem can we hope to support iconic but imperiled species like steelhead and salmon.317

2. Management Under the Law of the River The law around American River ecosystem management is complicated and although it might be necessary to set the stage for river management, it also has made collaborative management of the river more difficult.318 The Reclamation physically controls the flows through the Folsom and Nimbus Dams,319 but a tangled web of state and federal law and court decisions binds it. This “law of the river,” comprised of state public trust, environmental, and water rights law, as well as federal ESA, Clean Water Act, water project authori-

315 See infra notes 318–376 and accompanying text. 316 See Michael P. Marchetti & Peter B. Moyle, Effects of Flow Regime on Fish Assemblages in a Regulated California Stream, 11 ECOLOGICAL APPLICATIONS 530, 537–38 (2001) (demonstrating “how native fishes in streams of the western United States respond to annual and seasonal variation in flow in a different manner than nonnative fishes and how they exhibit different habitat requirements”); Peter B. Moyle et al., Alien Fishes in Natural Streams: Fish Distribution, Assemblage Structure, and Conservation in the Cosumnes River, California, U.S.A., 68 ENV’T BIOLOGY OF FISHES 143, 143 (2003) (indicating that nonnative fishes would benefit from historic flow regimes in the Cosumnes River). 317 See infra notes 318–376 and accompanying text. 318 See infra notes 319–321 and accompanying text. 319 N. CAL. WATER AGENCIES, supra note 299, at 10. 202 Boston College Law Review [Vol. 62:155 zations, and other administrative law,320 seems to be in play on virtually every river basin in the West, although the cocktail differs a little each time.321 Navi- gating the law of the river is tremendously difficult, and conflicting laws and agency and stakeholder priorities make these systems hotbeds for litigation. A brief overview of the American River’s law of the river provides context here. Although Reclamation controls dam releases, flood concerns drive water releases during much of the winter, so Reclamation has little control over those flows. Numerous parties also have claims to the water in the American River, from local water districts with their own water rights to water districts farther south who have contract claims to water deliveries from Reclama- tion.322 As a result, California state water rights law and administrative decisions, primarily California Water Board Decision 893 for the lower American River, constrain Reclamation’s operations.323 A long-running lawsuit, which began in 1972 over the East Bay Municipal Utility District’s (East Bay MUD) effort to obtain water from the American River, resulted in the Hodge Decision in 1990.324 The Hodge Decision established minimum flows for the American River, below which East Bay MUD cannot divert additional water, adding another layer to the milieu.325 Hydropower needs also drive water releases from the Folsom and Nimbus dams. The dams are part of the federal Central Valley Project, which shares some infrastructure with the State Water Project, so Reclamation must coordi- nate dam operation with state officials. Reclamation periodically develops a

320 See, e.g., Adell Louise Amos, Developing the Law of the River: The Integration of Law and Policy into Hydrologic and Socio-Economic Modeling Efforts in the Willamette River Basin, 62 U. KAN. L. REV. 1091 (2014) (documenting the complex mix of state and federal law controlling management of the Willamette River). 321 See Craig Anthony Arnold, Environmental Law, Episode IV: A New Hope?: Can Environmen- tal Law Adapt for Resilient Communities and Ecosystems?, 21 J. ENV’T & SUSTAINABILITY L. 1, 15 (2015) (defining this mix to include “surface water rights, groundwater rights, point source pollution controls, urban no[n]point source pollution and runoff controls, rural and agricultural nonpoint source pollution controls, wetlands protection, land use planning and regulation, protection of endangered species and their habitats, navigation and recreation management, water development projects, flood management, and energy law and policy”). 322 See BUREAU OF RECLAMATION, LONG-TERM CENTRAL VALLEY PROJECT OPERATIONS CRI- TERIA AND PLAN CVP-OCAP 3–18 (2004), https://www.usbr.gov/mp/cvo/OCAP/OCAP_6_30_04. pdf [https://perma.cc/N8DR-99CQ] (“Water released from Folsom Lake is used to generate hydroe- lectric power, meet downstream water rights obligations, contribute to Delta inflow requirements, and provide water supplies to CVP contractors.”). 323 Decision on Major Applications to Appropriate Water from American River System, D 893 (Cal. State Water Rts. Bd. Mar. 21, 1958), https://www.waterboards.ca.gov/waterrights/board_decisions /adopted_orders/decisions/d0850_d0899/wrd893.pdf [https://perma.cc/3TB8-WWFP]. 324 Stuart L. Somach, The American River Decision: Balancing Instream Protection with Other Competing Beneficial Uses, 1 RIVERS 251, 251–52, 257–60 (1990). The Hodge Decision is named after the judge who wrote it. Id. 325 Id. at 259. 2021] Governing Nature 203

Joint Operations Criteria and Plan (OCAP) governing this coordination for the state and federal projects. The OCAP must comply with several federal laws: NEPA, which establishes strict procedural requirements for environmental analysis of major federal actions that could affect the human environment;326 the state and federal ESAs; and the 1992 federal Central Valley Project Im- provement Act (CVPIA), which requires that all reasonable efforts be made to increase natural reproduction of anadromous fish in the American River to twice the average levels from 1967 through 1991.327 Other state laws, including Cali- fornia Fish and Game laws, such as section 5937 (requiring adequate flows for fish below dams), add additional requirements to existing flow mandates.328 Remarkably, in spite of these layers of law, none of the statutes sets out a vision for the American River ecosystem. This vision, a goal for the river’s ecosystem, is the necessary prerequisite to successful reconciliation for the riverine ecosystem. Reclamation could, hypothetically, develop such a plan and use it to shape or inform its other obligations, but Reclamation is a huge federal agency with projects throughout the West, and it is not institutionally disposed to such an undertaking. The OCAP might provide an opportunity for such an approach but Reclamation and state agencies author the OCAP, which focuses on compliance with NEPA and the ESA, not on the ecosystem as a whole. These permit-driven approaches do not lend themselves to whole- ecosystem management. The American River stakeholders, a diverse group of local governments, water districts, environmental groups, business interests, public interest organizations, and local governments, spent decades litigating Reclamation’s decisions regarding the American River.329 The stakeholders held diverse priorities for the American River, and the law of the river creates a target-rich litigation environment. The law of the river creates enforceable requirements, sometimes

326 National Environmental Policy Act, 42 U.S.C. §§ 4321–4347. 327 Reclamation Projects Act, Pub. L. No. 102-575, § 3406(b)(1), 106 Stat. 4600, 4714 (1992). CVPIA also requires “a continuing program for the purpose of restoring and replenishing, as needed, spawning gravel.” Id. § 3406(b)(13). The anadromous fish species subject to the CVPIA mandate include both native and nonnative species. FWS, FINAL RESTORATION PLAN FOR THE ANADROMOUS FISH RESTORATION PROGRAM 2 (2001), https://www.fws.gov/cno/fisheries/CAMP/Documents/Final_ Restoration_Plan_for_the_AFRP.pdf [https://perma.cc/QX6T-32T6]. 328 See generally Karrigan S. Bork et al., The Rebirth of California Fish & Game Code 5937: Wa- ter for Fish, 45 U.C. DAVIS L. REV. 809 (2012) (outlining California Fish and Game Code § 5937 and arguing that it has not been adequately enforced). 329 See, e.g., Env’t Def. Fund, Inc. v. E. Bay Mun. Util. Dist., 20 Cal. 3d 327 (1977), vacated, 439 U.S. 811 (1978) (finding that the organizations, taxpayers, and property owners who challenged a contract entered into between the municipal utility district and Reclamation failed to state a cause of action); see also Sarah Connick, The Sacramento Area Water Forum: A Case Study 6–7 (U.C. Berke- ley Inst. of Urb. & Reg’l Dev., Working Paper, No. 2006-06, 2006), https://escholarship.org/uc/ item/8fn9d21c [https://perma.cc/7KYX-Q5Z5] (describing other conflicts between Sacramento Coun- ty, the City of Sacramento, environmental organizations, and the East Bay Municipal Utility District). 204 Boston College Law Review [Vol. 62:155 at odds with each other, which provide plenty of pressure points for stakeholders seeking to affect the system. But this is an expensive and ineffectual way to establish priorities for managing an ecosystem. Recognizing the futility of their litigation logjam, many stakeholder organizations tried a new approach in the late 1990s.330 They created a new non- regulatory decision-making entity, the Sacramento Area Water Forum (Water Forum), to hash out their differences and present a united front to state and federal regulators.331 The Water Forum includes business interests, water districts and other water purveyors, general public interest entities from city or county governments to the League of Women Voters of California, and environmental organizations.332 As outlined in an excellent case study from the Institute of Urban and Regional Development at the University of California, Berkeley, “[i]n six years and at a cost of nearly $10 million, more than 41 entities developed and committed to carrying out a plan for regional water management for the next 30 years.”333 Early in its existence, the consensus-based group embraced a key idea that marks this as a reconciliation effort—the stakeholders set two coequal goals: a reliable and safe water supply and preservation of the “fishery, wildlife, recreational, and aesthetic values of the Lower American River.”334 These coequal goals, later echoed in other Califor- nia water efforts like the California Delta Reform Act of 2009,335 indicate the Water Forum’s acceptance of current (and even future) limits on how much restoration would be possible on the American River. Through the coequal

330 See Connick, supra note 329, at 10 (describing the formation of the “City-County Office of Metropolitan Water Planning,” an effort to “develop mutual understandings that would enable [the parties] to move forward with water-supply projects”); Marc B. Mihaly, Citizen Participation in the Making of Environmental Decisions: Evolving Obstacles and Potential Solutions Through Partner- ship with Experts and Agents, 27 PACE ENV’T L. REV. 151, 188 (2010) (“Legislation (and adjudica- tion) typically provided the forum where . . . competing social and economic needs [in the American River region] were resolved. In [the American River’s] case, however, the stakeholders elected to abandon the public arena and resolve competing needs to American River water through negotiation.”). This did not end the litigation entirely, although more recent litigation appears to be focused on the broader regional water projects, not on the American River itself. See, e.g., San Luis & Delta- Mendota Water Auth. v. Locke, 776 F.3d 971 (9th Cir. 2014) (finding that NMFS had not acted arbi- trarily or capriciously in its decisions concerning the effects of two California water projects on endangered fish species). 331 Mihaly, supra note 330, at 188. 332 Water Forum Signatories, WATER F., http://www.waterforum.org/stakeholders/water-forum- signatories/ [https://perma.cc/64A4-D8DH]. 333 Connick, supra note 329, at 5. 334 WATER F., WATER FORUM AGREEMENT 8 (Jan. 2000, updated Oct. 2015) [hereinafter WATER FORUM AGREEMENT], http://www.waterforum.org/wp-content/uploads/2014/08/Water-Forum- Agreement-Update-2015-FINAL-FOR-PRINT2.pdf [https://perma.cc/B4G5-5AUA]. 335 CAL. WATER CODE § 85054 (West 2020) (“‘Coequal goals’ means the two goals of providing a more reliable water supply for California and protecting, restoring, and enhancing the Delta ecosystem.”). 2021] Governing Nature 205

goals, environmentalists implicitly acknowledged the American River’s permanent alterations and accepted that protection of the river’s new ecosystem would take place within this new environmental setting. The Water Forum hammered out the 2006 FMS and then worked to con- vince Reclamation to adopt the standard.336 After getting Reclamation on board, the Water Forum supported Reclamation as it put the standard through the necessary hurdles at the California Water Board and in the required federal analyses.337 By building the flow standard on a shared vision for the American River ecosystem, the Water Forum successfully navigated the complex law of the river and produced a workable ecosystem management plan. Collaborative groups like the Water Forum play an increasingly central role in making ecosystem-level decisions.338 The environmental law literature is rife with examples: the Herger-Feinstein Quincy Library Group (including the timber industry, environmentalists, and local officials);339 the current Flori- da Everglades restoration (including key state and federal agencies and interest groups);340 the Four Forests Restoration Initiative (including industry and environmental groups);341 and the Greater Yellowstone Ecosystem project, which seeks to extend ecosystem management beyond Yellowstone National Park.342 Some federal laws encourage these approaches on federal lands,343 particularly the U.S. Department of Interior’s Landscape Conservation Cooperatives,344 but most large-scale ecosystem projects result from private advocates, not government programs.345 Although some federal lands offer their own management possibilities, discussed below, ecosystems spanning state, private, and

336 SACRAMENTO WATER F., supra note 286, at 2, 6. 337 Id. at 8–9. 338 See Martin Nie, Whatever Happened to Ecosystem Management and Federal Land Planning?, in THE LAWS OF NATURE: REFLECTIONS ON THE EVOLUTION OF ECOSYSTEM MANAGEMENT LAW & POLICY 68, 87 (Kalyani Robbins ed., 2013) (arguing that these informal collaborative groups “get[] agencies to think about the big picture and all of its interconnections is becoming a common story”). 339 Keiter, supra note 14, at 1203–04. 340 Tarlock, supra note 96, at 1207–08. 341 Nie, supra note 338, at 84. 342 Telesetsky, supra note 106, at 535. Professor Telesetsky also discusses numerous other similar efforts. Id. at 536. 343 For example, the Collaborative Forest Landscape Restoration Act of 2009, Pub. L. No. 111- 11, Title IV, § 4001 (2009), provides funding for restoration projects developed through a collaborative approach, and the Healthy Forests Restoration Act, 16 U.S.C. §§ 6501–6591, requires collabora- tively written community wildfire protection plans. Nie, supra note 338, at 83. 344 Telesetsky, supra note 106, at 532, 540. 345 Id. at 540. For a detailed study, see KAREN BRADSHAW, STAKEHOLDER COLLABORATIONS FOR MANAGING LAND AND NATURAL RESOURCES 3 (2017), https://www.acus.gov/sites/default/files/ documents/Natural%20Resource%20Collaborations%20Report.pdf [https://perma.cc/L8TC-FJ85] (“[I]dentif[ying], defin[ing], and evaluat[ing] . . . longstanding working groups comprised of diverse stakeholders committed to providing input on the evolving management challenges surrounding the use of public land and natural resouces.”). 206 Boston College Law Review [Vol. 62:155

federal lands essentially have no effective governance infrastructure. Waiting for stakeholders to get fed up with the process and develop their own structure seems a poor solution to this problem. Finding better ways to encourage these processes is difficult. In the Water Forum example, existing laws created the pressures that drove the stakeholders to the bargaining table;346 getting rid of existing laws would reduce this pressure and seems unlikely to increase ecosystem-level collaborative planning processes. Before the Water Forum began, the Hodge Decision, other regional planning efforts, and decades of litigation established virtual ground rules for the negotiations, ensuring a minimum of environmental protection and incen- tivizing collaboration.347 As in the bay checkerspot butterfly example, it isn’t that the existing law is not necessary, but rather that existing law does not encourage the kind of management required in a Wall-E world.348 Collaborative decision-making, as in the Water Forum example, is a difficult process that takes commitment and leadership. The Water Forum participants used a carefully thought out process, spanning organization, education, and then eventually negotiation, over several years.349 It generally followed the interest-based negotiation approach, which helps participants understand the interests behind their positions and their fellow negotiators’ positions, better enabling compromise solutions that meet all participants’ needs.350 More generally, although many federal agency decisions involve stakeholders,351 most seem to lack some of the ingredients that made the American River example so successful. Broadly speaking, collaborations help agencies by producing better decisions, reducing litigation around and increasing acceptance of those decisions, and encouraging non-agency participations to expend their resources on agency goals.352 Risks include violating decision-making statutes or regulations, expen-

346 See Connick, supra note 329, at 9 (explaining that by the late 1970s, City and County water planners had recognized the water supply problems that would arise due to the region being broken up into so many different water districts, leading them to start “a new planning process engaging the other purveyors in the development of a new regional plan”). 347 Id. at 9–10. 348 See supra notes 125–211 and accompanying text. 349 See Connick, supra note 329, at 26–46 (discussing the role of the staff and outside consultants, as well as the “planning, organization, education, negotiation, and resolution of issues, and implementation” of the Forum). 350 Id. at 31. 351 BRADSHAW, supra note 345, at 33 (“The sheer number of statutes, executive orders, and regulations contemplating stakeholder collaborations indicate that these collaborations have become a tool upon which Congress, the president, and agencies relies.”). 352 Id. 2021] Governing Nature 207

sive and time consuming (and thus exclusive) decisions-making processes, and perhaps insufficient evidence about the value of stakeholder collaborations.353

3. Strengths and Weaknesses of American River Management One remarkable strength of the Water Forum approach lies in the recognition that it was not a one-off solution for American River ecosystem management, but rather an approach that should work over several iterations.354 As Dr. Sarah Connick tells it, “the Water Forum participants began to recognize that changes they could not predict would inevitably occur in the future. . . . They developed the principle of ‘changed conditions,’ where, in the event that such a change occurred, they would seek a solution and develop a new agreement relating to the change.”355 Dr. Connick describes this as “[p]erhaps the most important assurance the Water Forum developed,”356 which Forum members named the “Water Forum Successor Effort.”357 This approach addressed many uncertainties: whether the fish would respond as well as hoped to habitat manipulation; whether funds would be available for all of the proposed work; and whether groundwater contamination would preclude groundwater augmentation of surface water supply during dry years.358 The agreement itself provides: If the future environmental conditions in lower American River environment are significantly worse than the conditions projected in the [Environmental Impact Report], this would constitute a changed condition that would be considered by the Water Forum Successor Effort. Significant new information on the needs of the lower Amer- ican River fisheries, which was not known at the time of execution of the Water Forum Agreement, would also constitute a changed condition that would be considered by the Water Forum Successor Effort.359 This approach proved insightful when California’s extensive 2011–2017 drought nearly doomed steelhead and salmon on the American River and re-

353 Id. at 36. But see THOMAS DIETZ & PAUL C. STERN, PUBLIC PARTICIPATION IN ENVIRON- MENTAL ASSESSMENT AND DECISION MAKING 3 (2008) (“When done well, public participation improves the quality and legitimacy of a decision and builds the capacity of all involved to engage in the policy process. It can lead to better results in terms of environmental quality and other social objectives. It also can enhance trust and understanding among parties.”). 354 See supra notes 318–353 and accompanying text. 355 Connick, supra note 329, at 48. 356 Id. at 68. 357 Id. at 48. 358 Id. at 68. 359 WATER FORUM AGREEMENT, supra note 334, at 148. 208 Boston College Law Review [Vol. 62:155

duced water suppliers’ ability to deliver water.360 In November 2015, Folsom Lake reached its lowest storage level ever recorded, at 140,410 acre feet.361 This matters because lake levels below two hundred thousand AF tightly constrain water deliveries from the lake, and most water supply intakes cannot reach the water below ninety thousand AF. 362 Newer models suggest Folsom will drop below ninety thousand AF in ten percent of years under our expected future climate regime.363 The lower water levels also mean insufficient cold water for fish, resulting in unhealthy conditions for fall-run Chinook salmon and steelhead.364 Even the fish hatchery at Nimbus Dam could not secure enough cold water—in 2014 and 2015, managers had to evacuate young steelhead from the hatchery and move them to another hatchery with enough cold water to keep the fish alive.365 Over 155,000 trout were not evacuated and died from the warm water.366 The Forum members found that “recent history, including the current drought, has demonstrated that the water resources of the America River basin under the current operating regime are not as reliable as previously believed, and therefore must be managed to account for this increased risk.”367 After more negotiation, the Water Forum proposed new flow requirements, termed the Lower American River Modified Flow Standard, which again seek to improve water availability for human use while also improving conditions for steelhead and salmon.368 The proposed standard is currently under review by permitting authorities, but should result in significantly lower water temperatures for the steelhead rearing season, more spawning habitat for fall-run Chinook salmon, better conditions during the driest years, and improved water reliability in the region.369

360 SACRAMENTO WATER F., THE LOWER AMERICAN RIVER MODIFIED FLOW MANAGEMENT STANDARD, at ii (2015). 361 Drought-Plagued California’s Folsom Lake Drops to Historic Low, CBS News (Nov. 17, 2015), https://www.cbsnews.com/news/california-folsom-lake-reaches-historic-low-during-record- drought/#:~:text=SACRAMENTO%20COUNTY%20%2D%2D%20The%20water,decreased%20 to%20140%2C600%20acre%20feet [https://perma.cc/UUW2-GMKT]. 362 Id. 363 Id. 364 Id. 365 Drought Prompts Fish Evacuation at Local Hatcheries, MOUNTAIN DEMOCRAT (July 6, 2015), https://www.mtdemocrat.com/news/drought-prompts-fish-evacuation-at-local-hatcheries/ [https://perma. cc/W5QL-234G]. 366 Ryan Sabalow, More Than 155,000 Trout Die at American River Hatchery, SACRAMENTO BEE (Sept. 8, 2015), https://www.sacbee.com/news/local/environment/article34416483.html [https:// web.archive.org/web/20190428233332/https://www.sacbee.com/news/local/environment/article344 16483.html]. 367 SACRAMENTO WATER F., supra note 360, at 6. 368 Id. at i. 369 WATER F., supra note 302, at 6. 2021] Governing Nature 209

In a notable weakness, the current management efforts fail to address a nonnative species, the striped bass, that has become an important and cher- ished part of the American River ecosystem. The CVPIA370 requires that the Secretary of the Interior: develop within three years of enactment . . . a program which makes all reasonable efforts to ensure that, by the year 2002, natural production of anadromous fish[es] [including striped bass and shad, another nonnative fish] in Central Valley rivers and streams will be sustainable, on a long-term basis, at levels not less than twice the average levels attained during the period of 1967–1991.371 Although the Secretary must, “if requested by the State of California, assist in developing and implementing management measures to restore the striped bass fishery of the Bay-Delta estuary,”372 neither the state nor the Secretary of the Interior have taken any actions to recover the striped bass. This seems animated in large part by the origins of striped bass in California, which were introduced to the state in 1879.373 Because striped bass are the primary target of California fishermen, do well in the Sacramento River system when they have enough water, and do not appear to be a limiting factor in the survival of salmon and steelhead,374 the managers’ insistence on ignoring these fish seems to be motivated at least in part by their nonnative status. This is a Bambi approach that does not make sense in our Wall-E world.375 The Water Forum also illustrates a broad weakness in our existing environmental laws. The Forum only developed after decades of fighting; it had to overcome the adversarial relationships cultivated by the environmental law framework. How much better would management of the river have been if the parties had hashed out an agreement twenty years earlier? To some extent, this ignores the reality of negotiation, especially within the interest-based approach used by the Forum. The parties were well attuned to both their own and other parties’ alternatives to a negotiated agreement, and many had lived through

370 Reclamation Projects Act, Pub. L. No. 102-575, § 3406(b), 106 Stat. 4600, 4714 (1992). 371 Id. § 3406(b)(1). 372 Id. § 3406(b)(18). 373 JOHN E. SKINNER, AN HISTORICAL REVIEW OF THE FISH AND WILDLIFE RESOURCES OF THE SAN FRANCISCO BAY AREA 71 (1962). 374 Karrigan Bork, Guest Species: Rethinking Our Approach to Biodiversity in the Anthropocene, 2018 UTAH L. REV. 169, 200, 202–03. 375 See generally id. (arguing that “Western environmental law rests on an outdated philosophy that only fully ‘natural’ places, species, and ecosystems should receive full protection, while human influenced places, species, and ecosystems are lesser habitats not worthy of full-throated protection. As we move into the Anthropocene . . . this simplistic view loses its power to guide our decisionmaking”). 210 Boston College Law Review [Vol. 62:155

decades of bitter and expensive fights. It is unclear whether they could have gotten to the same agreements absent their history, and the negotiations certainly would have been different without the backdrop of the ESA and the Hodge Decision. Nevertheless, the current legal framework does a poor job of encouraging these kinds of decision-making processes.376

D. Other Federal Ecosystem Management This Section covers other methods of ecosystem management at the federal level. Subsection 1 briefly discusses the current management efforts taking place on federal land.377 Subsection 2 provides an overview of other federal management efforts.378

1. Federal Lands In contrast to the examples above, most federal land at least has a legal apparatus to make decisions about ecosystem management.379 A full review falls beyond our scope but, fortunately, several authors have provided enlight- ening discussions about federal land management. Professor Robert Keiter’s agenda-setting 1994 article laid out an optimistic vision for federal laws that could enable the broad goal-setting required for ecosystem management.380 More recent work, including Professor Keiter’s follow-up 2005 article suggests, however, that much of this potential remains untapped.381 Professor Martin Nie provides the best recent summary. Although “[p]lanning is ubiquitous in federal land management [and l]aws governing the national forests, rangelands, parks, and wildlife refuges include planning mandates,” the ESA and other litigation still drive most efforts.382 Although he notes some progress, Professor Nie concludes that federal land management agencies still largely have failed to embrace ecosystem management and that additional congressional action may be required.383

376 See infra notes 400–421 and accompanying text. 377 See infra notes 379–390 and accompanying text. 378 See infra notes 391–397 and accompanying text. 379 See infra note 382 and accompanying text. 380 See generally Keiter, supra note 168. 381 Keiter, supra note 14, at 1128; see also Robert W. Adler, Restoring the Environment and Restoring Democracy: Lessons from the Colorado River, 25 VA. ENV’T L.J. 55, 57 (2007) (arguing that current environmental laws do not address the “fundamental value choices” that environmental restoration entails and do not serve the goals of restoration adequately). 382 Nie, supra note 338, at 70–71. 383 Id. at 87. Professor Nie notes that “these planning statutes are simply not designed to deal with today’s problems.” Id. at 89. 2021] Governing Nature 211

Perhaps Professor Jamison Colburn has it right in his sobering 2007 article. He acknowledges that “[a]ctive management of public lands for the protection and restoration of habitat is a cornerstone of any effective biodiversity strategy,”384 but ultimately concludes that the history of public land management stymies the very work needed to make that active management happen. “Ecological restoration would require exactly the sort of pluralistic deliberation and collaboration by the users, abutters, affinity groups, and administra- tors of the different types of public lands that all those parties have evolved for the last century to avoid.”385 Even if federal lands were well managed to meet the coming environmental changes, that simply would not be enough. Federal lands leave out many major North American terrestrial and wetland ecosystems and species.386 Large-scale restoration projects often span numerous land ownerships. A survey of major river restoration projects found that they generally required part- nering with seven or eight different entities, including “federal, state and local government agencies, NGOs, private landowners, and volunteers.”387 Most were in watersheds dominated by agriculture, with nearly one-third in urban or suburban watersheds, generally well beyond the scope of federal land planning. 388 Over half of the projects occurred on private land.389 Even wildly successful protection of ecosystems on federal land is unlikely to produce a future we want to live in.390

2. Other Federal Ecosystem Management Statutory vacuums and agency indecision plague federal ecosystem management beyond the borders of federal lands as well.391 Broad mandates with wishy-washy language make legal challenges difficult, and agencies often fail to use even this broad authority.392 Strong programs generally cover too little.

384 Colburn, supra note 27, at 147. 385 Id. at 168–69. 386 David W. Crumpacker et al., A Preliminary Assessment of the Status of Major Terrestrial and Wetland Ecosystems on Federal and Indian Lands in the United States, 2 CONSERVATION BIOLOGY 103, 103 (1988); Andrew J. Hansen et al., Carrying Capacity for Species Richness as a Context for Conservation: A Case Study of North American Breeding Birds, 20 GLOB. ECOLOGY & BIOGEOGRA- PHY 817, 817 (2011). 387 Emily S. Bernhardt et al., Restoring Rivers One Reach at a Time: Results from a Survey of U.S. River Restoration Practitioners, 15 RESTORATION ECOLOGY 482, 488 (2007). 388 Id. 389 Id. 390 See supra notes 383–389 and accompanying text. 391 See, e.g., Telesetsky, supra note 106, at 494 (discussing several other federal laws that go beyond federal lands to address particular ecosystems or types of ecosystems, such as the 2000 Estuaries and Clean Waters Act and the Elwha River Ecosystem and Fisheries Act). 392 Palmer & Ruhl, supra note 88, at 514. 212 Boston College Law Review [Vol. 62:155

The Federal Power Act,393 for example, requires the Federal Energy Regulato- ry Commission (FERC) to determine whether projects seeking new or renewed hydropower licenses will improve or develop the waterway for the benefit of commerce, water-power development, adequate protection and enhancement of fish and wildlife, and other beneficial public uses.394 This can lead to consideration of broad ecosystem effects, but because most dams do not fall under FERC jurisdiction, relicensing provides a very limited hook for ecosystem management. Programs like the government’s “no net loss” requirements under the Clean Water Act395 are better than nothing, but often fail due to inadequate focus on “overall viability, and inadequate implementation and enforcement.”396 These federal laws, particularly the federal land statutes, put federal land ahead of the game in ecosystem management because they at least provide a structure for ecosystem management. Nevertheless, it is clear that the current approach is not working well and will face additional failures governing in the Anthropocene.397

III. ECOSYSTEM GOVERNANCE IN A WALL-E WORLD This Part focuses on how environmental law should change to accommodate the realities of conservation in our Wall-E world. Section A of this Part discusses the changes that must be made to current environmental law to accommodate reconciliatory ecosystem management efforts.398 Section B discusses a number of factors that new governance structures will need to consider if they are to be successful.399

A. We Must Develop Sufficient Governance for Ecosystem Reconciliation

1. Our Current Framework Is Insufficient Imagine the challenge facing the people returning to Earth in Wall-E.400 They faced a barren planet and took on the awesome responsibility of rebuild-

393 Federal Power Act, 16 U.S.C. §§ 791–828c. 394 Paul Stanton Kibel, Passage and Flow Considered Anew: Wild Salmon Restoration via Hydro Relicensing, 37 PUB. LAND & RES. L. REV. 65, 74 (2016). 395 See 33 U.S.C. § 1344(a); Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition of “Waters of the United States,” 68 Fed. Reg. 1991 (Jan. 15, 2003); WHITE HOUSE OFF. ON ENV’T POL’Y, PROTECTING AMERICA’S WETLANDS: A FAIR, FLEXIBLE, AND EFFEC- TIVE APPROACH (1993). 396 Albert C. Lin, Myths of Environmental Law, 2015 UTAH L. REV. 45, 47–49. 397 See infra notes 400–421 and accompanying text. 398 See infra notes 400–451 and accompanying text. 399 See infra notes 452–527 and accompanying text. 400 See supra notes 34–36 and accompanying text. 2021] Governing Nature 213

ing Earth’s ecosystems, biogeochemical cycles, essentially making a new nature. This would have been a monumental task. They made basic decisions about which species to place in what places and what nature on Earth would look like. It is science fiction, of course, and a worst-case scenario. But our reality may not be far off. Anthropogenic climate change has altered both the distribution of plants and animals and the timing of seasonal phenomena in all well-studied species.401 Climate change also results in increases in natural disasters, including droughts, storms, and fires.402 These are virtually permanent changes with cas- cading effects on ecosystems.403 Permanently impacted ecosystems are the new normal. Consider the aforementioned temperature-driven 38% turnover in species in North and South America over the next ninety years404 and the loss of most coral reef ecosystems within one hundred years.405 Just in the State of Califor- nia, 82% of native fish species are highly vulnerable to climate change406 and 72% of state or federally listed bird species face moderate or high vulnerability.407 By 2070, more than half the state may host novel species assemblages, with native species missing and nonnative species taking their place.408 Globally, up to two-thirds of species will need migration assistance in the next three decades in order to survive.409 In mountain areas, existing climate change is forcing species turnover at an average rate of twelve percent per decade.410 “[A]round one million species already face extinction, many within decades, unless action is taken to reduce the intensity of drivers of biodiversity

401 See generally Camille Parmesan, Ecological and Evolutionary Responses to Recent Climate Change, 37 ANN. REV. ECOLOGY, EVOLUTION & SYSTEMATICS 637 (2006) (providing a detailed and well-documented discussion of climate change impacts across virtually all ecosystems). 402 Chelsea Harvey, Scientists Can Now Blame Individual Natural Disasters on Climate Change, SCI. AM. (Jan. 2, 2018), https://www.scientificamerican.com/article/scientists-can-now-blame- individual-natural-disasters-on-climate-change/ [https://perma.cc/5CDB-PG5F]. 403 See Yann Hautier et al., Anthropogenic Environmental Changes Affect Ecosystem Stability via Biodiversity, 348 SCIENCE 336, 336 (2015) (finding that “changes in biodiversity caused by drivers of environmental change may be a major factor determining how global environmental changes affect ecosystem stability”). 404 Lawler et al., supra note 53, at 591. 405 Biber, supra note 8, at 11. 406 Peter B. Moyle et al., Climate Change Vulnerability of Native and Alien Freshwater Fishes of California: A Systematic Assessment Approach, 8 PLOS ONE 1, 1 (2013). 407 Thomas Gardali et al., A Climate Change Vulnerability Assessment of California’s At-Risk Birds, 7 PLOS ONE 1, 6 (2012). 408 Diana Stralberg et al., Re-shuffling of Species with Climate Disruption: A No-Analog Future for California Birds?, 4 PLOS ONE 1, 3 (2009). 409 Camacho, supra note 10, at 181. 410 Daniel K. Gibson‐Reinemer et al., Climate Change Creates Rapid Species Turnover in Mon- tane Communities, 5 ECOLOGY & EVOLUTION 2340, 2340 (2015). 214 Boston College Law Review [Vol. 62:155

loss.”411 This extinction rate is one or two orders of magnitude higher than the average rate over the last ten million years.412 So, no, society is not faced with the challenge of rebuilding Earth’s ecosystems. But the challenge society does face is not far removed. We have the opportunity to guide ecosystems through the tremendous loss and reshuffling that is already happening, but doing so requires extensive guidance for managers as they decide which species to protect, in what places, and how the new ecosystems growing up in the Anthropocene will function. As this Article demonstrates, our Bambi law provides fairly limited legal signposts on this front. ESA signals an intent to protect the species facing extinction in their historical habitats.413 Most other federal environmental law generally sets substantive requirements only at the broad level, and these broad goals do not provide the detailed guidance that managers require.414 This lowers agency effectiveness, makes legal challenges difficult, and creates serious concerns about public input and control over these decisions.415 And, as noted, most federal laws with these substantive components for ecosystem management cover federal land, which is insufficient to the conservation challenges of the An- thropocene.416 State law often offers more substantive requirements for ecosystem management on state-administered public lands, as in the CBWA example, but these areas are geographically insufficient, covering both too few contigu- ous spaces and too little space overall. Managers are going to be making species by species determinations of what goes where, and these decisions will drive the management decisions that form our new ecosystems. As it stands now, they will be making these decisions largely outside of established governance systems. Each of the case studies highlights this problem. In each case, ecosystem reconciliation has taken place outside of traditional environmental law. In the case of the bay checkerspot butterfly, Dr. Weiss and his colleagues have used the ESA to build a tenuous structure for ecosystem reconciliation, but the Act as currently administered does not make this an easy process or a natural result.417 In Cheyenne Bottoms, little formal law drives management, and the

411 DÍAZ ET AL., supra note 21, at 3. 412 See Sandra Díaz et al., Pervasive Human-Driven Decline of Life on Earth Points to the Need for Transformative Change, 366 SCIENCE 1327, 1329 (2019) (“The number of species currently threatened with extinction is unprecedented in human history: an estimated 1 million species of animals and plants.”). 413 See supra notes 162–178 and accompanying text. 414 Palmer & Ruhl, supra note 88, at 514 (noting that federal statutes rely on “limited to unde- fined standards” that provide inadequate guidance in the restoration setting). 415 Id. 416 See supra notes 212–278 and accompanying text. 417 See supra notes 201–205 and accompanying text. 2021] Governing Nature 215

CBWA survives due to a unique coalition of shared interests that first pulled together in the 1930s and 1940s.418 And with respect to the American River, the Water Forum only emerged after decades of litigation, with little to show for the wasted years.419 The Water Forum grew in spite of the existing incentives for project by project planning and litigation, not because of some broad mandate for ecosystem reconciliation.420 As these examples show, accomplish- ing ecosystem reconciliation in the current legal landscape is tremendously difficult. We should do a better job of encouraging reconciliation through better ecosystem governance.421

2. We Cannot Avoid Tough Value Judgments The American River could, at this point, provide a home for most fish species native to North America.422 The dams give managers extensive control over the water flow and temperature. Engineering projects like the gravel placements give managers control over the shape and fluid dynamics of the river. The river is managed for steelhead and salmon right now, but what if we wanted catfish? Draw warm water from the tops of the upstream reservoirs, shape deep pools into the beds of the river, and add silt and fertilizer until the river starts to look like the Midwestern rivers that North American catfish prefer. Just add catfish.423 At first blush, questions about which ecosystems to preserve and what goals to set for ecosystem reconciliation look like questions about science, not values. This is easy to understand; “because such questions necessarily impli- cate and rely upon scientific analysis, such questions are perceived as ‘scientific’ by observers.”424 Portraying these decisions as technical lets political leaders avoid responsibility for unpopular decisions,425 lets advocates avoid

418 See supra notes 249–261 and accompanying text. 419 See supra notes 329–334 and accompanying text. 420 See supra notes 331–338 and accompanying text. 421 See infra notes 495–500 and accompanying text. 422 See infra note 423 and accompanying text. 423 See Flathead Catfish—Plyodictis Olivaris, U.S. DEP’T OF AGRIC., https://www.fs.usda.gov/ Internet/FSE_DOCUMENTS/fsbdev3_018530.pdf [https://perma.cc/HP23-47DR]. If this seems farfetched, consider Lake Casitas, an impoundment in southern California. Once an ephemeral mountain stream, the site is now a reservoir that produces some of the largest nonnative largemouth bass in the world. Pete Thomas, The Aces of Bass: At Lake Casitas, the Fish Are Big, as Are the Rivalries Among Fishermen, L.A. TIMES (Mar. 1, 1995), https://www.latimes.com/archives/la-xpm-1995-03- 01-sp-37452-story.html [https://perma.cc/EJV4-L7ZB]. 424 Jonathan H. Adler, The Science Charade in Species Conservation, 24 SUP. CT. ECON. REV. 109, 116 (2017). 425 Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 WASH. U. L.Q. 1029, 1038 (1997) (noting that such approaches “allow

216 Boston College Law Review [Vol. 62:155 making difficult, often personally painful decisions about what to save,426 and lets scientists and managers retain control over projects and minimize public input.427 Courts themselves reinforce this view, giving agencies a kind of “su- per-deference” for their scientific judgments.428 This is an example of the “science charade,” well documented in the environmental law literature, wherein tough policy decisions are cloaked in science to obfuscate meaningful deliberation or review.429 Despite arguments to the contrary,430 make no mistake— values govern. Although science must inform the conversation, science cannot provide the answers. Scientists will have to lay out options to help decision-makers understand the pros and cons of different approaches and to show what is and is not possible in a given place at a given time. But the range of possibilities is likely to be immense. Consider some of the questions posed in the restoration ecology literature: should ecosystems be restored to some historic state or to a new state that acknowledges human influences and future environmental change? If to a historic state, then to what state? Pre-European? Pre-indigenous peoples?431 “What or who is restoration for (anthropocentric or biocentric motives)?”432 politicians to evade difficult value choices, placing those choices instead in the hands of technical experts”). 426 See id. at 1134 (arguing that “[m]uch as we might prefer to avoid them, choices [about species conservation] will inevitably be made, and they cannot be made on the objective basis envisioned by advocates of ‘better’ scientific distinctions”). 427 Adler, supra note 424, at 118 (noting that “[t]he complex nature of many environmental policy decisions may make it difficult for a rationally ignorant lay public to understand the role that science does—or does not—play in particular decisions,” and that “[t]his problem is compounded by the tendency of scientists themselves to obscure the limits of scientific determinations” and citing several studies documenting this tendency). 428 Id. at 117 (citing Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 103 (1983)); see also Sara. A. Clark, Note, Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?, 36 ECOLOGY L.Q. 317 (2009). 429 Adler, supra note 424, at 109; see also Wendy E. Wagner, The Science Charade in Toxic Risk Regulation, 95 COLUM. L. REV. 1613, 1617 (1995) (addressing “why past science-based regulatory strategies have failed . . . by positing that these past failures are at least partly attributable to a pervasive ‘science charade,’ where agencies exaggerate the contributions made by science in setting toxic standards in order to avoid accountability for the underlying policy decisions”). 430 See Jan G. Laitos, How Science Has Influenced, but Should Now Determine, Environmental Policy, 43 WM. & MARY ENV’T L. & POL’Y REV. 759, 759 (2019) (“[H]umans, and law-makers, should embrace a different role for science. Instead of science answering ‘what is’ questions, it should also explain the universal laws of the natural environment, so environmental laws can be consistent with those fundamental natural laws.”). 431 See Adler, supra note 381, at 70 (noting, for example, that if the goal is to restore ecosystems to the state they were in “[b]efore the ancestors of the Native American Tribes crossed the Bering land bridge . . . [surrogate] species like wild horses and burros have no place on those portions of the western range that are set aside for natural ecological restoration”). 432 Higgs, supra note 90, at 345. 2021] Governing Nature 217

How much management is permissible or affordable or sustainable in restored systems? Do longstanding cultural practices (e.g., hunting, fishing, agriculture, or burning) have a place in restored systems? Do aesthetics matter?433 How much uncertainty about success is too much? What aspects (e.g., species, functions, and services) of the ecosystem are most important to protect or restore? When are economic or social costs of restoration too high? “How do we balance competing desires for ecosystems to be restored to a historical state or for intrinsic values versus managed to provide currently desired goods and services?”434 As a recent National Academy of Science book recognizes, “[T]he choices are political, social, cultural, and economic, at least as much as they are scientific and technical.”435 Some restoration ecology literature still places these decisions in the hands of managers and scientists, implicitly endorsing the view that science has primacy in making environmental decisions,436 but much of the science literature now seems to recognize that “[e]cological restoration requires value‐laden choices about what goals, references, and methods to use in a particular area.”437 In its definitive publication on public participation in environmental decision-making, the National Research Council reported that “the environmental problems of the 21st century can be effectively addressed only by processes that link sound scientific analysis with effective public deliberation,”438 and concluded: When done well, public participation improves the quality and legitimacy of a decision and builds the capacity of all involved to engage in the policy process. It can lead to better results in terms of environmental quality and other social objectives. It also can enhance trust and understanding among parties.439

433 See id. at 345–46 (questioning how seriously aesthetic considerations should be taken in ecosystem restoration given how important aesthetic considerations are to “people’s appreciation of nature”). 434 Kristin B. Hulvey et al., Incorporating Novel Ecosystems into Management Frameworks, in NOVEL ECOSYSTEMS: INTERVENING IN THE NEW ECOLOGICAL WORLD ORDER 159 (Richard J. Hobbs et al. eds., 2013). 435 DIETZ & STERN, supra note 353, at 7–8. 436 See, e.g., Tein McDonald et al., SOC’Y FOR ECOLOGICAL RESTORATION, INTERNATIONAL STANDARDS FOR THE PRACTICE OF ECOLOGICAL RESTORATION—INCLUDING PRINCIPLES AND KEY CONCEPTS 8, 22–23 (2016) (recognizing that “[r]estoration is undertaken not only to restore environmental values but also to satisfy socioeconomic and cultural values, needs and expectations” but suggesting that managers ultimately make determinations about appropriate restoration targets). 437 Iris M. Hertog & Esther Turnhout, Ideals and Pragmatism in the Justification of Ecological Restoration, 26 RESTORATION ECOLOGY 1221, 1221 (2018). 438 DIETZ & STERN, supra note 353, at vii. 439 Id. at 2. 218 Boston College Law Review [Vol. 62:155

The legal literature also reflects a growing consensus that the core environmental questions society will face actually concern values, not science.440 Some of this literature highlights the need for an improved decision-making regime that centers these values-based decisions in a democratic way and does not pass them off to technocrats.441 Public participation may not lead to easy, consensus-based solutions, but it must be a part of setting goals for reconciliation.442 The environmental law literature is wrestling with the problem of ecosystem governance in the Anthropocene, often called new governance. The new governance literature already lays out myriad requirements for successful governance in the Anthropocene. These include adaptability,443 resiliency,444 broad public participation (perhaps collaborative),445 polycentricity with “nested scales of governance” (both temporally and spatially),446 with “specific substantive goals.”447 These new governance themes are well explored by other authors.448

440 See Arnold, supra note 23, at 462 (stressing that management “plans should be based not only on science but also on public values and norms”); Camacho, supra note 10, at 171 (concluding that “the fundamental tensions raised by [assisted migration] are ethical”); Keiter, supra note 14, at 1162 (“We now understand that resource allocation decisions are as much about value judgments as scientific fact.”). 441 See Adler, supra note 381, at 57, 104 (“[V]ery fundamental value choices [in restoration] . . . are not always addressed or resolved in a sufficiently democratic fashion under the current legal regime. . . . We need a more effective way to make these difficult choices among values.”); Arnold, supra note 23, at 462 (“The planning process will require soft methods for translating social values and risk choices into policies and plans for a desired future or set of possible futures that are desired or acceptable.”). 442 Yung et al., supra note 122, at 247, 255 (“[W]e want to caution against a naïve or overly optimistic view of public involvement. . . . Public engagement can, at times, increase conflict and controversy, and delay already difficult decisions. Deliberation does not always lead to consensus . . . .”). 443 See Craig, supra note 22, at 9 (“The time to start preparing for [environmental] changes is now, by making adaptation part of a national climate change policy.”). 444 See Garmestani & Benson, supra note 110, at 9 (summarizing the elements necessary for the integration of resilience science in governance, “i.e., panarchy, adaptive management, and adaptive governance”). 445 See Keiter, supra note 14, at 1215 (“On the procedural front, the trend in public land policy has been toward increased public engagement and agency accountability in recognition of the value- laden nature of most resource allocation decisions. . . . To ensure fairness, adequate provisions must be made for transparent planning and decision processes, which afford all interested parties an opportunity to participate on equal terms.”); Wiersema, supra note 109, at 1294–96 (discussing the need for more specific goals in ecosystem management and the importance of “broad stakeholder participation” in setting these goals). 446 See Wiersema, supra note 109, at 1264 (“One of the main lessons to be learned from ecology . . . is the emphasis on nested scales of governance, both temporal and spatial. Temporally, this means that protection decisions must be made with regard to the long-term . . . . Spatially, we must pay attention to all levels of activity . . . .”); see also J.B. Ruhl, Panarchy and the Law, 17 ECOLOGY & SOC’Y 31, 32 (2012) (discussing panarchy, which “is largely a call for the multi-scalar use of adaptive management in environmental and natural resources policy”). 447 See Wiersema, supra note 109, at 1300 (“[I]n order to ensure effective conservation, the pro- cedures [for designing ecosystem management policies] must have sufficiently specific substantive goals to guide their activity and . . . be embedded in law.”). 2021] Governing Nature 219

We even have some common principles for ecosystem management: “(1) social- ly defined goals and objectives, (2) holistic, integrated science, (3) adaptable institutions, and (4) collaborative decision making.”449 But, as a whole, the literature still underestimates the challenge we face. And this then is the core lesson from these case studies: environmental law must embrace reconciliation, and reconciliation requires far more and better governance than our current system can deliver. Other work has proposed a potential structure for this level of governance, at least for freshwater ecosystems in California, based on federal and state clean water laws and other authority.450 Rather than proposing a general structure for ecosystem governance, this Article concludes by highlighting three characteristics that any good governance structure must have, drawn in part from the case studies and their strengths and weaknesses.451

B. Governing for Ecosystem Reconciliation This Section provides suggestions for a governance structure that would support ecosystem reconciliation. Subsection 1 argues that ecosystem management must be governed by local entities.452 Subsection 2 reiterates that in order to adequately manage existing ecosystems, we must abandon our Bambi view of nature.453 Subsection 3 argues that to make these changes, our new approach to environmental law must incentivize regulatory changes.454 Lastly, subsection 4 argues that humility will be essential to future environmental management.455

448 See Robin Kundis Craig & Melinda Harm Benson, Replacing Sustainability, 46 AKRON L. REV. 841, 844 (2013) (“[F]rom a policy perspective, we must face the impossibility of even defining—let alone pursuing—a goal of ‘sustainability’. . . . Instead, we need new policy directions and orientations that provide the necessary capacity to deal with these ‘wicked problems’ in a meaningful and equitable way.”); J.B. Ruhl, General Design Principles for Resilience and Adaptive Capacity in Legal Systems—With Applications to Climate Change Adaptation, 89 N.C. L. REV. 1373, 1373 (2011) (“[f]using” the concepts of resilience and adaptive management theory and arguing “that climate change adaptation law should draw from theories of adaptive management, dynamic federalism, new governance, and transgovernmental networks”). 449 Nie, supra note 338, at 73. 450 See generally MOUNT ET AL., supra note 183, at 3 (proposing “a shift in the way [state and federal ESAs] are implemented” in California); Gray et al., supra note 68, at 1 (discussing the legal foundations for “a new management strategy that would facilitate integrated and holistic management of California’s freshwater resources based on ecosystem structure and function.”). 451 See infra notes 456–527 and accompanying text. 452 See infra notes 456–464 and accompanying text. 453 See infra notes 465–494 and accompanying text. 454 See infra notes 495–500 and accompanying text. 455 See infra notes 501–527 and accompanying text. 220 Boston College Law Review [Vol. 62:155

1. Governance Must Be Local In many ways, the three case study ecosystems are better prepared for the Anthropocene than most ecosystems, in that people are already paying attention to them and managing for particular outcomes.456 The vast majority of ecosystems have no such apparatus. The case study ecosystems are under active management either because of listed species (e.g., the Serpentine soils ecosystem and the American River) or because they provide natural resources of high social value (e.g., CBWA and the American River). Other ecosystems currently under management generally occur on state or federal land or are involved in some kind of permitting mitigation program.457 But in the Anthro- pocene, the need for ecosystem management will extend far beyond those places that happen to host a listed species or happen to be located on federal land or involved in a mitigation-for-permits swap. Changing conditions will affect nearly every ecosystem worldwide, and society must determine what aspects of which systems it is willing to protect. In the United States, ESA listed species mark one such determination, but that limited front is too narrow. Beyond their limited geographic scope, current management efforts are also too general to provide adequate guidance for managers in the Anthropo- cene. Ideally, “[l]aw plays a critical role in the implementation of restoration science because it is through the mechanisms of law that we individually and collectively decide how our landscapes should function and which species, ecological processes, and geographical features will survive from generation- to-generation.”458 But laws that make these decisions in generic terms, such as “healthy” or “resilient,” fail for a lack of specificity. These are preconditions for success, but as others have suggested, using these kinds of generalities leaves the core decisions about ecosystems essentially unfettered. We need to be thinking about these decisions down to the species level in order to make meaningful decisions about what we protect.459 Certainly, that kind of specificity cannot come at the level of federal legislation and is unlikely to come at the level of broad state legislation. In many ways, these are local decisions, and they should be hashed out at that level. This could occur through broadly democratic processes or through decisions at the local level by administrative bodies tasked with developing and responding

456 See supra notes 130–376 and accompanying text. 457 See generally supra notes 120–397 and accompanying text. 458 Telesetsky, supra note 106, at 496. 459 See Houck, supra note 160, at 975–76 (arguing that even ecosystem protection must be meas- ured by species outcomes because “if we want to impose a measure of restraint on our own behavior we will find ourselves looking to the objective, quantifiable needs of [particular species,] [n]ot because they are the desired result, but because they are an effective mechanism for conservation and change”). 2021] Governing Nature 221

to public discourse about local ecosystems, but in any case it must include public discussion and local decisions.460 Local decision-making offers many advantages and falls in the best tradi- tions of civic republicanism.461 Local decision-making may cut against the broad coordination that ecosystem management requires, both to ensure protection of different kinds of habitats and for species that require much larger ranges than a local government could address, but this could be addressed through the cooperative federalism model already employed in other environmental law contexts.462 Professor Keiter suggested this in his public lands paper: This may suggest a way out of the federalism conundrum: establish definitive federal management standards, but permit local flexibility in how these standards are met, thus promoting shared responsibility for resource planning and other decisions. While perhaps not a complete panacea for today’s controversies, such a cooperative federalism approach could mitigate the tension while clarifying the national-local relationship.463 In any case, local approaches will be key because they provide an insid- er’s knowledge about the land, because local approaches are likely to better recognize constraints and opportunities, but most of all because the kind of guidance required in the Anthropocene is itself detailed and local.464

2. We Must Replace Our Bambi Worldview Local ecosystem management seems to be part of the answer, but figuring out what we want our ecosystems to be still will be difficult.465 This difficultly

460 Camacho, supra note 10, at 248. (“[C]limate change . . . necessitates an inclusive public discussion over the appropriate accommodation of these many unresolved economic, aesthetic, historic, and ecological values.”). 461 See generally DANIEL KEMMIS, COMMUNITY AND THE POLITICS OF PLACE 99–108 (1990) (advocating for localized economic decision-making in order to address environmental disputes in the state of Montana); Keiter, supra note 14, at 1178 (“Civic republicanism posits that government decisions made through open, local deliberative processes will tend inherently to accentuate public rather than private interests, and thus result in more public-spirited and better-accepted policies.”). 462 See Wiersema, supra note 109, at 1253–55 (discussing a management ideology focused on “more flexible, less hierarchical approaches [to ecosystem regulation], with a strong emphasis on collaboration and a mix of private and public actors”); see also Ruhl, supra note 446, at 32 (“call[ing] for the multiscalar use of adaptive management in environmental and natural resources policy”). 463 Keiter, supra note 14, at 1214. 464 Keith Hirokawa, Environmental Law from the Inside: Local Perspective, Local Potential, 47 ENV’T L. REP. NEWS & ANALYSIS 11048, 11048 (2017); Salcido, supra note 16, at 1120. 465 See infra notes 466–494 and accompanying text. 222 Boston College Law Review [Vol. 62:155 stems in part from our Bambi view of the world, which is based on the assumption that nature does best when left alone—the balance of nature myth.466 The move away from the balance of nature myth in scientific circles is practically ancient history at this point, since it took place within the science community nearly thirty-five years ago.467 But the balance of nature view will not go away.468 The shift has failed to penetrate much beyond the academic world. News media,469 popular culture,470 and even science education471 continue to perpetuate the balance of nature myth.472 Many state and local science standards include the balance of nature concept as a key learning objective.473 The continuing subscription to the balance of nature myth is not harm- less—it leads to moral misjudgments about humanity’s role in nature and mis- conceptions about successful approaches to environmental protection.474 Both of these enduring legacies serve as barriers to successful ecosystem reconciliation. What explains the myth’s longevity? Perhaps, in some ways, it has been useful. As Professor Al Lin argues, “The myths of environmental law facilitate the management of ecologically complex systems by providing a reductionist account of them . . . [and] serve important expressive functions in communi-

466 See supra note 55 and accompanying text. 467 See supra note 56 and accompanying text. 468 Cf. Melinda Harm Benson, Reconceptualizing Environmental Challenges—Is Resilience the New Narrative?, 21 J. ENV’T & SUSTAINABILITY L. 99, 112 (2015) (noting “as a culture, we still embrace this [stationarity] narrative”). 469 Tasos Hovardas & Konstantinos Korfiatis, Towards a Critical Re-appraisal of Ecology Edu- cation: Scheduling an Educational Intervention to Revisit the ‘Balance of Nature’ Metaphor, 20 SCI. & EDUC. 1039, 1044 (2011) (noting that “there has been virtually no use of th[e flux description] outside the scientific community, for instance in the news media”). 470 Georgios Ampatzidis & Marida Ergazaki, Toward an “Anti-Balance of Nature” Learning En- vironment for Non-Biology Major Students: Learning Objectives and Design Criteria, 46 NAT. SCIS. EDUC. 1, 1 (2017) (“[T]he [Balance of Nature] idea seems to be well established in popular culture, school science, and students’ reasoning about how ecosystems cope with human-driven disturbance or protection.” (citations omitted)). 471 See id. (referring to a study that suggests that “students consider balance as a normal or natural state for the ecosystems, whereas its loss as a major threat for the ecosystems’ existence”); see also Kathryn M. Flinn, Is There Really Balance in Nature?, CHRON. HIGHER EDUC. (Nov. 8, 2015), https://www.chronicle.com/article/There-Is-No-Balance-of/234057#comments-anchor [https://perma. cc/36F7-V25K] (“The ‘balance of nature’ pervades science reporting from NPR to The New York Times.”); Tom Jacobs, Belief in ‘Balance of Nature’ Hard to Shake, PAC. STANDARD (Dec. 27, 2007), https://psmag.com/environment/belief-in-balance-of-nature-hard-to-shake-4785 [https://perma.cc/ 6MJW-VEH3] (discussing the findings of a researcher who studied the prevalence and influence of the “balance of nature” myth among science majors and the general population of two large universi- ties). 472 Hovardas & Korfiatis, supra note 469, at 1044. “The public representation of conservation is still lagging far behind ecological advances and is centered on simplistic messages of preventing change in order to preserve nature’s fragile balance.” Id. (citation omitted). 473 Jacobs, supra note 471. 474 Hovardas & Korfiatis, supra note 469, at 1040. 2021] Governing Nature 223

cating social attitudes and values, legitimating social institutions and practices, and maintaining social solidarity.”475 In fact, the balance of nature myth may be a key part of the success of modern environmental law. “[I]t is important to remember that the laws in which environmental myths are embedded have dramatically reduced pollution, improved environmental quality, and protected valued resources.”476 Or, perhaps just as the term pollution seeks to draw boundaries between permissible and impermissible human emissions into the environment,477 the “balance” terminology merely reflects an effort to wall off some activities as too unsettling to permit. “Throughout its history, and across the globe, environmental conservation has been motivated by a wide range of ethical, utilitar- ian, aesthetic, and economic concerns.”478 To some extent, the balance of nature myth may have allowed people to make a snap judgment about what they wanted to protect without considering the deeper concerns, but if so, we should find less freighted terminology to convey that meaning. The concept has too much baggage to continue playing that role. Continued adherence to the myth is harmful. Under the balance of nature view, even badly degraded ecosystems can bring themselves back to their orig- inal state, given time, space, and peace. For many, this myth informs both moral and practical understandings of environmental protection; that is, the myth explains both what we should do and how we should do it. On the moral front, the balance of nature myth values untouched nature and inherently devalues nature where humans have left their mark.479 The moral implications of this view are clear—nature should be left alone. Where we have disturbed nature and wish to restore it, we should restore it to an undisturbed state. Human influences degrade natural systems. This moral view plays out in many ways in our environmental laws, including our tendency to assume

475 Lin, supra note 396, at 45. 476 Id. at 46. 477 Kysar, supra note 11, at 2058 (arguing that “the word pollution has always been used in a moralized sense to denote those activities that should be treated by a political community as defiling or desecrating, and hence restricted”). Kysar suggests that many terms today that indicate a human/nature divide “continue this tradition, standing in for a complex value assessment regarding the pace and direction of human activity, rather than strictly for a claim about the actual condition of the physical world.” Id. at 2059. 478 Daniel F. Doak et al., What Is the Future of Conservation?, in PROTECTING THE WILD: PARKS AND WILDERNESS, THE FOUNDATION FOR CONSERVATION 27 (George Wuerthner et al. eds., 2015). 479 See, e.g., Worster, supra note 57, at 2 (noting that ecologists have historically emphasized “restoring the biological order, maintaining the health of the land and thereby the well-being of the nation”). 224 Boston College Law Review [Vol. 62:155

that nonnative species should be eliminated from ecosystems,480 that human- created habitat should receive less protection than natural habitat,481 and that human interventions like assisted migration are inherently negative.482 On the practical side, the balance of nature myth leads people to overestimate an ecosystem’s ability to restore itself after perturbations, even when those perturbations would, in truth, permanently alter the ecosystem.483 For example, a broad adherence to the balance myth “may be hindering our ability to intelligently consider the consequences of climate change.”484 This belief persists in the face of undergraduate level science courses and even courses focused specifically on ecology.485 The balance myth and its Bambi worldview, then, present an intellectually easy approach to conservation that short circuits real consideration of humanity’s role in managing nature. Determining humanity’s role in managing nature without falling back on the balance of nature myth as a moral or practical framework is daunting, but it is the only reasonable path forward in our Wall-E world. But moving away from a Bambi view of conservation is a fraught en- deavor. If management does not default to chasing historic baselines and instead becomes a more explicit values-based decision, it may mean less attention for conservation and more for short-term resource extraction, with negative long-term environmental impacts. Avoiding these outcomes will require strong substantive state and federal law that cabins management decisions, but improving public knowledge of the challenges and values at play in ecosystem management should also improve decision-making. Moving away from historic baselines does raise risks. A focus on tangible benefits, higher value commodities, and aesthetics (i.e., a preference for iconic landscapes and charismatic megafauna) is probably impossible to avoid.486

480 See Bork, supra note 374, at 169 (examining the “management of nonnative species to illustrate the problems with using the false dichotomy between nature and humanity to determine what is environmentally good or environmentally bad”). 481 See Salcido & Bork, supra note 65, at 415 (discussing a rule “defining the jurisdiction of the Clean Water Act” that “explicitly excludes many manmade environments [from protection]”). 482 See Camacho, supra note 10, at 176 (explaining that “assisted migration is controversial because it challenges foundational tenets of conservation law and ethics that seek to preserve and restore preexisting biological systems and shield them from human interference”). 483 See Marida Ergazaki & Georgios Ampatzidis, Students’ Reasoning About the Future of Dis- turbed or Protected Ecosystems & the Idea of the “Balance of Nature,” 42 RSCH. SCI. EDUC. 511, 511 (2012) (studying student perceptions of nature and finding that students were confident that if ecosystems were protected by humans, they would remain “in a continuous ‘balance’”). 484 Jacobs, supra note 471. 485 Corinne Zimmerman & Kim Cuddington, Ambiguous, Circular and Polysemous: Students’ Defi- nitions of the “Balance of Nature” Metaphor, 16 PUB. UNDERSTANDING SCI. 393, 393, 404 (2007). 486 See Camacho, supra note 10, at 245–47 (noting that “a more forward-looking baseline that removes preservation as a primary goal increases opportunities for more tangible and more easily priced consumptive uses to be given precedence” and discussing the influence of such uses). 2021] Governing Nature 225

Recognizing new ecosystems in new places and in new configurations that accommodate human changes “may also legitimize the tendency of society to ignore long-term environmental and ecological negative impacts.”487 To reiter- ate, this is a managed retreat for environmentalists.488 It is a managed retreat, at least in the sense that acknowledging the changing ecosystem filters worldwide means that not everything everywhere can be saved, that resources should be prioritized for work in places where that work is more likely to succeed, and that our nature is going to be something with a heav- ier human touch. Reconciliation ecology and its siblings “should not distract attention from the immediate need to protect and restore remaining large tracts of relatively undisturbed wildlands on continents.”489 Certainly Bambi conservation likely still has a role in some places, and most management will fall on a continuum between a hands-off Bambi approach and the total reconstruction that a Wall-E world would require. But conserving those isolated tracts is not enough, and ecosystems in those tracts will change in the near future, requiring continuing, active management to maintain the very aspects that we want to conserve. And, perhaps more poignantly, reconciliation ecology and broader ecosystem management gives us hope for the places that are not “large tracts of relatively undisturbed wildlands,” which is, at this point, most places. To make this tradeoff work, “natural resource governance must . . . inform not only natural resource managers but also the public at large.”490 The public, in this view, includes both the lay public and the courts and agencies and political leaders.491 Education should encompass both the value of unique biodiversity and the human-serving benefits of ecosystems, like ecosystem services. “Because people often fail to connect their wellbeing to ecosystem conditions, there is a need to build public awareness about this linkage before we can expect the public to hold decision-makers accountable.”492 More broadly, education during the deliberative process should also help the public to understand the implications of the Anthropocene for the region. Knowing how conditions will change, what those changes will mean for species and ecosystems in the region, and which species that are in trouble in other areas may be able to survive in the changed conditions will enable productive deliberation. Decision-makers should also look to the traditional ecological knowledge in

487 Murcia et al., supra note 16, at 551. 488 See id. (discussing whether the new ecologies are “against traditional conservation approaches; . . . a suggestion that traditional restoration is no longer relevant; [or] an argument for ‘giving up’”). 489 Kueffer & Kaiser-Bunbury, supra note 25, at 136. 490 Camacho, supra note 10, at 254. 491 Id. at 254–55. 492 Hirokawa, supra note 464, at 11062 (quoting Emily McKenzie et al., Incorporating Ecosystem Services in Decisions, in NATURAL CAPITAL: THEORY AND PRACTICE OF MAPPING ECOSYSTEM SER- VICES 339, 344 (Peter Kareiva et al. eds., 2011)). 226 Boston College Law Review [Vol. 62:155

indigenous communities for guidance on how to live with nature in human- dominated environments.493 And the educational aspects of the deliberative process will have to be supported by strong and ongoing science to account for continually changing conditions.494

3. We Must Incentivize Regulatory Realignment Many of our existing regulatory structures will have to change to permit creative solutions.495 All is not lost. Many species will be able to live in new places, far from their current homes, but they will need help to get there, which is difficult under current interpretations of the ESA. We will be able to protect some places, to maintain desired species and iconic ecosystems, through her- culean feats of management and engineering, although this may require giving up other places almost entirely, which is, again, difficult under existing law. Perhaps society should, for example, have some rivers that are specialized for the protection and production of native species, while more marginal habitats get much less investment or serve other purposes. “[B]iodiversity conservation can be improved by embracing a multipronged approach, including: conserving relicts of historical biodiversity, creating artificial biodiversity conservation areas, co-opting novel ecosystems and their opportunistic biodiversity as a fundamental part of biodiversity conservation, and coproducing biodiversity in cultural landscapes.”496 But this is nearly impossible under the regulatory approaches to current environmental laws. We must build a governance system that creates the incentives necessary to change the existing interpretations of environmental law. Some environmental laws will themselves have to change, but in the existing political landscape it seems unlikely they will change in the near term, and even more unlikely they will change in a way that promotes conservation. But there is flexibility in existing environmental law. As I have noted else- where, administrative law responds to political pressures, to social demands,

493 See, e.g., Greta Swanson et al., Traditional Ecological Knowledge in Environmental Deci- sionmaking, 49 ENV’T L. REP. NEWS & ANALYSIS 10309, 10309 (2019) (providing a transcript of a panel discussion about “the challenges that indigenous peoples face in defending the legitimacy of, and intellectual property in, [traditional ecological knowledge (TEK)—the understanding of the environment developed by local communities and indigenous peoples]; how policy-makers can modify existing laws and regulations to better incorporate TEK; and the potential for TEK to meet today’s most pressing environmental challenges”). 494 See Craig, supra note 22, at 40–43 (discussing why “Principle #1 for climate change adaptation law should be to increase requirements and funding for continual monitoring and basic scientific and economic research to promote understanding of climate change impacts at all scales and across sectors”). 495 See supra notes 400–421 and accompanying text. 496 See Kueffer & Kaiser-Bunbury, supra note 25, at 136. 2021] Governing Nature 227

and to changing science, among other pressures, by evolving based on creative new interpretations for existing law.497 For example, in the mid-1990s, pressure from private property advocates and new science led FWS to create the Safe Harbor Program out of whole cloth.498 Clearly, given the right pressures, agencies can change environmental laws to make creative conservation possible. The challenge will be building a system for ecosystem management that will create incentives for management entities, whatever form they may take, to lean hard on FWS and other agencies to permit the kinds of actions that will be required. Professor Colburn offers some hope on this front. He believes that local municipalities may compete to provide residents with valuable natural ameni- ties, which could lead to improved environmental conditions.499 Competition between local entities would make these entities more likely to push agencies to permit more creative environmental approaches. Local control, properly enabled, may increase competitiveness in the “conservation market,” with the benefit of creating pressure on administrative agencies to broaden their interpretation of existing laws. Other changes could alter incentives. For example, environmental litigation may be cheaper than protracted negotiation for collaborative decision- making, given that successful litigation can come with fee recovery. If collaborative decision-making actually results in decisions with staying power that can help agencies avoid losing litigation, perhaps agencies should incentivize participation in collaborative decision-making through financial assistance.500

4. We Must Be Humble Ultimately, our control of nature is limited.501 Our knowledge of how ecosystems work, of how they will react to the Anthropocene, and of how to maintain desired species is limited. Our ability and willingness to reign in the drivers of the Anthropocene and other, non-anthropocentric processes is limited. Our funds and willingness to manage ecosystems are limited. We cannot

497 See generally Karrigan S. Bork, An Evolutionary Theory of Administrative Law, 72 SMU L. REV. 81, 81 (2019) (arguing that administrative agencies alter the meaning of laws via administrative legal change based on “three case studies that demonstrate the administrative evolution of the Endan- gered Species Act”). 498 Id. at 116. 499 See generally Jamison E. Colburn, Localism’s Ecology: Protecting and Restoring Habitat in the Suburban Nation, 33 ECOLOGY L.Q. 945 (2006). This view suggests there is “something deeply unrealistic about government pushing top-down ‘coordination’ on actors who are proprietary competitors.” Id. at 989. 500 See supra notes 498–499 and accompanying text. 501 See supra notes 401–408 and accompanying text. 228 Boston College Law Review [Vol. 62:155

manage everything, and we should not try. We must approach nature with humility. The late Professor John Nagle suggested: Humility may seem like an especially odd characteristic of environmental law. Identifying and mandating the ideal natural environment is hardly a humble task. Yet . . . [t]he mysteries of the world and our stumbling efforts to control it provoke environmental humility; the legacy of failed efforts to employ the law to achieve contest- ed social goals counsels legal humility.502 Humility seems especially odd in a discussion of ecosystem reconciliation, which is all about managing nature in ways that make sense given the current environmental conditions, even if it falls outside historic norms. But humility is especially key in this setting, where both the stakes and the likeli- hood of missteps are high. There is a natural tendency to push back against humility and assume or desire a greater degree of control over nature. Author John McPhee noted this in his book Control of Nature, observing that before construction of the flood control infrastructure on the Mississippi River, people who suffered through floods blamed nature or God for the vagaries of life.503 After the Army Corps of Engineers built the flood control infrastructure, people suffering floods blamed the Army Corps, which in turn pushed the Corps to exert ever greater control.504 Optimizing management for particular species “can become controversial and contentious. State and federal fish and wildlife agencies may be pressured to gain more control over the water regime to satisfy constituents who see reduced wildlife populations on a favorite area in a given year as a failure of the agency or local manager.”505 But giving in to these tendencies is counterproductive.506 As illustrated in all three case studies, the harder society holds on to particular goals, the more likely failure becomes. In each case study, humans have dramatically reduced the amount of habitat available for the ecosystem we seek to protect, which means conditions

502 Nagle, supra note 24, at 336. 503 JOHN MCPHEE, CONTROL OF NATURE 76 (1989). 504 Id. 505 Richard E. Sparks, Need for Ecosystem Management of Large Rivers and Their Floodplains, 45 BIOSCIENCE 168, 174–75 (1995). 506 See, e.g., Per Olsson et al., Shooting the Rapids: Navigating Transitions to Adaptive Govern- ance of Social-Ecological Systems, 11 ECOLOGY & SOC’Y 18, 18 (2006) (“Many ongoing governance and management approaches to [social ecological systems] attempt to control key ecosystem variables in their efforts to deliver efficiency, reliability, and optimality of ecosystem goods and services. How- ever, approaches that seek to stabilize a set of desirable goods and services ultimately increase the vulnerability of the system to unexpected change.” (citation omitted)). 2021] Governing Nature 229

must be perfect in the little space we have left. In some ways, our power over ecosystems is at once too much and too little. Most years, we can achieve the perfect conditions, or at least something close, and the ecosystem can survive. But this is a false, brittle success. Nature is endlessly variable, and a vision of success that requires maintaining those specific conditions eventually will fail. Drought both completely dried up Cheyenne Bottoms and completely flooded it within a three-year span.507 Poor conditions during a drought on the Ameri- can River made the river uninhabitable for salmon and steelhead.508 And an unusually intense fire season could destroy most of the bay checkerspot butterfly’s habitat.509 In spite of their successes, each of these systems is constantly on the brink of disaster. Ecosystem protection based on keeping things just right in one location forever is hubris and is destined for failure. Instead, humility counsels leaving space for nature. Leaving space for nature means, to the extent possible, allowing natural processes to function without ongoing human management and allowing development of new ecosystems with new species that do not require ongoing inputs. Giving ecosystems space and time to develop their own dynamics, like local adaptation, population structures, and biogeochemical cycles recognizes the limits of both human knowledge and wherewithal in ecosystem management. This idea is in tension with the need to manage many systems to achieve desirable outcomes, and this tension is difficult to resolve, but several factors indicate the need to find a balance. Long-term management is expensive and consumes resources and human capital. Many human solutions to ecosystems’ problems, like hatcheries or predator control, produce short-term positive outcomes but reduce the viability of the species we are seeking to support in the long run. And short-term management encourages us to hold on to goals that are increasingly impossible to achieve in the Anthropocene. We can achieve the necessary balance by undertaking interventions with the goal of producing self-sustaining systems, or at least systems that require less intervention in the long run. For a place like Cheyenne Bottoms, that approach counsels attempting to relieve the CBWA of the pressure of being a perfect habitat every year. This might require, for example, creating other refuges in the broader region that may offer better conditions when the CBWA gets too much or too little water in a given year. By giving wetlands a little more space in western Kansas, the state could reduce management costs at Cheyenne Bottoms and provide myriad wildlife benefits. This would likely

507 Supra note 218 and accompanying text. 508 Supra notes 360–367 and accompanying text. 509 See Species Information: Bay Checkerspot Butterfly, FWS (Apr. 4, 2018), https://www.fws.gov/ sacramento/es_species/Accounts/Invertebrates/bay_checkerspot_butterly/ [https://perma.cc/HGK2- ZUYZ] (noting that fire presents a threat to the bay checkerspot butterfly). 230 Boston College Law Review [Vol. 62:155

engender social pressures from communities near the CBWA when it has failed to produce the desired outcomes in a given year, but it also would spread the beneficial aspects of having a wetland nearby more widely across the state. Giving nature more time and space mitigates management costs, creates resilient systems, and reduces the pressure for managers to get it exactly right. The American River provides a similar example. The situation on the American River—very small amounts of available habitat augmented by large scale hatchery production—reflects a long-held belief that fish hatcheries can make up for lost fish habitat.510 Trading habitat for hatcheries allowed decision-makers to justify construction of so many dams that the vast majority of natural salmon habitat on the West Coast of the United States has been eliminated.511 The decision to build these dams was based in part on the belief that hatcheries could sustain the salmon, so society has never really weighed the true consequences of dam construction.512 But it is now clear that hatcheries cannot adequately replace habitat. As Professor Paul Kibel explains, “[T]he ‘replacement assumption’—the premise that serious efforts to maintain the natural habitat that wild fisheries require to survive are not needed because the wild fish can be replaced with fish artificially propagated in hatcheries” is faulty.513 He elaborates: [T]he total abundance of salmon declined at the same time the prop- agation and release of hatchery salmon has expanded. Given this experience, fishery biologists working on west coast salmon are now increasingly rejecting the replacement assumption and calling for conservation efforts to refocus on natural habitat to restore wild salmon population.514

510 See generally Michael C. Blumm, Salmon Hatcheries as Fish Factories: Forgetting the Les- sons of Leopold, 4 SEATTLE J. ENV’T L. 409, 410 (2014) (reviewing a book about salmon recovery and discussing “the adverse effects of salmon hatcheries on wild stocks of salmon”); Desmon J. Maynard & Joan G. Trial, The Use of Hatchery Technology for the Conservation of Pacific and Atlan- tic Salmon, 24 REV. FISH BIOLOGY FISHERIES 803, 804, 815 (2014) (providing an overview of how the use of hatchery technology in the United States has changed over time). 511 NMFS, FACTORS CONTRIBUTING TO THE DECLINE OF CHINOOK SALMON: AN ADDENDUM TO THE 1996 WEST COAST STEELHEAD FACTORS FOR DECLINE REPORT 6 (1998), http://www.krisweb. com/biblio/gen_nmfs_nmfs_1998_chinffd.pdf [https://perma.cc/32HF-2W96]. 512 See Paul Stanton Kibel, Of Hatcheries and Habitat: Old and New Conservation Assumptions in the Pacific Salmon Treaty, 10 WASH. J. ENV’T L. & POL’Y 90, 103–05 (2020) (discussing the strategies underlying the construction of large on-stream dams built in the Pacific Northwest between 1930 and 1970). 513 Paul Stanton Kibel, Salmon Lessons for the Delta Smelt: Unjustified Reliance on Hatcheries in the USFWS October 2019 Biological Opinion, 47 ECOLOGY L. CURRENTS 209, 211 (2020). 514 Id. 2021] Governing Nature 231

Considering just the American River, fall-run Chinook numbers on the American River were very high in the early 2000s, well north of 100,000 fish and peaking at almost 180,000 fish in 2003.515 Since then, the fish numbers have plummeted to a low of just under six thousand fish in 2008.516 Numbers have increased since then, but remain well below historical highs, generally in the twenty to forty thousand fish range from 2014 to 2019.517 The vast majority of these fish are hatchery fish,518 suggesting that wild reproduction is continuing to collapse as hatchery production struggles to make up the difference. This has been documented through isotope analysis of salmon ear bones on other California rivers.519 The humble approach suggests that, as with the CBWA, long-term success will require giving salmon more space, both for spawning and for the growth of young salmon. Increased spawning habitat could be made accessible to salmon through dam removal or by getting fish around dams,520 either through fish ladders or via trap and haul techniques.521 Increasing access to rearing habitat for young salmon could be accomplished by reconnecting rivers and their flood plains, and some research programs are making significant headway in that area.522 Humility means recognizing that

515 CAL. DEP’T FISH & WILDLIFE, GRANDTAB 2020.05.22: CALIFORNIA CENTRAL VALLEY CHI- NOOK POPULATION DATABASE REPORT 20 (May 22, 2020), http://nrm.dfg.ca.gov/FileHandler.ashx? DocumentID=179102 [https://perma.cc/VH34-YPJV]. 516 Id. 517 Id. 518 Id. In 2014, 87% of fish sampled in the hatchery and 64% of fish sampled from the river were hatchery fish. MELODIE PALMER-ZWAHLEN ET AL., RECOVERY OF CODED-WIRE TAGS FROM CHI- NOOK SALMON IN CALIFORNIA’S CENTRAL VALLEY ESCAPEMENT, INLAND HARVEST, AND OCEAN HARVEST IN 2014, at 8 (2019), https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=166077&inline [https://perma.cc/7GPB-LCFG]. Numbers were similar in 2013 and in 2012. MELODIE PALMER- ZWAHLEN ET AL., RECOVERY OF CODED-WIRE TAGS FROM CHINOOK SALMON IN CALIFORNIA’S CENTRAL VALLEY ESCAPEMENT, INLAND HARVEST, AND OCEAN HARVEST IN 2013, at 8 (2018); MELODIE PALMER-ZWAHLEN & BRETT KORMOS, RECOVERY OF CODED-WIRE TAGS FROM CHINOOK SALMON IN CALIFORNIA’S CENTRAL VALLEY ESCAPEMENT, INLAND HARVEST, AND OCEAN HAR- VEST IN 2012, at 12 (2015). This is a dramatic increase since 2010, when only 32% of fish spawning in the river were of hatchery origin. BRETT KORMOS ET AL., RECOVERY OF CODED-WIRE TAGS FROM CHINOOK SALMON IN CALIFORNIA’S CENTRAL VALLEY ESCAPEMENT AND OCEAN HARVEST IN 2010, at 8 (2012). The first year of systematic analysis of hatchery proportions in returning fish was 2010. Id. at 1. 519 Malte Willmes et al., Fishery Collapse, Recovery, and the Cryptic Decline of Wild Salmon on a Major California River, 75 CANADIAN J. FISHERIES & AQUATIC SCI. 1836, 1836 (2018). This suggests an increasing reliance on hatchery fish, reflecting lower success for in-river spawning. See id. (“[O]ur otolith chemistry data document a persistent decline of wild spawners, likely leading to the erosion of locally adapted Feather River salmon populations.”). 520 See generally NMFS, supra note 294 (detailing the damage that dam construction has had on salmon populations and discussing possible recovery methods). 521 Robert A. Lusardi & Peter B. Moyle, Two-Way Trap and Haul as a Conservation Strategy for Anadromous Salmonids, 42 FISHERIES 478, 479 (2017). 522 See, e.g., Nicholas J. Corline et al., Zooplankton Ecology and Trophic Resources for Rearing Native Fish on an Agricultural Floodplain in the Yolo Bypass California, USA, 25 WETLANDS ECOL-

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we cannot expect nature to stay within manageable bounds, and we should instead provide enough space to relax the degree of control required for successful ecosystem management. This is impossible for a species like the bay checkerspot butterfly, which needs tight management to survive, but humility gain counsels that these efforts will sometimes fail, and the butterfly will be better protected when it has more Serpentine ecosystems that it can inhabit, so its survival will not depend on constant success in nonnative plant control in a tiny area. Humility in management counsels setting goals that recognize existing and changing environmental filters. This challenges traditional approaches under the ESA, which seek to restore species in their historic habitats. But many of those habitats are so altered that species will not be able to recover their absent massive investments of time and resources, and the number of habitats falling into this category will continue to increase in the Anthropocene. There may be other reasons to maintain those ecosystems in a particular state, or to try to keep them close to historic conditions,523 but trying to force particular species into places they can no longer survive is futile. Instead, we should invest the time and resources into protecting or creating places where those species can survive. In effect, this is likely to result in some level of habitat specialization, where society focuses resources on the places that will benefit the most while acknowledging that other areas are irretrievably changed. This may create new opportunities for new species in the changed systems, but some species inevitably will be left out in the cold. Humility thus means recognizing that we cannot save everything from the Anthropocene. When we have established clear goals for our most valued ecosystems and set out an adaptive governance framework that will allow those goals to change over time to reflect changing environmental conditions, the management to achieve those goals will require ongoing funding. Depending on how well the chosen ecosystem conditions reflect the reality of the Anthro- pocene and how willing communities are to give up the ecosystems they have come to expect, those funding needs may climb indefinitely as holding on to desired ecosystem traits goes against trends in environmental filters. Even for existing restoration projects, a survey found that 60% require ongoing funding

OGY & MGMT. 533, 533 (2017) (finding “that flooded agricultural rearing habitat can support juvenile Chinook Salmon based on high densities of zooplankton and other suitable habitat conditions have the potential to support a robust aquatic food web”); Jacob V.E. Katz et al., Floodplain Farm Fields Pro- vide Novel Rearing Habitat for Chinook Salmon, 12 PLOS ONE 1, 2–5 (2017) (finding that intentional flooding of fields on the Sacramento River could help the recovery of Chinook salmon and other native fish species). 523 See Camacho, supra note 10, at 246–47 (recognizing that “historic preservation or restoration of ecological systems may continue to serve important scientific, educational, and cultural values in particular cases”). 2021] Governing Nature 233

and that 20% lacked adequate funding.524 When every ecosystem could become its own project, funding needs will be astronomical.525 Moreover, rising costs are likely to force changes in ecosystem management goals. Even if it were technically possible, we are unlikely to spend the money it would take to garden the world. We will be forced to make hard decisions, giving up treasured species either in the places we have come to expect them, or, in some cases, giving them up entirely. Good governance systems that provide for iterative and adaptive decision-making can provide a forum for these decisions, but they will not ease the suffering of the Anthropocene. Hu- mility will mean deciding what we can afford to save and what must fend for itself. Finally, humility requires acknowledging that we will often get things wrong. An example from the American River highlights this issue. First, as discussed in some detail above, the Water Forum’s approach proved insufficient to handle the historic drought in California, which in turn helped the Fo- rum members realize that their management regime did not adequately account for expected changes in precipitation in light of climate change. 526 Because they had recognized early on in their process that they were likely to get things wrong, their agreement contemplated the need for adjustments and provided a path forward to a new flow standard. Good ecosystem governance is humble governance.527

CONCLUSION The world is changing. The world has always been changing, but now it is changing faster, and humanity is driving much of the change. Absent intervention, these changes will fundamentally alter most ecosystems worldwide and,

524 Bernhardt et al., supra note 387, at 488. 525 This funding issue has several implications of its own. For example, we significantly underestimate the cost of many existing infrastructure projects when the projects shift environmental filters of nearby ecosystems, requiring human intervention to maintain desired conditions. For instance, dams like the ones on the American River, which starve the downstream river of sediment, impose significant costs on those seeking to protect both natural conditions (e.g., sandbars, spawning gravels, flood plains, even nearby ocean beaches, etc.) and other human infrastructure (e.g., levees, bridges, water intakes, and other infrastructure). See Kondolf, supra note 314, at 535 (outlining the negative effect of dams on river sediment, flows, and overall functioning). These costs should be internalized for new projects and absorbed by the beneficiaries of existing projects. See id. at 548 (arguing that the costs of impacts like bridge undermining, loss of spawning gravel, and loss of beach sand should be internalized when assessing proposed and existing projects). The costs are far broader than sediment, of course. These costs, traditionally overlooked when making decisions about building and maintaining infrastructure, must be considered before society can make rational decisions about what infrastructure makes sense. 526 See supra notes 330–335 and accompanying text. 527 See supra notes 502–526 and accompanying text. 234 Boston College Law Review [Vol. 62:155

at this point, even drastic intervention will not stop most of these changes in the near term. These alterations inevitably will alter or eliminate species, landscapes, ecosystem services, and other desirable ecosystem characteristics. Be- cause these changes cannot be avoided, they must be managed, but our current environmental governance structures are not up to the task. We lack the legal infrastructure to make many of the decisions that will be necessary to keep up with our rapidly evolving climate. New governance writers have begun to address this problem, but much of the current literature underestimates the magnitude of the challenge. As this Article shows, the decisions we make about ecosystem management can shape the very fabric of nature. We must focus on reconciling our ecosystems to the new and ever shifting normal, not restoring them to a foreordained condition. To bring this perspective into the conversation, this Article suggests four characteristics for ecosystem governance: it must be local; it must move on from the Bambi worldview; it must incentivize regulatory realignment; and, above all, it must be humble. As the world changes, environmental law must evolve with it.