Maurer School of Law: Indiana University Digital Repository @ Maurer Law

Articles by Maurer Faculty Faculty Scholarship

2007

Reflections on the enthT Anniversary of the Refuge Improvement Act

Robert L. Fischman Indiana University Maurer School of Law, [email protected]

Follow this and additional works at: https://www.repository.law.indiana.edu/facpub

Part of the Environmental Law Commons, and the Natural Resources Law Commons

Recommended Citation Fischman, Robert L., "Reflections on the enthT Anniversary of the Refuge Improvement Act" (2007). Articles by Maurer Faculty. 455. https://www.repository.law.indiana.edu/facpub/455

This Article is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. FOCUS . . .On Refuge Improvement Act ’s Refuges and the Improvement Act

by Mike Boylan nation’s wildlife refuges, but a whopping 80 percent of the acreage. To give a sense of scale, Yukon Delta National Wild­ life Refuge is the size of South Carolina. Alaska’s big size has spawned big dreams, and these have touched its refuges. In the 1960s, the state wanted to build a and flood an area the size of New Jersey for hydroelectric power. The Rampart Dam project fell through, though, and today the third largest refuge, , sits where there might have been a larger than . In 1958, the Atomic Energy he danger in looking at Alaska to Commission wanted to demonstrate the Tunderstand the Refuge System is peaceful uses of nuclear power by atom- like looking for a date in a funhouse blasting a harbor at Cape Thompson in mirror – the image is pretty distorted. today’s Alaska Maritime Refuge. Project Alaska has just three percent of the Chariot was abandoned, but Amchitka

Reflections on the Tenth Anniversary of the Refuge Improvement Act “The Service now The Centrality of the Mission has an affirmative by Robert Fischman associated with modern scientific resource programs.” This is a very conservation en years after Congress enacted the different conception of conservation from TNational Wildlife Refuge System the multiple-use, sustained-yield missions stewardship duty.” Improvement Act, the law remains the that sought to conserve a steady stream most recent organic act for any federal of commodities to be extracted from the public land system. The envy of other public lands. It also embraces a broader systems, the law provides a hierarchy of land and water ethic that extends to plants preferred uses, comprehensive planning, and habitat rather than the previous, substantive management criteria and almost exclusive, focus on animals. many other elements necessary to conserve public resources. A key lesson of conservation biology is that nature reserves need to be The most fundamental change wrought interconnected. The 1997 Act re­ by the 1997 law is its systemic goal of conceived the Refuge System as a conservation. The U.S. Fish and Wildlife “national network” of lands and waters Service must “sustain and, where to sustain plants and animals. This appropriate, restore and enhance healthy realigned the geometry of refuge populations of fish, wildlife, and plants conservation from linear flyways to a utilizing . . . methods and procedures

Pg 12 Refuge Update | September/October 2007 . . .Science in The Refuge System

. . .On Refuge Improvement Act

Island, part of the Aleutian Islands Integrity policy, and its innovative conserve fish and wildlife populations and Reservation since 1913, endured three Appropriate Uses policy. habitats in their natural diversity. . .” underground nuclear tests, including the Regrettably, ANILCA didn’t define largest held in the U.S. in 1971. New Level of Scientific “natural diversity.” However, the Refuge Sophistication Improvement Act provides direction to It’s no wonder that Alaska National The Refuge Improvement Act directs “ensure that the biological integrity, Interest Lands Conservation Act that CCPs be developed for each refuge diversity, and environmental health of the (ANILCA) was seen as the salvation of or complex within 15 years, “except with System are maintained.” The subsequent Alaska’s refuges. And it’s no surprise respect to refuge lands in Alaska. . .” This 2001 Policy on Biological Integrity turned that the National Wildlife Refuge System exemption recognizes that Alaska has ANILCA’s “natural diversity” from a Improvement Act clearly defers to had CCPs since the 1980s, as required stumbling block into a stepping stone by ANILCA: “If any conflict arises between by ANILCA. Still, Alaska refuges have clarifying that biological integrity must any provisions of this Act and any seized upon Refuge Improvement Act “provide for the consideration and provision of the Alaska National Interest guidance to revise their CCPs to address protection of the broad spectrum of fish, Lands Conservation Act, then the new challenges and opportunities. The wildlife and habitat resources found on provisions in the Alaska National Interest Improvement Act adopted Alaska’s refuges and associated ecosystems. Lands Conservation Act shall prevail.” “Comprehensive Conservation Plans” Further, it provides refuge managers title as the national standard, replacing with an evaluation process to “. . . prevent It would be an exaggeration to say variants like “master plan” and ANILCA gave birth to the Refuge further degradation of environmental “comprehensive management plan” used conditions and . . . restore lost or severely Improvement Act, but it was certainly before the Act. present in the delivery room. Three degraded components.” notable examples include the Refuge If the Improvement Act benefited from This policy brought a new level of Improvement Act’s consistent direction ANILCA, it reciprocated by patching scientific sophistication to refuge for Comprehensive Conservation Plans some holes in the landmark law. For management by considering genetic (CCPs), its visionary Biological example, among the standard purposes variation, population levels, keystone ANILCA specified for each refuge is “to continued pg 24

more complex web of relationships. It conservation after three decades of these concerns were incorporated into challenges the Service to consider how lagging. The Service policy implementing the formal environmental impact analysis actions on each refuge contribute to this standard addresses external threats of the proposed project, and the Service or diminish the conservation potential – those sources of degradation that followed the policy’s prescription to raise of the System. It provides traction for originate from actions that occur outside concerns in the context of local land adapting to the monumental disruptions of the refuge boundary. Of all the federal use procedures. The regional director of climate change. public land systems, only the national testified in opposition to the project’s parks’ policies deal as forthrightly with conditional use permit before the county Meeting the Mission at Minnesota external threats. commission. In the face of the Service’s Valley National Wildlife Refuge well-documented opposition, which But there is more. In an effort to One of my favorite examples of how this was amplified by the refuge Friends hold the Service accountable to the policy can make a difference in meeting organization, the county commissioners broad purpose for the Refuge System, the mission occurred near Minnesota unanimously rejected the permit Congress imposed a number of path- Valley National Wildlife Refuge in 2003­ application. breaking substantive management 04. Facing construction of a 19,250-seat, criteria. The law requires that the amphitheater on a tract of land adjacent Stewardship and Restoration Service maintain “biological integrity, to the refuge, the refuge staff carefully The 1997 statutory mission of the diversity, and environmental health” documented how the amphitheater system also includes restoration, where on refuges. This is the most ecological would project noise, nighttime light and appropriate, of plants and animals. This standard in all of U.S. public land stormwater into the refuge, harming element is reflected in three unusual law. It represented a return of the refuge resources and priority public obligations. First, the Service has a Refuge System to the cutting edge of uses. They took measures to ensure that duty to acquire water rights, the only

continued pg 26

September/October 2007 | Pg 13 Refuge Update Reflections on the Tenth Anniversary— continued from pg 13 affirmative trust mandate of its kind in into a coherent network for continental U.S. public land law. Because instream conservation. The refuges do not yet flow problems in refuges are generally fully cohere into a system that is more caused by upstream users outside of than the sum of its parts. The web the refuge boundaries, this provision remains frayed and patchy. supports the commitment to abate external threats. The Refuge Improvement Act is a call to action that will be remembered as Second, the 1997 statute requires the farsighted as Theodore Roosevelt’s Service to “monitor the status and 1903 proclamation of the “preserve” on trends” of animals and plants in each Pelican Island. The traditionally shy refuge. This biological monitoring duty Blackwater National Wildlife Refuge in Service is poised to provide leadership will prompt development of an essential, Maryland (Karen Hollingsworth/USFWS) in the tremendous land use challenges yet chronically missing, element of a sword to advance the restoration goal facing our fragmented landscape. The adaptive management. Adaptive and the mission to maintain biological manifestation of the mission on-the­ management requires feedback about integrity, diversity, and environmental ground can inspire neighbors to join the consequences of decisions in order health. To succeed, refuges must go in urgent conservation projects. The to adjust them continually. Public land beyond abating threats and lead through Refuge System under the 1997 statute management generally lacks a research example to demonstrate what good land can be more than just the national component that adequately evaluates the use is for a watershed or region. network of nature. It can be the polestar success of predictions. for reformed resource management The Challenge and Potential of throughout the world. ◆ Third, the Service now has an affirmative Purpose conservation stewardship duty. This Notwithstanding its systemic purpose, Robert Fischman is a law professor looks to the future when the system will t Indiana University—Bloomington the 1997 law retained the disparate a face problems not specifically addressed and the author of The National Wildlife purposes for which individual refuges in the current law. While it will initially Refuges: Coordinating a Conservation were established. The Service still be used as a shield to defend protective System through Law (Island Press 2003). faces a tremendous challenge in actions, it may ultimately be wielded as orchestrating the hodgepodge of refuges

Is the Refuge Improvement Act all Wet?— continued from pg 15 to ensure the necessary quantities? The funding to access and document the effects on wildlife as a result of intervention short answer is yes… and no. water uses and needs on refuges and by the National Wildlife Refuge recommended development of a program Association and others who stopped Few refuges have federally reserved water to “improve data collection and analysis for “rider language” in the Water Resources rights, and the overwhelming majority use in defense of refuge water rights” and Development Act that would have operates under state water laws with water “increase the efficiency and effectiveness of extended high water levels in upstream rights granted by the states. Although existing water management.” Lake Barkley. the Act does not create new water rights, it does require that the Secretary of the Until the Administration requests If we do nothing about water quantity, Interior “acquire, under state law, water and Congress substantially increases many of this country’s most beautiful and rights that are needed for refuge purposes” appropriations for purchasing water rights, biologically diverse lands will cease to exist. and “assist in the maintenance of adequate the Secretary will simply be unable to Refuge supporters around the country water quantity and water quality to fulfill comply with the law. need to look around them, acknowledge the mission of the System.” and understand the problem, and do what In the meantime, it is the responsibility they can to assure that refuge habitat and While this directive to the Secretary of those who care about refuges to defend wildlife have a voice in the clamor for the is clear, ultimately the Refuge System refuge water needs. Some refuges have clean water we all need in order to survive must have adequate funds to meet this already benefited from citizen action. and thrive. ◆ obligation. The Western Water Policy Tennessee and Cross Creeks National Review Advisory Commission reported Wildlife Refuges may be spared drastically Evan Hirsche is president of the National in 1998 that the Service has inadequate reduced water volume and its disastrous Wildlife Refuge Association.

Pg 26 Refuge Update | September/October 2007