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Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change

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Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change Alejandro E. Camachot To avoid extinctions and other harms to ecological health from escalating climatic change, scientists, resource managers, and activists are considering and even engaging in "assisted migration"-the intentional movement of an organism to an area in which its species has never existed. This Article explores the profound implications of climate change for American natural resource management through the lens of this controversial adaptation strategy. It details arguments regarding the scientific viability and legality of assisted migration under the thicket of laws that govern natural resources in the United States. The Article asserts, however, that the fundamental tensions raised by this strategy are ethical: to protect endangered species or conserve native biota; to manage ecological systems actively or leave nature wild and uncontrolled; and to preserve resources or manage them to promote theirfitness underfuture conditions. The Article explains why contemporarynatural resource law'sfidelity to historic baselines, protecting preexisting biota, and shielding nature from human activity is increasingly untenable, particularly in light of climate change. Active, anticipatory strategies such as assisted migration may not only be permissible but even necessary to avert substantial irreversibleharm to ecological systems. Scientists and resource managers should focus on developing scientific data to aid analyses of the risks and benefits of assisted migration in particular circumstances. To help develop such data while minimizing ecological harm, the Article proposes provisionally limiting experimental translocations to situations where translocation is technically t Associate Professor of Law, Notre Dame Law School; Visiting Professor, University of California, Irvine School of Law. For helpful comments and conversations on this Article, I thank Eric Biber, Dan Burk, Erwin Chemerinsky, Joe DiMento, Holly Doremus, Rob Fischman, Catherine Fisk, Sarah Krakoff, Doug Kysar, John Nagle, led Purdy, J.B. Ruhl, Jim Salzman, Buzz Thompson, the members of the Managed Relocation Working Group, the participants at the Colorado Law School Property Conference, the 2009 Natural Resource Law Teachers Institute, the 2009 Ecological Society of America Annual Meeting, and workshops at the Stanford, U.C. Irvine, University of Colorado, and University of Washington law schools. I particularly thank Dan Ashe and Nancy Green, U.S. Fish and Wildlife Service; Dwight Fielder, Bureau of Land Management; and Andrew Thompson, National Oceanic and Atmospheric Administration for their insights on federal regulatory programs. I would also like to thank the National Science Foundation, the Cedar Tree Foundation, the University of Notre Dame, and the University of California, Irvine for funding supporting this research. The research assistance of Preston Carter, Andrea Fowler, Dylan Johnson, and Jaime Padgett, and the editorial support of the Yale journal on Regulation, are acknowledged with much gratitude. Yale Journal on Regulation Vol. 27:2, 2010 and economicallyfeasible, and where the species is endangered,ecologically valuable,and compatible with the proposed site. More broadly, assisted migration illustrates how the institutions and goals of natural resource law must be changed to better reflect a dynamic, integrated world. Climate change forces a radical reconsideration of the aims, foci, and standardsof natural resource management. Accordingly, the crucial project of natural resource law must be improving governance by cultivating agency accountabilityand learning to better manage uncertainty, promoting opportunitiesfor interjurisdictionalcollaboration, and fostering public information and deliberation over the tradeoffs of strategies like assistedmigration and the resource values that matter. In tro d u ctio n ......................................................................................................................... 1 7 3 I. Scientifi c V iability .......................................................................................................... 179 A. The Effects of Climate Change on Biological Systems ................... 179 B. A Viable Response to Climate Change? ............................................... 183 II. Legal Feasib ility ............................................................................................................ 18 8 A. Existing Optionsfor Non-Native Translocation.............................. 188 1. For Federally Listed Endangered Species ................................ 190 2. By Federal Land Management Agencies ................................... 191 a. N ational Forests ........................................................................... 192 b . B LM Lands ...................................................................................... 194 c. Federal W ildlife Refuges .......................................................... 195 d. N ational Parks .............................................................................. 196 e. W ilderness A reas ......................................................................... 198 3. U nder State Law s ............................................................................... 199 B. A Dissonance with Natural Resource Law ......................................... 202 1. Inconsistent with Resource Preservation Mandates ........... 202 2. Incongruous with Existing Decentralized Management.... 207 III. The Ethics of Assisted M igration ......................................................................... 210 A. Challenges to Conventional Natural Resource Management..... 211 1. Attempting To Shield a Wild and Organic Nature ................ 211 2. Allowing the Elevation of Endangered over "Native". ........ 216 3. Current Dominance of Historical, Contextual Preserv ation .......................................................................................... 22 1 B. In Defense of Assisted Migration........................................................... 225 1. Active Management for Species Protection ............................. 225 2. Balancing Endangered and Preexisting Species .................... 228 3. Anticipatory Management for Impending Change ................ 231 IV. Toward an Assisted Migration Framework ..................................................... 234 A. AlternativeAdaptation Strategies........................................................ 234 B. A ProvisionalStandard for Experimental Translocations........... 236 Assisted Migration C. An Adaptive Learning Infrastructure.................................................. 240 V. The Future of Natural Resource Management ................................................. 243 A . Baseline Goals.............................................................................................. 244 B . Focal Un it ...................................................................................................... 24 8 C. M anagement Standards.......................................................................... 251 Co n clu sio n ............................................................................................................................ 2 5 3 Introduction A growing number of conservationists,' resource managers, 2 and scientific 3 and legal4 scholars are suggesting the use of an experimental and controversial strategy to help the world's biota adapt to the considerable projected adverse effects of anthropogenic climate change. "Managed relocation,"5 alternatively dubbed "assisted migration" 6 and 7 "assisted colonization," is the intentional transfer of flora or fauna to a new region in response to climatic change. 8 In other words, assisted 1 See, e.g., Connie Barlow & Paul S. Martin, Bring Torreya taxifolia North - Now, WILD EARTH, Fall/Winter 2004-2005, at 52. 2 See, e.g., Julie Lurman Joly & Nell Fuller, Advising Noah: A Legal Analysis of Assisted Migration, 39 ENVTL. L. REP. 10,413, 10,419 (2009) (describing the efforts of the U.S. Fish and Wildlife Service (FWS) to evaluate assisted migration as a potential adaptation strategy); Emma Marris, Planting the Forest of the Future, 459 NATURE 906, 908 (2009) (reporting on the plant translocation program of the British Columbia Ministry of Forests). 3 See, e.g., 0. Hoegh-Guldberg et al., Assisted Colonization and Rapid Climate Change, 321 SCIENCE 345 (2008) (advocating assisted migration as an adaptation tool). 4 See J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No- Analog Future, 88 B.U. L. REV. 1, 61 (2008) (advocating briefly for the use of assisted migration if the FWS has assembled sufficient evidence of the extinction risk and likely success of the strategy and adopted a long-term management plan). 5 David M. Richardson et al., Multidimensional Evaluation of Managed Relocation, 106 PROC. NAT'LACAD. SCI. 9721 (2009). 6 See Joly & Fuller, supra note 2, at 10,419; Jason S. McLachlan et al., A Frameworkfor Debate of Assisted Migration in an Era of Climate Change, 21 CONSERVATION BIOLOGY 297 (2007); lillian M. Mueller & Jessica 1. Hellmann, An Assessment ofInvasion Riskfrom Assisted Migration, 22 CONSERVATION BIOLOGY 562 (2008); Sebastiaan Van der Veken et al., Garden Plants Get a Head Start on Climate Change, 6 FRONTIERS ECOLOGY & EVOLUTION 212 (2008) (referring to active debate among conservation biologists regarding "assisted migration"). 7 See Hoegh-Guldberg
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