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Migration and Conservation: Frameworks, Gaps, and Synergies in Science, Law, and Management

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Migration and Conservation: Frameworks, Gaps, and Synergies in Science, Law, and Management GAL.MERETSKY.DOC 5/31/2011 6:00 PM MIGRATION AND CONSERVATION: FRAMEWORKS, GAPS, AND SYNERGIES IN SCIENCE, LAW, AND MANAGEMENT BY VICKY J. MERETSKY,* JONATHAN W. ATWELL** & JEFFREY B. HYMAN*** Migratory animals provide unique spectacles of cultural, ecological, and economic importance. However, the process of migration is a source of risk for migratory species as human actions increasingly destroy and fragment habitat, create obstacles to migration, and increase mortality along the migration corridor. As a result, many migratory species are declining in numbers. In the United States, the Endangered Species Act provides some protection against extinction for such species, but no protection until numbers are severely reduced, and no guarantee of recovery to population levels associated with cultural, ecological, or economic significance. Although groups of species receive some protection from statutes such as the Migratory Bird Treaty Act and Marine Mammal Protection Act, there is no coordinated system for conservation of migratory species. In addition, information needed to protect migratory species is often lacking, limiting options for land and wildlife managers who seek to support these species. In this Article, we outline the existing scientific, legal, and management information and approaches to migratory species. Our objective is to assess present capacity to protect the species and the phenomenon of migration, and we argue that all three disciplines are necessary for effective conservation. We find significant capacity to support conservation in all three disciplines, but no organization around conservation of migration within any discipline or among the three disciplines. Areas of synergy exist among the disciplines but not as a result of any attempt for coordination. As a result, significant gaps in information and capacity exist that must be * Associate Professor, School of Public and Environmental Affairs (SPEA), and affiliated Associate Professor of Law, Indiana University Maurer School of Law, Indiana University, Bloomington, Indiana. Dr. Meretsky thanks Elizabeth Baldwin for her comments and assistance and Robert L. Fischman for his encouragement and comments. ** Ph.D. Candidate in Evolution, Ecology, and Behavior; Department of Biology and Center for the Integrative Study of Animal Behavior (CISAB), Indiana University, Bloomington, Indiana. *** Staff Attorney, Conservation Law Center, and Adjunct Professor of Law, Indiana University Maurer School of Law, Bloomington, Indiana. [447] GAL.MERETSKY.DOC 5/31/2011 6:00 PM 448 ENVIRONMENTAL LAW [Vol. 41:447 addressed if effective conservation of migratory species is to be undertaken. We suggest that all three disciplines cooperate to identify the most pressing research needs, so that these can become targets for relevant funding sources. We identify areas of current risk to migratory species that represent gaps in current legal protections: protective legislation that provides no guidelines for desirable population sizes or best management practices for migratory species, taxonomic groups, particularly those including long-distance migrants, for which no agency has oversight, and gaps in policies to address impacts of fragmentation and obstacles such as power lines and wind turbines that curtail migration or cause mortality. Finally, we suggest that state-level programs provide either a foundation to augment with, or a model on which to build, conservation efforts targeting migratory species. Problems will arise due to lack of funds, difficulties in securing a landscape that will support abundant migrations, lack of adequate standards and best management practices, and an insufficient culture of collaboration among the three main relevant disciplines. However, we view these problems as entirely soluble and see evidence of support in society at large for conservation of migratory species. I. INTRODUCTION ................................................................................................................ 449 II. EXISTING ECOLOGICAL TYPOLOGIES OF MIGRATION ....................................................... 455 A. What Is Migration? ............................................................................................... 456 B. Why Migrate? ........................................................................................................ 458 C. The Geography of Migration .............................................................................. 460 D. Who Migrates? ...................................................................................................... 464 E. The Timing of Migration ..................................................................................... 466 F. Genetics, Learning, and Navigation .................................................................. 469 G. Future Directions in Migration Research ......................................................... 471 III. TYPOLOGY OF EXISTING LEGAL APPROACHES ................................................................. 473 A. Funding, Assistance, Coordination, and Information Generation and Exchange ............................................................................................................... 475 B. State Conservation Planning in Exchange for Federal Incentives ............... 478 C. Acquiring and Designating Habitat for the Benefit of Species’ Individuals and Populations ............................................................................... 480 D. Controls on “Take” of Species’ Individuals, Including Prohibitions and Harvest Restrictions ............................................................................................ 482 E. Standards and Management Practices to Avoid Harm to Individuals and Populations ................................................................................................... 489 F. Concluding Thoughts .......................................................................................... 493 IV. TYPOLOGIES RELATED TO WILDLIFE MANAGEMENT ....................................................... 493 A. Management Contexts ........................................................................................ 494 1. Wildlife Management in the Context of Land Management .................. 494 a. Federal Lands ....................................................................................... 495 GAL.MERETSKY.DOC 5/31/2011 6:00 PM 2011] FRAMEWORKS, GAPS, AND SYNERGIES 449 b. Non-Federal Lands .............................................................................. 500 2. Wildlife Management in the Context of Federal and State Waters ...... 502 a. Waters of the United States ............................................................... 502 b. State Waters.......................................................................................... 503 3. Wildlife Management in the Context of Species Management ............. 504 B. Management Tools for Conserving Migratory Species .................................. 506 1. Tools for Land Management ...................................................................... 506 2. Tools for Species Management .................................................................. 507 3. Interjurisdictional, Landscape-Scale Management ................................. 508 C. Migration Typology for Managers ..................................................................... 509 V. DISCUSSION ..................................................................................................................... 512 A. Synergies in Migration Research, Policy, and Management .......................... 514 B. Gaps in Migration Conservation ........................................................................ 518 1. Gaps in Scientific Information to Support Conservation of Migratory Species. ....................................................................................... 518 2. Gaps in Laws and Policies .......................................................................... 522 a. Gaps in Addressing Fragmentation and Obstacles ......................... 523 b. Jurisdictional Gaps .............................................................................. 526 c. Taxonomic Gaps .................................................................................. 527 d. Gaps in Spatial Coverage .................................................................... 528 e. Limitations on Protection at Ecologically Relevant Levels ........... 528 f. Summary of Law and Policy Gaps .................................................... 529 3. Gaps in Management Focus and Needs ................................................... 529 C. Improving Conservation of Migrants and Migrations ..................................... 530 VI. CONCLUSION ................................................................................................................... 533 I. INTRODUCTION Migratory species once created some of the biggest natural spectacles on the planet: flocks of migrating birds that darkened the skies,1 migrations of antelope and bison that covered African and North American grasslands from horizon to horizon,2 sea turtles in the Caribbean so dense that “it 1 See Alan Taylor, The Great Change Begins: Settling the Forest of Central New York, 75 N.Y. HIST. 265, 271–74 (1995), available at http://external.oneonta.edu/cooper/articles/ nyhistory/1995nyhistory-taylor.html (summarizing accounts of migrating passenger pigeons with references). 2 See A. R.
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