RESTORING ENDANGERED SPECIES: THE IMPORTANCE OF BEING WILD Holly Doremus* I. INTRODUCTION The California condor once again spreads its ten-foot wings over the Grand Canyon. The-howl of the gray wolf echoes through Yellowstone National Park and the Idaho wilderness. Peregrine falcons hunt in the urban canyons of New York, Boston, and Baltimore. The Department of Interior ("Interior"), chief architect of these dramatic scenes, richly de- serves the pride it takes in them. Beyond the drama, the return of these species to their native habitats is an important step toward removing them from the endangered and threatened species lists.' These returns have not come without controversy. At least two of four wolves released to the Upper Peninsula of Michigan in an early project were deliberately killed shortly after their release.2 A relocated sea otter was rubbed out in the style of a mob hit, wrapped in chains and shot through the head.3 The carnage continues. Early in 1997, for exam- ple, the bullet-riddled body of a reintroduced wolf was dumped in a stream outside Yellowstone National Park.' In April 1998, just a month * Acting Professor of Law, University of California at Davis. J.D., University of California at Berkeley, 1991; Ph.D., Cornell University, 1986; B.Sc., Trinity College, 1981. The ideas in this Article grew out of an invitation to speak at the second annual symposium of the Wallace Stegner Center for Land, Resources and the Environment at the University of Utah College of Law. Some very preliminary thoughts on wildlife restoration, delivered at that symposium, were published in RECLAIMING THE NATIVE HOME OF HOPE: COMMU- NITY, ECOLOGY AND THE AMERICAN WEST (Robert B. Keiter ed., 1998). Professors Diane Amann, Joel Dobris, David Driesen, Harrison Dunning, Thomas Joo, Robert Keiter, and Stephen Polasky provided helpful comments on earlier drafts. Brennan Cain, Nathan Goedde, John Doorlay, and Keith Wagner contributed invaluable research assistance. Thanks also to Tanya Bartucz for editorial suggestions. 1. Thanks in large measure to the success of reintroduction efforts, Interior has pro- posed to remove the peregrine falcon from the endangered species list. See Endangered and Threatened Wildlife and Plants; Proposed Rule to Remove Peregrine Falcon in North America from the List of Endangered and Threatened Wildlife, 63 Fed. Reg. 45,446 (to be codified at 50 C.F.R. pt. 17.11 (h)) (proposed Aug. 26, 1998). 2. There is some confusion about how many of these wolves were deliberately killed. Some writers report that all four were shot. See THOMAS R. DUNLAP, SAVING AMERICA'S WILDLIFE 169 (1988); Richard P. Reading et al., Towards an Endangered Spe- cies ReintroductionParadigm, 8 ENDANGERED SPECIES UPDATE, Sept. 1991, at 3. Another commentator, however, claims that two met accidental deaths, one killed by a trapper who mistook it for a coyote and the other hit by an automobile. See JAMES B. TREFETHEN, AN AMERICAN CRUSADE FOR WILDLIFE 295 (1975). 3. See William Booth, Reintroducing a PoliticalAnimal, 241 Sc. 156, 157 (1988). 4. See Wolf Death in Yellowstone Prompts Posting of Reward, PORTLAND OREGO- NIAN, Feb. 9, 1997, at A19. About 10 wolves have been illegally killed in the northern HeinOnline -- 23 Harv. Envtl. L. Rev. 1 1999 HarvardEnvironmental Law Review [Vol. 23 after its release, a Mexican wolf was killed by a camper in Arizona.5 In August 1998, a California condor died following a gunshot wound.6 None- theless, it seems inevitable that federal wildlife restoration1 efforts will continue. The quest to assure the long-term survival of species listed un- der the Endangered Species Act ("ESA"), in particular, will likely force further efforts.8 Interior has avoided formulating any general reintroduction policy, preferring instead to proceed on an ad hoc, project-by-project, basis. To minimize controversy and political opposition, the agency has focused its efforts on charismatic species that enjoy strong popular support, and on species that can survive on federal lands remote from most economic activity. Although it is not possible to shield private property interests entirely from the effects of reintroduced species,9 Interior has also adopted a variety of measures designed to control reintroduced animals, thereby limiting damage to private property. 10 These control measures threaten the effectiveness of restoration ef- forts in at least three ways. First, they can reduce the probability that projects will produce viable populations. Agency biologists are sufficiently sensitive to the needs of restored species, and sufficiently anxious to suc- ceed in their restoration efforts, that they are unlikely deliberately to de- sign a project doomed to biological failure." Nonetheless, by confining Rockies since their 1995 reintroduction. See Keith Bagwell, Wolves Get Stronger Moni- toring, ARIZ. DAILY STAR, May 10, 1998, at Bi. Another Mexican wolf was found shot to death in August 1998. See Hunt Under Way for Person Who Shot Rare Gray Wolf, WASH. POST, Nov. 8, 1998, at A29. 5. See Carla McClain, After Wolf's Death, Some Question Letting Dogs in Area, TucsON CITIZEN, May 1, 1998, at Cl. 6. See CondorDies from Gunshot Wound, SACRAMENTO BEE, Aug., 12, 1998, at A5. 7. The literature on biological restoration features an exuberant array of terminol- ogy. See, e.g., Donald A. Falk and Peggy Olwell, Scientific and Policy Considerationsin Restoration and Reintroduction of Endangered Species, 94 RHODORA 287, 296 (1992). This Article uses the terms "wildlife restoration" and "wildlife reintroduction" inter- changeably to refer to the deliberate relocation of animals by human beings for the specific purpose of bolstering existing free-ranging populations or creating new free-ranging populations within the species' historic range. Wildlife restoration therefore includes: the relocation of animals from one wild population to augment or restock another existing population; the relocation of wild animals to an area outside the existing geographic range of the species but within its historic range; and the deliberate release of captive-bred ani- mals within or beyond the species' current range. 8. See, e.g., DEFENDERS OF WILDLIFE, FRAYED SAFETY NETS: CONSERVATION PLANNING UNDER THE ENDANGERED SPECIES AcT 31-33 (1998) (describing habitat con- servation plans that rely on moving species from one site to another). Passions run high in favor of reintroduction as well as against it. A fringe environmental group reportedly claimed responsibility for arson at a ski resort in October 1998. The reason given was that the resort planned to expand into territory the group believed should be protected to facili- tate future reintroduction of the lynx to Colorado. See Michael Lovell, Group Opposed to Resort Expansion Claims Responsibilityfor Vail Fires, WASH. POST, Oct. 22, 1998, at A26. 9. See infra Parts IV. A. & IV. B. 1. 10. See infra notes 203-227 and accompanying text. 11. Failures certainly do occur, but they are far more likely to result from lack of in- formation about the species than from attempts to accommodate property interests. See HeinOnline -- 23 Harv. Envtl. L. Rev. 2 1999 1999] Restoring EndangeredSpecies restored species to a discrete area, control measures inevitably limit the extent of the restored population. Second, control measures can increase the costs of restoration. Agency commitments to monitor, recapture, or relocate species undoubt- edly drive up administrative costs. Interior often assumes that these addi- tional costs will be offset by decreased enforcement costs because con- trol measures will reduce landowner resistance. It is not obvious a priori, however, which control measures, if any, will produce a net administra- tive saving. Third, perhaps the most important and certainly the least recognized effect of Interior's control measures is to diminish the extent to which reintroduced animals live as wild, natural creatures. Interior seems to worry only about the ability of its reintroduced wards to reproduce, but that is not all that matters. Measures that subject introduced populations to human control and manipulation move those populations toward do- mestication, changing them from wild animals to human creations de- signed to serve human needs. Domestication deprives wild creatures of their aura, their magic, the essence for which we should be protecting them. For that reason it is in- consistent with the ESA, the overriding purpose of which is the protec- tion of wild species. 12 Interior's implicit choices directly and indirectly reduce the likelihood of wild recovery. For example, although its regula- tions acknowledge the importance of protecting species in the wild,13 In- terior has consistently refused to afford reintroduced animals the full protection of the ESA, even when those animals represent the only un- 14 confined members of the species. Interior should not blindly adopt control measures that may threaten the ability of expensive, time-consuming restoration projects to satisfy the ESA's goal of preserving wild nature. Instead, the agency should carefully, and publicly, evaluate the extent to which various control meas- ures decrease the likelihood of achieving the long-term goal of restoring well-distributed wild populations. Control measures should not be adopted unless the agency concludes, after a public airing of the issues, that they are consistent with recovery of the species in a form as wild as possible. In order to reach this conclusion, Interior must come to grips, at least in a preliminary way, with questions it has so far avoided. The agency must ask, and begin to answer, how much wild nature society needs, and how much society can accept. Part II sets the stage for this discussion with a brief overview of the evolution of wildlife restoration in the United States, from utilitarian ori- infra notes 319-328. 12. See infra notes 63-86 and accompanying text. 13. See infra note 85. 14. See infra notes 206-209 and accompanying text. HeinOnline -- 23 Harv. Envtl.