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Abstract:
A recent flurry of new natural resources law casebooks, coming a quarter-century since the publication of the last significant new teaching materials, is an occasion to revisit the boundaries that define the field. The similarities among the casebooks are stronger than their differences, and represent a consensus about what composes natural resources law. The published teaching materials as well as an informal poll of natural resources law professors show a substantial overlap between natural resources and environmental law course coverage. Administrative implementation of statutes dominates both subjects. Both courses typically cover environmental impact analysis and endangered species protection. The new casebooks broaden natural resources law coverage to include water rights, wetland development, and other subjects outside of public land management.

Despite the common ground shared with environmental law, natural resources law retains a distinctive character. This article describes four attributes that justify separate pedagogical treatment of natural resources law as a stand-alone course in law schools. First, the in-situ character of extractive activities that dominate natural resources law raises special problems and generates place-based approaches to governance. Second, the deeper roots of natural resources law present particularly vexing interpretive issues for applying the old statutes, deeds, and doctrines to contemporary problems. Third, natural resources law has more experience with ecosystem management. Fourth, despite the now-paramount importance of administrative tools, natural resources law still displays a broader array of property interests that go beyond the variations studied in the first-year property class.

natural resources law, public land, environmental law, ecosystem management, and law teaching

Abstract:
Cooperative federalism describes an arrangement under which a national government induces coordination from subordinate jurisdictions, such as states and tribes, through incentives rather than requirements. In environmental law, cooperative federalism highlights the divide between pollution control and resource management. This article examines the divide from both sides.

Even though almost all of the environmental law commentary on cooperative federalism focuses exclusively on the pollution control side, the basic elements of cooperative federalism can be combined in a wider variety of forms than are recognized by most pollution control programs or scholarship. This article reviews the ways in which resource management law has brokered the state-federal relationship to expand the otherwise cramped spectrum of arrangements that might fairly be called cooperative federalism. The narrow, pollution control model entails the fostering of state administrative programs that can receive authorization to tailor and implement federal standards. Natural resources law demonstrates three broader categories of cooperative federalism: place-based collaboration, state favoritism in federal process, and federal deference to state process.

Conversely, natural resources law can benefit from adaptation of the narrow, pollution control model of the cooperative federalism. This article applies some of those tools to the Endangered Species Act (ESA) and discusses recent developments that modify my previous work in this area. There is an acute need in the ESA program for federal coordination with state and local jurisdictions because land use is such an important determinant of habitat quality for biodiversity. Federal certification of local programs for the purpose of meeting national standards can spur more effective grass roots conservation while eliminating awkward duplication. However, the problem of inadequate inducements highlights important limitations. In particular, experimentation with narrow cooperative federalism through ESA's 4(d) rules modifying strict prohibitions on adverse habitat modification illustrates a kind of Gresham's Law of regulatory choice: lax standards drive stringent standards out of circulation.

cooperative federalism, natural resources law, Endangered Species Act, salmon, collaboration, regulation

Abstract:
On June 26, 2006, the U.S. Fish and Wildlife Service (FWS) issued three new final policies governing the conservation of the national wildlife refuge system. These new agency manual provisions nearly complete an implementation project that began shortly after Congress enacted an organic statute in 1997 for management of the refuges. This article briefly reviews the significance of the 1997 legislation and places the new policies in the context of the statutory framework. It then discusses the most important aspects of the policies in terms of both practical refuge management and broader trends in natural resources law. The article evaluates the legal status of the policies with a special focus on whether the judiciary would bind the FWS to follow them. The article concludes with suggestions for the next round of FWS policymaking for refuge conservation.

wildlife refuges, Fish and Wildlife Service, public lands, conservation, ecosystem management

Abstract:
A retrospective of National Wildlife Refuge System conservation shows a promising trajectory. The system has overcome persistent neglect to contribute to conservation policy. Haltingly, it has kept pace with conservation science to remain the chief American contribution to large-scale wildlife protection. Early on, it pioneered the use of habitat acquisition to protect imperiled species. More recently, it has begun to implement the cutting-edge ecological mandate to maintain biological integrity, diversity, and environmental health. Perhaps the most meaningful feature of the history of the refuge system is how closely it mirrors the development of conservation policy in the twentieth century.

This article reviews the evolution of refuge system management and shows how it reflects the major conservation developments over the past century. It begins by surveying the system with special reference to the Pelican Island National Wildlife Refuge and the Arctic National Wildlife Refuge. The article conducts a historical review of conservation policy developments, with particular emphasis on their legal dimensions. It then discusses the current conservation framework for the refuges, which is a form of ecosystem management. The article concludes by observing the ways in which the national wildlife refuges are now the most important federal lands for demonstrating sustainability and ecosystem management on a large scale.

public lands, wildlife, conservation, wildlife refuges, ecology, endangered species, natural resources law

Abstract:
This article considers recent trends in federalism, with particular attention to natural resource law's statutory savings clauses. It begins with a case study of elk management in Jackson Hole, Wyoming. The elk controversy shows how a statutory savings clause can provide a state with traction to advance its interests, and demonstrates how the political winds of change can shift the balance of state-federal relations. The article then focuses on the common statutory savings clauses and their roles in circumscribing federal agency authority and establishing a basis for cooperation between federal and state governments. We analyze the interpretive approaches the judiciary may employ to make sense of the statutory savings language, and conceptualize them along a continuum of influence in resolving cases. The article concludes with an explanation of trends that set the direction for policy innovations in natural resources federalism and general thoughts about the future of federalism in natural resources law.

federalism, natural resources law, savings clauses, public land management, elk management

Abstract:
This article extracts from the legislative mandate to "ensure that the biological integrity, diversity, and environmental health of the [Refuge] System are maintained," a range of meanings that reflect scientific and legislative trends in conservation. The standard modes of statutory interpretation yield meanings that largely support the 2001 Fish and Wildlife Service policy delineating three distinct yet overlapping categories. The analysis reveals three insights applicable to other areas of environmental law. First, although diversity and health emphasize important aspects of nature protection, integrity is becoming the umbrella concept that encompasses the needs of well functioning landscapes. Second, the effectiveness of an organic mandate hinges on agency implementation, and the 2001 policy - though a laudable start - does not adequately establish benchmarks to measure compliance. Third, broad spatial and temporal scales now frame nature protection. The mandate looks beyond individual refuge boundaries to the context of a watershed, region, or the entire federal land system, in addressing the dynamic variation in ecological processes.

Environmental Law , public land law, wildlife law, conservation biology, science and the law , statutory interpretation

Abstract:
This article explores the data gaps between what the law demands and what science supplies as a way of understanding the structural divides in environmental law. Despite important characteristics that separate pollution control from resource management subject matter, other dimensions distinguish among statutes and programs in the field. In particular, regulatory approaches and legislative attributes highlight similarities and differences that are obscured by a subject matter focus. The article illustrates how insights from across the divides can help resolve some data gaps and improve information policy.

In particular, the article focuses on the problem of harm in the Endangered Species Act ("ESA"): how courts should determine whether to issue an injunction stopping a habitat disturbing activity. Currently, courts adapt common law proximate cause principles to decide when to issue injunctions under the harm prohibition of the ESA. The article discusses the data gap problem with this application of common law to the framework of the ESA. It shows how lessons from across the subject matter divide better serve the ESA's regulatory approach. The article recommends that courts and implementing agencies borrow from pollution control programs to interpret the ESA's prohibition on harm as a trigger for permitting rather than an outright ban.

Endangered Species Act, Environmental Law, Information, Science and the Law, Harm, Take, Habitat

Abstract:
The thirtieth anniversary of the enactment of the modern Endangered Species Act (ESA) offers an irresistible excuse to suggest changes that are needed to set the statute, and the larger project of environmental protection, on course for greater effectiveness. The 1973 ESA is novel in its approach and reach, in that it reflects both the resource management and pollution control traditions in environmental law. Its evolution indicates broader trends in the legal landscape of environmental law.

Making predictions about the future of the ESA is a daunting task. Most predictions made thirty years ago about the statute proved to be wrong. The existence of three inconsistent, but equally plausible stories describing the past thirty years of environmental law history compound the problem, providing little basis upon which to project past trends onto the future.

More useful than venturing guesses about the future is describing what changes we need to make in order to fulfill the promise of the ESA. Rather than speculating about the statute's future path, we must carefully plan that path with prescriptions for reform in three major areas: better funding for the ESA program, technology-based limitations to control habitat degradation, and preventative care for biodiversity.

Endangered Species Act, Environmental Law, Natural Resources Law

Abstract:
This Article addresses how well forestry law in the United States promotes sustainable development, with special attention to the trends of the past decade. The role of law in shaping forest management decisions has been a contentious issue in this recent period, and forestry has been at the forefront of public concern about sustainability of natural resource management generally. Therefore, the problems and opportunities for forestry law to promote sustainable development are indications of the weaknesses and strengths of the overall U.S. legal regime.

forestry law, sustainable development, forest management

Abstract:
This article explores the origins and precise meaning of the term "organic act," which is widely used in public land law. The evolution in the meaning of the term reflects larger shifts in the role of legislation in public resource management. The article illustrates this with an analysis of the 1997 Refuge Improvement Act, a substantial revision of the charter for the Refuge System and the first major statute governing public land management enacted since the 1970s.

The Refuge System's "dominant use" regime is an important model for sustainable resource management. The article describes this regime in the context of the unique purpose, hierarchy of dominant uses, and substantive management mandates under which the U.S. Fish and Wildlife Service administers the national wildlife refuges. In addition, the article provides a critique of the planning, compatibility, and biological integrity, diversity and environmental health policies that the Service has promulgated to guide management of the refuges.

wildlife refuges, organic act, Fish and Wildlife Service, public lands, public land management

Abstract:
Adaptive management has become the tonic of natural resources policy. With its core idea of “learning while doing,” adaptive management has infused the natural resources policy world to the point of ubiquity, surfacing in everything from mundane agency permits to grand presidential proclamations. Indeed, it is no exaggeration to suggest that these days adaptive management is natural resources policy. But is it working? Does appending “adaptive” in front of “management” somehow make natural resources policy, which has always been about balancing competing claims to nature’s bounty, something more and better? Many legal and policy scholars have asked that question, with mixed reviews. Their evaluations, however, have rested on theory, program-specific surveys, and isolated case studies. This article provides the first comprehensive review of adaptive management from the perspective that likely matters most to the natural resource agencies practicing adaptive management—how is it faring in the courts?

Part I of the Article examines the theory, policy, and practice of adaptive management, focusing on the experience of the federal resource management agencies. The end product in practice is something we call “a/m-lite,” a watered down version of the theory that resembles ad hoc contingency planning more than it does planned “learning while doing.” This gap between theory and practice leads to profound disparities between how agencies justify decisions and how adaptive management in practice arrives at the courthouse doorsteps.

In Part II we review how these disparities have played out in courts considering claims that agency practice of adaptive management has not lived up to its theoretical promise or to the legal demands of substantive and procedural environmental law. We extract three key themes from the body of case law in this respect.

Part III extends from the existing case law to draw lessons for agencies and Congress about the future practice of adaptive management. Our ultimate message to agencies is that a/m-lite can be an effective decision method—and one that survives judicial scrutiny—but agencies must be more disciplined about its design and implementation. This includes resisting the temptation to employ adaptive management to dodge burdensome procedural requirements, substantive management criteria, and contentious stakeholder participation. If faithfully followed and enforced, this model, despite its flaws, could serve as an important component of natural resources policy to confront problems of the future as daunting as climate change.

Abstract:
Since its establishment in 1903, the National Wildlife Refuge System (NWRS) has grown to 635 units and 37 Wetland Management Districts in the United States and its territories. These units provide the seasonal habitats necessary for migratory waterfowl and other species to complete their annual life cycles. Habitat conversion and fragmentation, invasive species, pollution, and competition for water have stressed refuges for decades, but the interaction of climate change with these stressors presents the most recent, pervasive, and complex conservation challenge to the NWRS. Geographic isolation and small unit size compound the challenges of climate change, but a combined emphasis on species that refuges were established to conserve and on maintaining biological integrity, diversity, and environmental health provides the NWRS with substantial latitude to respond. Individual symptoms of climate change can be addressed at the refuge level, but the strategic response requires system-wide planning. A dynamic vision of the NWRS in a changing climate, an explicit national strategic plan to implement that vision, and an assessment of representation, redundancy, size, and total number of units in relation to conservation targets are the first steps toward adaptation. This adaptation must begin immediately and be built on more closely integrated research and management. Rigorous projections of possible futures are required to facilitate adaptation to change. Furthermore, the effective conservation footprint of the NWRS must be increased through land acquisition, creative partnerships, and educational programs in order for the NWRS to meet its legal mandate to maintain the biological integrity, diversity, and environmental health of the system and the species and ecosystems that it supports.

Climate, Adaptation, Refuge, Conservation, Planning, Strategy

Abstract:
Animal migrations are as familiar as geese in the sky on a fall afternoon and as mysterious as the peregrinations of sea turtles across thousands of miles of open ocean. This article discusses the distinguishing attributes of animal migrations, why they are important to biodiversity conservation, and the legal challenges posed by migration conservation. In particular, the article focuses on those aspects of migration conservation that existing law, dominated by imperiled species protection, fails to address. It consequently suggests law reforms that would better conserve animal migrations. A step toward serious legal efforts to protect the process and function of migration would represent significant broadening of the current framework for biodiversity protection policy. This article begins by describing animal migrations and explaining the common threats that raise conservation concerns. Any successful strategy for protecting migration will need to address habitat destruction, human-created obstacles, overexploitation (i.e., hunting and fishing), and climate change. The article examines the four key legal elements of a conservation strategy. The first is the establishment of differential thresholds of action responsive to the degree of risk to a migration. Second is transboundary coordination, which may involve international or interstate agreements, depending on the scale of the migration. Third is the protection of migration connectivity. Effective connectivity requires designation of corridors. Within the corridors, legal activity should concentrate on acquisition of habitat as well as activity-based regulation of habitat-disturbing practices. Fourth is controlling commercial and recreational harvests of migrating animals or the species on which the migrations rely. Finally, the article presents a theoretical model that tailors a place-based legal response to both migratory population abundance and the ecological importance of habitat. Application of the model would result in variable levels of legal protection to minimize unnecessary costs and optimize the benefit of conservation efforts. Existing attempts to conserve migrations using variable levels of protection compose a mixed record from which we extract lessons.

animal migration, wildlife law, natural resources, endangered species, conservation