From Population Segregation to Species Zoning: The Evolution of Reintroduction Law Under Section 10(j) of the Endangered Species Act

Abstract

"Reintroduction" has become a prominent and fashionable component of Endangered Species Act recovery programs. Reintroduction involves returning species members to areas of their historic range from which they have disappeared. In recent years, the U.S. Fish and Wildlife Service (USFWS) has reintroduced "experimental populations" of sea otters, whooping cranes, black-footed ferrets, red wolves, gray wolves, Mexican wolves, California condors, and Delmarva fox squirrels, to name only a few. The fundamental logic of reintroduction is unassailable. In order to have a species that can overcome the vagaries of the natural world without the protections of the Endangered Species Act, one needs more than one population of creatures. However, reintroduction to further recovery requires thinking at levels beyond those required by traditional species preservation programs. Once we understand that species conservation requires more than simply protecting species remnants from the most obvious and redressable threats to survival, we encounter novel issues. The relationship between recovery and reintroduction is not necessarily a positive one. In fact, there is a strong argument that section 10(j) of the Endangered Species Act, the current law governing reintroduction of most protected species, entices wildlife managers to undercut the politically charged, amorphous, strategic goal of "recovery" in favor of the concrete, tactical goal, "reintroduction." In other words, section 10(j) encourages wildlife managers to subordinate the welfare of the species in fifty or one hundred years to establishing another population of the species next year.