Restoring Endangered Species: The Importance of Being Wild
Harvard Environmental Law Review, Vol. 23, Spring 1999
Posted: 9 Aug 1999
Reintroduction of endangered or threatened species to portions of their range from which they have been extirpated is an increasingly important aspect of endangered species policy. Many species do not reach the protected list until their numbers are severely reduced. At that point, reintroduction may well be necessary to afford the species a reasonable chance of recovery.
In 1982, Congress added a provision to the Endangered Species Act (ESA), section 10(j), expressly permitting reintroduction and allowing some flexibility in managing reintroduced populations. Since then, the Interior Department has reintroduced whooping cranes, black-footed ferrets, California condors, gray wolves, and other species to areas from which they had been lost. Many of these reintroductions, especially those involving predators, have been highly controversial.
This article reviews Interior's implementation of section 10(j), and concludes that Interior has been too willing to exercise stringent control of reintroduced populations. It routinely designates introduced populations as "nonessential" to the survival of the species in the wild, a designation that affords them lesser protection against incompatible federal actions. The "nonessential" designation has been applied even when the introduced population contains the only members of the species outside captivity. Interior also routinely commits itself to limiting the introduced population to a designated area, often on federal land, capturing and returning any animals that stray from that area. Drawing on tort and takings law as well as the ESA, this article demonstrates that these control measures are not required, do not reduce controversy, and in some cases may not be permitted. It argues that they are inconsistent with the underlying goal of the ESA, which is the recovery of species in a wild, natural state, as free from human control as possible. At a minimum, Interior should explicitly balance the costs to wildness against the ecological and esthetic gains of reintroduction before adopting stringent measures to control reintroduced populations.
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