Law and Large Carnivore Conservation in the Rocky Mountains of the U.S. and Canada

The law governing large carnivores in the western U.S. and western Canada abounds in jurisdictional complexity. In the U.S., different federal and state laws govern large carnivore conservation efforts; species listed under the Endangered Species Act are generally protected, whereas those subject to state regulation can be hunted, trapped, or otherwise taken. Neither federal nor state environmental or land management laws specifically protect large carnivores, though these laws can be used to protect habitat. A similar situation prevails in Canada. Canadian federal law does not address large carnivore conservation, although the national parks provide some secure habitat. Provincial laws vary widely; none of these laws specifically protect large carnivores, but some provisions can be invoked to protect habitat. Although the two nations have not entered any bilateral treaties to protect large carnivores, several species receive limited protection under multilateral treaty obligations. Despite these jurisdictional complexities, the existing legal framework can be built upon to promote large carnivore conservation efforts, primarily through a legally protected reserve system. Whether the political will exists to utilize fully the available legal authorities remains to be seen.     

Hybridization,agency discretion,and implementation of the U.S. Endangered Species Act

The U.S. Endangered Species Act (ESA) requires that the “best available scientific and commercial data” be used to protect imperiled species from extinction and preserve biodiversity. However, it does not provide specific guidance on how to apply this mandate. Scientific data can be uncertain and controversial, particularly regarding species delineation and hybridization issues. The U.S. Fish and Wildlife Service (FWS) had an evolving hybrid policy to guide protection decisions for individuals of hybrid origin. Currently, this policy is in limbo because it resulted in several controversial conservation decisions in the past. Biologists from FWS must interpret and apply the best available science to their recommendations and likely use considerable discretion in making recommendations for what species to list, how to define those species, and how to recover them. We used semistructured interviews to collect data on FWS biologists’ use of discretion to make recommendations for listed species with hybridization issues. These biologists had a large amount of discretion to determine the best available science and how to interpret it but generally deferred to the scientific consensus on the taxonomic status of an organism. Respondents viewed hybridization primarily as a problem in the context of the ESA, although biologists who had experience with hybridization issues were more likely to describe it in more nuanced terms. Many interviewees expressed a desire to continue the current case‐by‐case approach for handling hybridization issues, but some wanted more guidance on procedures (i.e., a “flexible” hybrid policy). Field‐level information can provide critical insight into which policies are working (or not working) and why. The FWS biologists’ we interviewed had a high level of discretion, which greatly influenced ESA implementation, particularly in the context of hybridization.     

Voluntary conservation of endangered species: when does no regulatory assurance mean no conservation?

Voluntary conservation agreements are becoming increasingly important in implementing the Endangered Species Act on private land. We analyze when such agreements arise and what level of conservation they generate in the presence of uncertainty about future conservation benefits and irreversibility of habitat loss and species extinction. Our results suggest that the likelihood of an agreement and the resulting conservation levels depend on the background threat of regulation, the cost advantage offered by voluntary agreements, and the availability of assurances regarding future regulation. Under conditions likely to hold in practice, conservation agreements that offer assurances may generate higher levels of conservation and higher net social benefits than agreements that do not offer assurances. However, the resulting level of conservation will not be optimal, and may be lower than that attainable under regulation.     

Genetic Identification of Spotted Owls, Barred Owls, and Their Hybrids: Legal Implications of Hybrid Identity

Abstract:  Recent population expansion of Barred Owls (  Strix varia ) into western North America has led to concern that they may compete with and further harm the Northern Spotted Owl (  S. occidentalis caurina ), which is already listed as threatened under the U.S. Endangered Species Act (ESA). Because they hybridize, there is a legal need under the ESA for forensic identification of both species and their hybrids. We used mitochondrial control-region DNA and amplified fragment-length polymorphism (AFLP) analyses to assess maternal and biparental gene flow in this hybridization process. Mitochondrial DNA sequences (524 base pairs) indicated large divergence between Barred and Spotted Owls (13.9%). Further, the species formed two distinct clades with no signs of previous introgression. Fourteen diagnostic AFLP bands also indicated extensive divergence between the species, including markers differentiating them. Principal coordinate analyses and assignment tests clearly supported this differentiation. We found that hybrids had unique genetic combinations, including AFLP markers from both parental species, and identified known hybrids as well as potential hybrids with unclear taxonomic status. Our analyses corroborated the findings of extensive field studies that most hybrids genetically sampled resulted from crosses between female Barred Owls and male Spotted Owls. These genetic markers make it possible to clearly identify these species as well as hybrids and can now be used for research, conservation, and law enforcement. Several legal avenues may facilitate future conservation of Spotted Owls and other ESA-listed species that hybridize, including the ESA similarity-of-appearance clause (section 4[e]) and the Migratory Bird Treaty Act. The Migratory Bird Treaty Act appears to be the most useful route at this time.     

Property Rights Case Law and the Challenge to the Endangered Species Act

Congress is poised to initiate what could be a lengthy debate over the U.S. Endangered Species Act. In anticipation, proponents of strong Fifth Amendment private property rights guarantees have begun an aggressive campaign pitting those rights against those granted other species in the Act. Little case law exists that considers both property rights and wildlife protection, but inference can be drawn from Supreme Court opinions regarding property rights which may provide insight into likely judicial contributions to resolving tension between property rights and endangered species. We review key legislative history, provisions of the Endangered Species Act, relevant case law, and the implications of recent judicial trends that pertain to property and imperiled species. We then make recommendations that may improve implementation of this critical piece of environmental legislation.     

Genetic Data and the Listing of Species Under the U.S. Endangered Species Act

Abstract:  Genetic information is becoming an influential factor in determining whether species, subspecies, and distinct population segments qualify for protection under the U.S. Endangered Species Act. Nevertheless, there are currently no standards or guidelines that define how genetic information should be used by the federal agencies that administer the act. I examined listing decisions made over a 10-year period (February 1996–February 2006) that relied on genetic information. There was wide variation in the genetic data used to inform listing decisions in terms of which genomes (mitochondrial vs. nuclear) were sampled and the number of markers (or genetic techniques) and loci evaluated. In general, whether the federal agencies identified genetic distinctions between putative taxonomic units or populations depended on the type and amount of genetic data. Studies that relied on multiple genetic markers were more likely to detect distinctions, and those organisms were more likely to receive protection than studies that relied on a single genetic marker. Although the results may, in part, reflect the corresponding availability of genetic techniques over the given time frame, the variable use of genetic information for listing decisions has the potential to misguide conservation actions. Future management policy would benefit from guidelines for the critical evaluation of genetic information to list or delist organisms under the Endangered Species Act.     

Improving Peer Review of Listings and Recovery Plans under the Endangered Species Act

Abstract: We discuss several challenges encountered in peer review of Endangered Species Act listings and recovery plans, with particular attention to Meffe et al.'s (1998) statement on independent scientific review in natural resource management. First, Endangered Species Act listing documents and recovery plans pose a diverse array of scientific questions, and we suggest that overall effectiveness of peer review may be increased by segregating the critical issues and identifying specific reviewers for each issue. Some scientific reviewers may be unfamiliar with the decision standards prescribed by the Endangered Species Act and implementing policies. Unnecessary confusion could be prevented by providing reviewers with information about these standards and by requesting that reviewers clearly differentiate their assessment of decisions that must be based on available information from recommendations for future research. Short review periods constitute another constraint on careful review, but tight deadlines are fairly intractable in the context of the Endangered Species Act. We suggest that short time frames could be partially ameliorated by narrowing the scope of issues to be treated by each reviewer, and we discuss the issue of providing monetary compensation for efficient review. Finally, Endangered Species Act listing decisions and recovery planning may profit from more frequent peer review of intermediate analyses that precede publication of formal proposals or complete plans.     

Six Biological Reasons Why the Endangered Species Act Doesn't Work—And What to Do About It

Abstract: Law plays an important role in shaping land management decisions. The success of efforts to conserve biodiversity thus depends to a large degree on how well scientific knowledge is translated into public policy. Unfortunately, the Endangered Species Act, the United States's strongest legal tool for conserving bidodiversity, contains serious biological flaws. The statute itself, as well us agency regulations and policies that implement the law include provisions that fail to account accurately for important biological concepts such us ecosystem conservation, patch dynamics, and the probabilistic nature of stochastic threats to a species' persistence. Moreover, the procedures of federal agencies charged with implementing the Endangered Species Act in some cases make it difficult for interested outside reviewers to evaluate the agencies' scientific findings and methodology. However, the Endangered Species Act also gives interested individuals and groups several opportunities to provide input into the process of managing threatened and endangered species. Conservation biologists should practice focused advocacy by taking advantage of such opportunities to steer law in a more biologically sound direction.     

Taxonomic Considerations in Listing Subspecies Under the U.S. Endangered Species Act

Abstract:  The U.S. Endangered Species Act (ESA) allows listing of subspecies and other groupings below the rank of species. This provides the U.S. Fish and Wildlife Service and the National Marine Fisheries Service with a means to target the most critical unit in need of conservation. Although roughly one-quarter of listed taxa are subspecies, these management agencies are hindered by uncertainties about taxonomic standards during listing or delisting activities. In a review of taxonomic publications and societies, we found few subspecies lists and none that stated standardized criteria for determining subspecific taxa. Lack of criteria is attributed to a centuries-old debate over species and subspecies concepts. Nevertheless, the critical need to resolve this debate for ESA listings led us to propose that minimal biological criteria to define disjunct subspecies (legally or taxonomically) should include the discreteness and significance criteria of distinct population segments (as defined under the ESA). Our subspecies criteria are in stark contrast to that proposed by supporters of the phylogenetic species concept and provide a clear distinction between species and subspecies. Efforts to eliminate or reduce ambiguity associated with subspecies-level classifications will assist with ESA listing decisions. Thus, we urge professional taxonomic societies to publish and periodically update peer-reviewed species and subspecies lists. This effort must be paralleled throughout the world for efficient taxonomic conservation to take place.     

Accounting for Uncertainty in Making Species Protection Decisions

Abstract:  Uncertainty gives rise to two decision errors in implementing the U.S. Endangered Species Act: listing species that are not in danger of extinction and delisting species that are in danger of extinction. I evaluated four methods (minimum standard, precautionary principle, minimax regret criterion, adaptive management) for deciding whether to list or delist a species when there is uncertainty about how those decisions are likely to influence survival of the species. A safe minimum standard criterion preserves some minimum amount or safe standard (population) of a species unless maintaining that amount generates unacceptable social cost. The precautionary principle favors not delisting a species when there is insufficient evidence on the efficacy of state management plans for protecting them. A minimax regret criterion selects the delisting decision that minimizes the maximum loss likely to occur under alternative ecosystem states. When the cost of making a correct decision is less than the cost of making an incorrect decision, the minimax regret criteria indicates that delisting is the optimal decision. Active adaptive management employs statistically valid experiments to test hypotheses about the likely impacts of delisting decisions. Safe minimum standard and minimax regret criterion are not compatible with the U.S. Endangered Species Act. The precautionary principle comes closest to describing how federal agencies make delisting decisions. Active adaptive management is scientifically superior to the other methods but is costly and time consuming and may not be compatible with the U.S. National Environmental Policy Act.     

A simple economic model of endangered species preservation in the United States

Concern for the acceleration in threats to species diversity in the United States led to the passage of the Endangered Species Act of 1973. In this paper, this legislation is examined in an economic context. A simple model is developed where management and constraints on economic activity are substitutes in the production of species stocks. Whether economic growth constraints (the primary policy tool of the 1973 Act) are justified for preservation purposes depends on technical substitution possibilities, relative cost ratios, and the existence of budget constraints for species management. Since the same combination of these factors will not occur for all species, it is argued that more flexibility in endangered species policy may preserve the same levels of species stocks at lower costs to society.     

Incorporating Climate Science in Applications of the U.S. Endangered Species Act for Aquatic Species

Aquatic species are threatened by climate change but have received comparatively less attention than terrestrial species. We gleaned key strategies for scientists and managers seeking to address climate change in aquatic conservation planning from the literature and existing knowledge. We address 3 categories of conservation effort that rely on scientific analysis and have particular application under the U.S. Endangered Species Act (ESA): assessment of overall risk to a species; long‐term recovery planning; and evaluation of effects of specific actions or perturbations. Fewer data are available for aquatic species to support these analyses, and climate effects on aquatic systems are poorly characterized. Thus, we recommend scientists conducting analyses supporting ESA decisions develop a conceptual model that links climate, habitat, ecosystem, and species response to changing conditions and use this model to organize analyses and future research. We recommend that current climate conditions are not appropriate for projections used in ESA analyses and that long‐term projections of climate‐change effects provide temporal context as a species‐wide assessment provides spatial context. In these projections, climate change should not be discounted solely because the magnitude of projected change at a particular time is uncertain when directionality of climate change is clear. Identifying likely future habitat at the species scale will indicate key refuges and potential range shifts. However, the risks and benefits associated with errors in modeling future habitat are not equivalent. The ESA offers mechanisms for increasing the overall resilience and resistance of species to climate changes, including establishing recovery goals requiring increased genetic and phenotypic diversity, specifying critical habitat in areas not currently occupied but likely to become important, and using adaptive management. Incorporación de las Ciencias Climáticas en las Aplicaciones del Acta Estadunidense de Especies en Peligro para Especies Acuáticas     

Impacts of phylogenetic nomenclature on the efficacy of the U.S. Endangered Species Act

Cataloging biodiversity is critical to conservation efforts because accurate taxonomy is often a precondition for protection under laws designed for species conservation, such as the U.S. Endangered Species Act (ESA). Traditional nomenclatural codes governing the taxonomic process have recently come under scrutiny because taxon names are more closely linked to hierarchical ranks than to the taxa themselves. A new approach to naming biological groups, called phylogenetic nomenclature (PN), explicitly names taxa by defining their names in terms of ancestry and descent. PN has the potential to increase nomenclatural stability and decrease confusion induced by the rank‐based codes. But proponents of PN have struggled with whether species and infraspecific taxa should be governed by the same rules as other taxa or should have special rules. Some proponents advocate the wholesale abandonment of rank labels (including species); this could have consequences for the implementation of taxon‐based conservation legislation. I examined the principles of PN as embodied in the PhyloCode (an alternative to traditional rank‐based nomenclature that names biological groups based on the results of phylogenetic analyses and does not associate taxa with ranks) and assessed how this novel approach to naming taxa might affect the implementation of species‐based legislation by providing a case study of the ESA. The latest version of the PhyloCode relies on the traditional rank‐based codes to name species and infraspecific taxa; thus, little will change regarding the main targets of the ESA because they will retain rank labels. For this reason, and because knowledge of evolutionary relationships is of greater importance than nomenclatural procedures for initial protection of endangered taxa under the ESA, I conclude that PN under the PhyloCode will have little impact on implementation of the ESA. Impactos de la Nomenclatura Filogenética sobre la Eficiencia del Acta Estadunidense para las Especies en Peligro     

A Critique of the Recovery of Greenback Cutthroat Trout

Abstract: There are no examples of recovery of fish listed under the U.S. Endangered Species Act, but the number of federally threatened greenback cutthroat trout (  Oncorhynchus clarki stomias ) populations is approaching the delisting goal. We evaluated recovery of this subspecies in light of developing theory in conservation biology and with regard to recovery of other salmonids in the inland western United States. Four of the five criteria used to define populations that would count toward delisting appeared to underestimate the risk of extinction of those populations. Typically, recovery goals for numbers of greenback cutthroat trout populations were less stringent than those for other inland salmonids petitioned for listing or listed as threatened under the Endangered Species Act and were comparable to those for a federally endangered species. Before delisting is considered, we propose that historical populations be replicated in additional waters to protect genetic diversity and that existing populations be enlarged to reduce their vulnerability to demographic variation, to increase their access to refugia, and to permit reestablishment of mobile life histories. Existing stocks should also be evaluated to determine whether they represent distinct population segments.     

Mitigation of Habitat "Take": Application to Habitat Conservation Planning

One of the most important provisions of the U.S. Endangered Species Act precludes the "taking" of listed species on both public and private land. In past Endangered Species Act litigation, take has been broadly interpreted to include the destruction or modification of habitats as well as the direct killing of animals. This requirement created an extensive burden on private landowners to provide habitats for listed species. This burden was substantially lessened when the ESA was modified in 1982 to allow incidental takings conditioned on preparation of a satisfactory "habitat conservation plan." Because the majority of listed species are imperiled due to habitat modification, most habitat conservation plans must demonstrate defensible methods to mitigate against incidental habitat loss. A review of HCPs for the Northern Spotted Owl ( Strix occidentalis), and other species, indicates that mitigation solutions are often arbitrary, lacking an empirical foundation in the species' life history requirements. Based on data from the Spotted Owl, we illustrate a biologically based method for estimating the areal requirements necessary to mitigate against the take of essential habitats. Toward this goal we adopt the concept of "core area," that portion of an animal's home range that receives disproportionate use. We estimated core areas by means of the adaptive kernel density function and tested against a null distribution of animal use that assumes a bivariate, uniform distribution of locations within the home range. The method we illustrate, which is defensible, repeatable, and empirical, is a clear improvement over the ad hoc methods used in many habitat conservation plans. Further, the methods we propose should be applicable to a large number of terrestrial species for which home range is a meaningful concept.     

Climate Change,Marine Environments,and the U.S. Endangered Species Act

Climate change is expected to be a top driver of global biodiversity loss in the 21st century. It poses new challenges to conserving and managing imperiled species, particularly in marine and estuarine ecosystems. The use of climate‐related science in statutorily driven species management, such as under the U.S. Endangered Species Act (ESA), is in its early stages. This article provides an overview of ESA processes, with emphasis on the mandate to the National Marine Fisheries Service (NMFS) to manage listed marine, estuarine, and anadromous species. Although the ESA is specific to the United States, its requirements are broadly relevant to conservation planning. Under the ESA, species, subspecies, and “distinct population segments” may be listed as either endangered or threatened, and taking of most listed species (harassing, harming, pursuing, wounding, killing, or capturing) is prohibited unless specifically authorized via a case‐by‐case permit process. Government agencies, in addition to avoiding take, must ensure that actions they fund, authorize, or conduct are not likely to jeopardize a listed species’ continued existence or adversely affect designated critical habitat. Decisions for which climate change is likely to be a key factor include: determining whether a species should be listed under the ESA, designating critical habitat areas, developing species recovery plans, and predicting whether effects of proposed human activities will be compatible with ESA‐listed species’ survival and recovery. Scientific analyses that underlie these critical conservation decisions include risk assessment, long‐term recovery planning, defining environmental baselines, predicting distribution, and defining appropriate temporal and spatial scales. Although specific guidance is still evolving, it is clear that the unprecedented changes in global ecosystems brought about by climate change necessitate new information and approaches to conservation of imperiled species. El Cambio Climático, los Ecosistemas Marinos y el Acta Estadunidense de Especies en Peligro     

A Retrospective Evaluation of the Global Decline of Carnivores and Ungulates

Assessing temporal changes in species extinction risk is necessary for measuring conservation success or failure and for directing conservation resources toward species or regions that would benefit most. Yet, there is no long‐term picture of genuine change that allows one to associate species extinction risk trends with drivers of change or conservation actions. Through a review of 40 years of IUCN‐related literature sources on species conservation status (e.g., action plans, red‐data books), we assigned retrospective red‐list categories to the world's carnivores and ungulates (2 groups with relatively long generation times) to examine how their extinction risk has changed since the 1970s. We then aggregated species’ categories to calculate a global trend in their extinction risk over time. A decline in the conservation status of carnivores and ungulates was underway 40 years ago and has since accelerated. One quarter of all species (n = 498) moved one or more categories closer to extinction globally, while almost half of the species moved closer to extinction in Southeast Asia. The conservation status of some species improved (toward less threatened categories), but for each species that improved in status 8 deteriorated. The status of large‐bodied species, particularly those above 100 kg (including many iconic taxa), deteriorated significantly more than small‐bodied species (below 10 kg). The trends we found are likely related to geopolitical events (such as the collapse of Soviet Union), international regulations (such as CITES), shifting cultural values, and natural resource exploitation (e.g., in Southeast Asia). Retrospective assessments of global species extinction risk reduce the risk of a shifting baseline syndrome, which can affect decisions on the desirable conservation status of species. Such assessments can help conservationists identify which conservation policies and strategies are or are not helping safeguard biodiversity and thus can improve future strategies. Una Evaluación Retrospectiva de la Declinación Global de Carnívoros y Ungulados     

Dynamics of Hybridization and Introgression in Red Wolves and Coyotes

Abstract:  Hybridization and introgression are significant causes of endangerment in many taxa and are considered the greatest biological threats to the reintroduced population of red wolves ( Canis rufus ) in North Carolina (U.S.A.). Little is known, however, about these processes in red wolves and coyotes ( C. latrans ). We used individual-based simulations to examine the process of hybridization and introgression between these species. Under the range of circumstances we considered, red wolves in colonizing and established populations were quickly extirpated, persisted near the carrying capacity, or had intermediate outcomes. Sensitivity analyses suggested that the probabilities of quasi extinction and persistence of red wolves near the carrying capacity were most affected by the strength of two reproductive barriers: red wolf challenges and assortative mating between red wolves and coyotes. Because model parameters for these barriers may be difficult to estimate, we also sought to identify other predictors of red wolf population fate. The proportion of pure red wolves in the population was a strong predictor of the future probabilities of red wolf quasi extinction and persistence. Finally, we examined whether sterilization can be effective in minimizing introgression while allowing the reintroduced red wolf population to grow. Our results suggest sterilization can be an effective short-term strategy to reduce the likelihood of extirpation in colonizing populations of red wolves. Whether red wolf numbers are increased by sterilization depends on the level of sterilization effort and the acting reproductive barriers. Our results provide an outline of the conditions likely required for successful reestablishment and long-term maintenance of populations of wild red wolves in the presence of coyotes. Our modeling approach may prove generally useful in providing insight into situations involving complex species interactions when data are few.     

The effectiveness of the US endangered species act: An econometric analysis using matching methods

Diametrically opposed views of the effectiveness of the United States Endangered Species Act (ESA) co-exist more than 30 years after the Act's creation. The evidence marshaled to date for and against the ESA suffers from a problem common in analyses of biodiversity protection measures: the absence of a well-chosen control group. We demonstrate how matching methods can be used to select such a control group and thereby estimate how species listed under the ESA would have fared had they not been listed. Our results show that listing a species under the ESA is, on average, detrimental to species recovery if not combined with substantial government funds. In contrast, listed species with such funding tend to improve. Our analysis offers not only new insights into a controversial debate, but also a methodology to guide conservation scientists in evaluating the effectiveness of society's responses to biodiversity loss.     

Resolving Critical Habitat Designation Failures: Reconciling Law, Policy, and Biology

Abstract:  The U.S. Endangered Species Act (ESA) requires designation of critical habitat concurrent with species listing. The U.S. Fish and Wildlife Service often has not designated critical habitat, based on the legal exceptions in the ESA of "not prudent" or "not determinable." This lack of habitat designation has led to numerous lawsuits and court orders to designate critical habitat for listed species. Court-mediated implementation of critical habitat is costly and delays listing for at-risk species. Legal, policy, judicial, and biological issues all contribute to the current inability of the law as enforced to lead to timely and cost-effective critical habitat designation. Although increased appropriations and delaying critical habitat designation until recovery planning have been proposed as solutions, we find that it will be essential to change the critical-habitat guidelines to a decision-analysis framework to make critical habitat scientifically and legally workable as a conservation tool.