By Stacy Shelton, Staff Editor, Vermont Journal of Environmental Law. This post is part of the Environmental Law Review Syndicate. Read the original here.
“If climate change continues unabated and as rapidly as a few models predict, saving at least some species will require solutions more radical than creating parks and shielding endangered species from bullets, bulldozers, and oil spills: It will require moving them.”
With millions of gallons of oil gushing into the Gulf of Mexico from a blown-out well in the summer of 2010, the U.S. Fish and Wildlife Service and its partners settled on a Hail Mary plan to save a generation of sea turtles: Translocation. Using specially outfitted FedEx trucks, federal and state biologists moved about 25,000 turtle eggs from Gulf of Mexico beaches to the Kennedy Space Center on Florida’s Atlantic Coast, away from the oil’s path. About half the eggs hatched, and the hatchlings were released into the Atlantic Ocean. In their calculation, the biologists had weighed the risks of reduced hatchling success and interfering with their ability to imprint on natal beaches by moving the turtles against the probability the hatchlings would swim into the oil and certain death if they remained in place.
Today, climate change has biologists working out similar but exponentially more complicated calculations in deciding whether to move species. Instead of simple translocation–which is the human-assisted movement of a species within its historic range—biologists are considering whether the ecological disruptions due to rising temperatures will necessitate moving species outside their historic range as their native habitats become inhospitable. Such assisted movement has been termed “managed relocation,” defined by scientists as the intentional act of moving a species outside its historic range in response to climate change. Similar terms for managed relocation are “assisted migration” and “assisted colonization.” The focus of this paper is on managed relocation and the legal, scientific, and political issues it raises.
Managed relocation is controversial. Ambivalence is reflected at the highest levels of the U.S. Fish and Wildlife Service, the federal agency most responsible for wildlife management at a national scale. In 2009, U.S. Fish and Wildlife Service Director Dan Ashe — who was then the science advisor to the director — said managed relocation is “politically complicated, socially complicated, scientifically complicated, [and] ethically complicated.” Six years later, despite the Service’s 2010 climate change strategy that specifically called for developing a policy for managed relocation, Ashe did not have much more to add. In a recent New York Times article, he said there is no biological or ethical framework for deciding how to manage species in the face of climate change and other impacts. One could argue that job belongs largely to the Service.
That’s not to say there has been no activity. In response to a 2010 Congressional call for action, the Service is co-chairing the National Fish, Wildlife & Plants Climate Adaptation Strategy Partnership along with the National Oceanic and Atmospheric Administration and the New York Division of Fish, Wildlife, and Marine Resources. On the agenda is investigating the legal and policy implications of managed relocation. A committee consisting of the National Park Service, U.S. Fish and Wildlife Service, and U.S. Forest Service is currently examining federal and state agencies’ policies, and is discussing ways to collaborate on a unified policy.
Part II provides necessary background information, including current policies related to managed relocation. Part III discusses solutions, suggesting how the Strategic Partnership committee could move forward. Unlike managed relocation, translocation has a long track record that may portend how managed relocation could proceed. Indeed, translocation data should help answer the most fundamental question of all: will it work?
While the ultimate success of the sea turtle egg transplantation may never be known, other translocations have proven highly successful. Perhaps the best known is that of the gray wolf. In 1995 and 1996, the Service transported 31 gray wolves from Canada to Yellowstone National Park. Today there are more than 1,657 wolves in 282 packs — including 85 breeding pairs — in Montana, Idaho and Wyoming. Many other, lesser known successes are available for study as well. One is the robust redhorse, a sucker fish once thought extinct until a Georgia biologist rediscovered it in 1991. Since then, state and federal biologists have propagated and translocated the fish to Atlantic Slope rivers across Georgia, South Carolina and North Carolina where wild populations are taking hold.
Translocation has worked. Its successes give hope to those counting on managed relocation to maintain biodiversity in a fast-changing climate.
A. Why intervene?
The changing climate is already impacting fish and wildlife. In recent years, the Fish and Wildlife Service has cited climate change as a major threat to the survival of many species it has listed under the Endangered Species Act. For example, when the Service listed the red knot bird as threatened in 2014, the agency found climate change is increasing predation rates on red knot eggs and chicks in their Arctic breeding grounds. The problem is a ripple effect: as climate change dampens the lemming population, the arctic fox has begun to prey on the bird. In Florida, more than half of the federally listed species are threatened by sea-level rise, including the endangered Key deer and the Bartram’s scrub-hairstreak butterfly. On the global scale, a study of sample regions covering twenty percent of the Earth’s land surface found fifteen to thirty-seven percent of species will be committed to extinction by 2050 based on mid-range climate change scenarios.
Those grim figures are on top of what some scientists have dubbed the “Sixth Extinction,” the first caused by human activity. Due to development, deforestation and other human-related threats, scientists estimate species’ extinction rates are 50 to 500 times higher than the long-term average, a pace that may increase tenfold as temperatures continue rising. For many resource managers, policymakers, and scientists, climate change is forcing a choice between witnessing mass extinctions and manipulating species’ distributions in order to maintain biodiversity. Camille Parmesan, an early advocate of assisted colonization or managed relocation, contends moving species is the only answer for those that cannot escape to a suitable climate or adapt to the rising temperatures. One of these species is the quino checkerspot butterfly in southern California. As a hotter, drier climate alters their habitat, Los Angeles and its urban offshoots are blocking the butterfly from moving to cooler, wetter climes.
B. Current policies
In 2010, the U.S. Fish and Wildlife Service finalized its climate change strategy in a document titled Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerating Climate Change. In Objective 2.6, the Service set a goal to review laws, regulations and polices to determine what changes may be necessary to support effective adaptation and mitigation responses. The Service identified its primary focus as developing new policies, such as how to handle the managed relocation or translocation of species. The Service has yet to follow through.
Instead, in 2013, the Service, along with the National Oceanic and Atmospheric Administration and state and tribal partners finalized the National Fish, Wildlife, and Plants Climate Adaptation Strategy, another strategy document that lays out more goals. According to the Federal Register notice, the document was designed to “inspire and enable natural resource professionals and other decision makers to take action to conserve the nation’s fish, wildlife, plants, and ecosystem functions, as well as the human uses and values these natural systems provide, in a changing climate.” The Strategy stated natural resource managers may need to consider direct intervention such as translocation or assisted relocation to save a species. But because such actions are untested, they “need to be fully explored before moving forward.” Action 2.2.2 in the report called for developing criteria and guidelines “to foster the appropriate use, and discourage inappropriate use of translocation, assisted relocation, and captive breeding as climate adaptation strategies.” Action 2.2.3 called for actively managing populations of vulnerable species – including translocation – to ensure continued sustainability, biodiversity, human use and other ecological functions.
Meanwhile, ad hoc managed relocations are already occurring. The most cited example in the U.S. is the transfer of Torreya taxifolia, a Florida conifer, to North Carolina in 2008 by a group of botanists and environmentalists called the Torreya Guardians. Because plants and trees do not receive the same protections as imperiled animals, they can be moved with impunity. But even animals—if they are not listed under the Endangered Species Act—may be moved with little to no regulatory oversight.
Despite the absence of a policy, the Fish and Wildlife Service has also moved at least four species outside their historic range: The red wolf, Guam rail, desert pupfish and snail darter. The wolf was temporarily moved to Southeastern coastal islands to allow the species to adapt to isolated locations before being relocated to a national wildlife refuge in North Carolina. The Guam rail was moved to an island 37 miles north after the brown tree snake decimated its native habitat. The pupfish was established 27 miles northwest of its historic range. When the U.S. Army Corps of Engineers built the Tellico Dam in its only known habitat, the snail darter was moved outside of its range.
As more species face climate change threats in their home habitats, efforts to save them through managed relocation are likely to continue—with or without a sound, reasoned, and comprehensive national policy.
C. Legal framework
The Endangered Species Act gives the Fish and Wildlife Service broad discretion to conserve species. The Act defines conservation as using “all methods and procedures which are necessary to bring species” back from the brink of extinction, including “transplantation.” The Act does not define transplantation, necessitating a plain meaning interpretation. According to Merriam-Webster, the definition of the verb transplant is “to move a person or animal to a new home.” Even though Congress was not contemplating climate change at the time the Act was written in 1973 and amended in 1982, the law seems to provide the Service with the authorization needed to relocate species in order to save them.
Section 10(j) of the Act, which was added in 1982, allows the Service to release endangered or threatened species outside their current range if “release will further the conservation of such species.” However, to quell local opposition to the introduction of these so-called experimental populations of federally protected species into previously unoccupied areas, the Service promulgated fairly narrow regulations in 1984. The regulations prohibit experimental populations from being introduced in areas outside their historic range except “in the extreme case that the primary habitat of the species has been unsuitably and irreversibly altered or destroyed.”
During the comment period for the proposed rule, the National Wildlife Federation and the U.S. Bureau of Reclamation suggested the so-called primary habitat restriction was an unnecessary constraint not intended by Congress. The Service responded the restriction is the “most biologically acceptable approach to utilize in species introductions.” The Service said regularly introducing listed species into new habitats as exotic species would violate the Act because it “abandons the statutory directive to conserve species in native ecosystems” and subjects listed species to doubtful survival chances and the potential to alter the species’ gene pool.
Aside from its internal constraints, the Service is further restricted from pursuing managed relocation as a climate adaptation tool by Executive Order 13,112, which was signed by President Clinton in 1999. The order prohibits federal agencies from introducing invasive species unless the agency has determined the benefits clearly outweigh the potential harm and that all feasible measures to minimize the risk will be undertaken. An earlier Executive Order, No. 11,987 signed by President Carter, prohibits the introduction of exotic species on federally owned land and water unless either the Secretary of Agriculture or the Secretary of the Interior find such introduction will not adversely affect the natural ecosystem.
But whether the law needs to be changed in order for the Service to conduct managed relocation is uncertain. Some legal scholars maintain the agency has the authority to move species outside their home ranges. Others argue the laws, regulations and federal policies make assisted colonization difficult. Perhaps the greatest obstacle, though, is the dominant view that natural resource management should preserve wild nature, not manipulate it.
In short, the current regulatory framework for managed relocation is fragmented and variable, and often nonexistent. States have the authority to regulate the movement of most flora and fauna, though they rarely exercise it. The federal government’s jurisdiction is limited to listed species, migratory birds and noxious species under the Lacey Act, or those species on federally owned lands. Before any comprehensive program of relocation is undertaken, natural resource management agencies should ideally take three steps: first, review their own regulations and policies and make any necessary adjustments; second, coordinate with one another and non-governmental stakeholders; and third, establish a unified policy that determines how, when, and where to implement managed relocations.
D. Scientific resistance
The scientific community is divided on how and whether to implement managed relocation due to ecological and economic concerns, as well as the lack of supporting research. Some conservation biologists do not believe moving species is the best management response to climate change. One paper called the concept of moving species outside their natural ranges “planned invasions” that carry high risks including the spread of pathogens, extirpation of native species, and increased hybridization. The history of conservation biology is replete with introductions gone wrong. Just one example is the managed relocation of freshwater shrimp into Flathead Lake in Montana for the purpose of enhancing the diet of another introduced species, the kokanee salmon. The bottom-dwelling shrimp avoided the salmon—which fed in the shallow waters—and wound up outcompeting the fish for food. Consequently, the salmon population crashed, as did the eagle population that depended on the salmon.
For critics of managed relocation, a major cause for concern is that the scientific community cannot explain why different species had divergent responses to past climate changes. This suggests that trying to predict which species to relocate is a gamble. The precautionary principle suggests no action is the preferred option.
Managed relocations of species stuck in increasingly inhospitable habitats due to climate change have already occurred and will likely continue and expand. Both government and private groups are engaged in the efforts. One of the many dangers inherent in such ad hoc activity is that an agency or conservation group acting in isolation with insufficient information is more likely to cause the ecological damage opponents fear. Additionally, plants and animals are already feeling the effects of climate change, and some are not adjusting well. A subset of those species is unable to move to a more suitable environment, either because they are slow migrators or cannot migrate, or because human-made roadblocks are in their way. They will likely go extinct without intervention. For these reasons, the Fish and Wildlife Service and other federal and state natural resources management agencies, working with key environmental organizations, need to establish a unified, comprehensive national policy for managed relocation.
Fortunately, the policy-writing task is already in the hands of the National Fish, Wildlife & Plants Climate Adaptation Strategy Partnership. Unfortunately, due to the urgency required, the Partnership is moving slowly. The Service, NOAA, and the other federal and state agencies should prioritize the Partnership’s work and set a one-year, hard deadline for completing critical tasks, which ought to include finalizing a managed relocation policy. States in particular need to be fully engaged since most plants and animals fall within their jurisdictions.
Specifically, the national policy should identify which plants and animals are the best candidates for moving, the likely host habitats for those species, and the environmental triggers that will activate the relocation plan. As the science continues to develop, the policy should be adjusted accordingly. Finally, to optimize the chances for success, the agencies need to continue soliciting public input, especially where the policy contemplates moving a predator species.
Legally, federal and state agencies have additional work to do. While the ESA does not overtly prohibit such relocations, the Fish and Wildlife Service’s own regulations and policies create obstacles that must be addressed. As a starting point, the Service could engage the Department of Interior’s Office of the Solicitor to provide a detailed legal analysis of the laws and regulations that may be triggered by managed relocation, along with recommendations on how to address any conflicts with a proposed managed relocation policy. Other federal and state agencies should begin similar efforts.
A national managed relocation policy is needed. Natural resource managers should not let the lack of scientific certainty deter them from setting one.
Managed relocation involves risk, but so does doing nothing. In the absence of scientific data, natural resource managers still need to know how best to manage plants and animals affected by climate change. Moving species outside their historic ranges may not prevent mass extinctions and it is unlikely to work for every affected species. However, based on translocation data and isolated instances of managed relocations, moving some species is likely to be successful. The Service and its federal, state, and private partners should establish a clear, detailed, national managed relocation policy that will be adjusted as the science catches up. For the best results, the policy should take into account the scientific uncertainty and establish conservative parameters and alternative actions that protect both the target species and the receiving ecosystem.
 Ben A. Minter & James P. Collins, Move It or Lose It? The Ecological Ethics of Relocating Species Under Climate Change, 20 Ecological Applications 1801 (2010).
 Press Release, U.S. Fish & Wildlife Serv., Sea Turtle Nests to Remain on Beaches of Northwest Florida and Alabama (Aug. 25, 2010), http://www.fws.gov/southeast/news/2010/r10-060.html.
 U.S. Fish & Wildlife Serv., Sea Turtle Late-Term Nest Collection and Hatchling Release Plan: Frequently Asked Questions (July 28, 2010), http://www.fws.gov/home/dhoilspill/pdfs/TurtleNestHatchProgram.pdf [hereinafter Hatchling Release Plan].
 Patrick D. Shirey & Gary A. Lamberti, Assisted Colonization Under the U.S. Endangered Species Act, 3 Conservation Letters 45, 45 (2010).
 Mark W. Schwartz et al., Managed Relocation: Integrating the Scientific, Regulatory, and Ethical Challenges, 62 BioScience 732, 733 (Aug. 2012).
 Devin Powell, Should Species be Relocated to Prevent Extinction?, livescience.com (Aug. 24, 2009, 6:49 AM), http://www.livescience.com/10575-species-relocated-prevent-extinction.html.
 Erica Goode, A Shifting Approach to Saving Endangered Species, N.Y. Times (Oct. 5, 2015), http://nyti.ms/1Ng1OzG.
 Nat’l Fish, Wildlife and Plants Climate Adaptation P’ship, National Fish, Wildlife and Plants Climate Adaptation Strategy: About Us (2014), http://www.wildlifeadaptationstrategy.gov/about.php.
 E-mail from Cat Hawkins Hoffman, Acting Chief, Nat’l Park Serv. Climate Change Response Program, to author (Nov. 30, 2015, 6:37 PM EST) (on file with author).
 The Service opted not to track the hatchlings. Hatchling Release Plan, supra note 3.
 National Park Serv., Yellowstone National Park: Wolf Restoration (last visited Nov. 29, 2015), http://www.nps.gov/yell/learn/nature/wolf-restoration.htm.
 U.S. Fish & Wildlife Serv., Gray Wolves in the Northern Rocky Mountains: News, Information and Recovery Status Reports (last updated Apr. 13, 2015), http://www.fws.gov/mountain-prairie/species/mammals/wolf/.
 Final Rule to List the Rufa Red Knot as a Threatened Species, 79 Fed. Reg. 73,708 (Dec. 11, 2014), http://www.fws.gov/northeast/redknot/pdf/2014_28338_fedregisterfinalrule.pdf.
 Id. The lemming is a rodent.
 Jacklyn Lopez, Biodiversity on the Brink: The Role of “Assisted Migration” in Managing Endangered Species Threatened with Rising Seas, 39 Harv. Envtl. L. Rev. 157, 160 (2015); Press Release, U.S. Fish & Wildlife Serv., U.S. Fish and Wildlife Service Lists the Florida Leafwing and Bartram’s Scrub-Hairstreak Butterflies as Endangered, and Designates Critical Habitat (Aug. 11, 2014), http://www.fws.gov/news/ShowNews.cfm?ID=B7139119-9A7E-41BC-DBC44DB976E62F68; U.S. Fish & Wildlife Serv., No Place to Go, http://www.fws.gov/southeast/climate/stories/keydeer.html (last updated Sept. 24, 2010).
 Chris D. Thomas et al., Extinction Risk from Climate Change, 427 Nature 145, 145–48 (Jan. 8, 2004).
 Elizabeth Kolbert, The Sixth Extinction: An Unnatural History 6–7 (2014).
 Joe Roman, Listed: Dispatches from America’s Endangered Species Act 34 (2011).
 Schwartz, supra note 5, at 734.
 David Appell, Can “Assisted Migration” Save Species from Global Warming?, Sci. Am., Feb. 16, 2009.
 Emma Morris, Moving on Assisted Migration, 2 Nature 112 (Sept. 2008).
 U.S. Fish & Wildlife Service, Rising to the Urgent Challenge: Strategic Plan for Responding to Accelerating Climate Change (2010), http://www.fws.gov/home/climatechange/pdf/CCStrategicPlan.pdf.
 National Fish, Wildlife, and Plants Climate Adaptation Strategy, 78 Fed. Reg. 19,514 (Apr. 1, 2013).
 National Fish, Wildlife and Plants Climate Adaptation Partnership, National Fish, Wildlife and Plants Climate Adaptation Strategy 60 (2012), http://www.wildlifeadaptationstrategy.gov/pdf/NFWPCAS-Final.pdf.
 Id. at 61.
 Patrick Parenteau, Species and Ecosystem Impacts, in The Law of Adaptation to Climate Change: U.S. and International Aspects 307, 317 (Michael B. Gerrard & Katrina Fischer Kuh eds., 2012).
 Schwartz, supra note 5, at 737–38.
 Alejandro Camacho, Assisted Migration: Redefining Nature and Natural Resource Law Under Climate Change, 27 Yale J. on Reg. 171, 203–204 (Summer 2010); Parenteau, supra note 30, at 329.
 Camacho, supra note 32, at 203.
 Id. at 204.
 Parenteau, supra note 30, at 329.
 Endangered Species Act, 16 U.S.C. § 1532(3) (2015).
 § 1539(j).
 Final Rule: Endangered and Threatened Wildlife and Plants; Experimental Populations, 49 Fed. Reg. 33,885, 33,886 (Aug. 27, 1984) (codified at 50 C.F.R. pt. 17) [hereinafter Final Rule]; see also Shirey & Lamberti, supra note 4, at 49.
 Final Rule, supra note 39, at 33,890; Shirey & Lamberti, supra note 4, at 49.
 Final Rule, supra note 39, at 33,890.
 Exec. Order No. 13,112, 64 Fed. Reg. 6,183–86 (Feb. 8, 1999).
 Id. at 6,184.
 Exec. Order No. 11,987, 3 C.F.R. 119 (1977).
 E.g. J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B.U. L. Rev. 1, 53 (2008); John Kostyack & Dan Rohlf, Conserving Endangered Species in an Era of Global Warming, 38 Envtl. L. Reporter 10203, 10204, 10209–10; and Lopez, supra note 17, at 190.
 Camacho, supra note 32, at 188–202.
 Id. at 211–16.
 Schwartz, supra note 5, 737–38.
 National Fish, Wildlife and Plants Climate Adaptation Partnership, National Fish, Wildlife and Plants Climate Adaptation Strategy: Taking Action, A Progress Report 20 (2014), http://www.wildlifeadaptationstrategy.gov/pdf/Taking-Action-progress-report-2014.pdf.
 Anthony Ricciardi & Daniel Simberloff, Assisted ColonizationIis Not a Viable Conservation Strategy, 24 Trends in Ecology and Evolution 248, 248–53 (2009).
 Id. at 249.
 Id. at 249-50.
 Schwartz, supra note 5, at 734.