The National Wildlife Refuges

Coordinating A Conservation System Through Law

Robert L. Fischman

• Verlag: Island Press
• Jahr: 2012
• ISBN:
  9781597269094
• Thema: Law
• Thema: Law Theory & Practice

The National Wildlife Refuges provides a comprehensive examination of the laws and policies governing management of the national wildlife refuges, offering for the first time a practical description and analysis of the management regime outlined in the 1997 National Wildlife Refuge System Improvement Act. The 1997 act is the first new statute governing a system of federal public lands enacted since the 1970s. The evolution of law governing the refuge system parallels broader trends in public land management and environmental protection, making the refuge system a valuable case study for those interested in environmental management, policy, and law. The book:

• describes the National Wildlife Refuge System and its legal history
• offers a detailed breakdown of the 1997 act, including its purpose, designated uses, comprehensive planning provisions, substantive management criteria, and public participation aspects
• considers individual refuges and specific issues that apply to only certain refuges
• discusses oil and gas development in refuges
• offers observations about how well the refuge system law resolves historic tensions and achieves modern conservation goals

A separate chapter examines the special rules governing refuges in Alaska and considers the contentious debate over the Arctic National Wildlife Refuge. Appendixes offer a reference of acronyms and abbreviations, a chronology of the refuge system's development, key statutory provisions (including the full text of the 1997 act), and basic information about each national wildlife refuge.

With an approach to conservation that is increasingly prevalent around the world, the National Wildlife Refuge System is an important model for sustainable resource management, and the book's analyses of the refuge system's ecological management criteria, conflicts between primary and subsidiary uses, and tension between site-specific standards and uniform national goals all offer important lessons for environmental governance generally.

1

Introduction

Imagine a network of federal lands and waters designed to sustain healthy ecosystems. Resource managers, taking advantage of appropriate opportunities, would restore degraded habitat and enhance the diversity of wildlife. The network would comprise hundreds of individual units, administered in a coordinated fashion to achieve large-scale goals such as supporting migratory animals and maintaining regional variations in biodiversity. It would facilitate connections between habitats to allow species to escape disturbance and disease, and to adapt to climate change. Such a system would serve as a refuge for animals and plants, especially those imperiled by activities on private lands. However, it would permit a wide range of other uses that do not interfere with the central conservation mission of the system. These compatible uses would build a form of sustainable development that allows people to prosper and enjoy the public lands without impairing living resources for future generations. This is the aspiration for the National Wildlife Refuge System.

Now, consider the condition of the actual national wildlife refuges. They are created under a hodgepodge of statutes, presidential orders, or administration actions that often establish location-specific variations on a nature protection theme. These public lands are either acquired or reserved from the existing public estate. The refuges are a jumble of sizes, shapes, and types. The bulk of the 95 million acre Refuge System comprises approximately 550 named national wildlife refuges. However, 50 coordination areas and thousands of waterfowl production areas also contribute to the System. The refuges range from the immense 19.3 million acre Arctic National Wildlife Refuge to small, acre-sized units near urban areas on the Atlantic coast. Every state has at least one national wildliferefuge.

The U.S. Fish and Wildlife Service (FWS, or Service) manages the refuges under austere budgets and nearly constant pressure for economic development, and with little political clout. Sometimes the FWS shares refuge control with states, other federal agencies, mineral rights holders, and landowners who have ceded only conservation easements to the federal government. Most refuges are far from an uncontaminated, pristine wilderness condition. Prior, adjacent, and upstream uses shape the circumstances and limit the conservation potential of individual refuges. Incompatible activities persist within the refuges themselves.

This book discusses the law that governs management of the national wildlife refuges. Along with each refuge’s peculiar history, context, and physical characteristics, the law determines how well the FWS can close the gap between current circumstance and idealized aspiration. In an effort to improve coordination and conservation across the hundreds of refuges, Congress enacted the 1997 Refuge Improvement Act. The statute is the most recent legislative charter seeking to sew together public land units into a coherent, organized system of nature protection. This type of law, called organic legislation, has come to play a central role in American conservation. The 1997 Refuge Improvement Act, analyzed in part two of this book, sets out a comprehensive set of rules for resolving disputes and administering refuges. Specifically, the 1997 statute

1. defines a conservation mission for the Refuge System;
2. establishes a hierarchy of refuge use priorities;
3. requires comprehensive conservation plans for each refuge unit; and
4. binds the Service to a number of substantive criteria to ensure that the cumulative effects of refuge management decisions will not impair the System mission.

Not since the 1970s had Congress so thoroughly addressed the mission and management of a public land system. In doing so, Congress restocked the legislative toolbox for organic legislation. Accounting for advancements in science, the Improvement Act emphasizes the importance of conservation biology. For instance, one of the innovative, substantive management criteria requires the Service to ensure that refuges maintain “biological integrity, diversity, and environmental health” (1997 Improvement Act, § 5(a)(4)(B)).

The 1997 law frames a model for nature protection at a time when governments around the world are searching for better approaches to conservation. Dominant conservation use management through organic legislation to achieve sustainable development is the method by which the Refuge System seeks to pull together its disparate units into something more than the sum of its parts. Sustainable development, famously defined by the 1987 Brundtland Commission report as “meeting the needs of the present without compromising the ability of future generations to meet their own needs” (World Commission on Environment and Development 1987, 8), requires the maintenance of working ecosystems. The Refuge System’s compatibility principle recognizes this fundamental dependence in limiting uses to those that do not impair the fulfillment of the System mission. That mission is to sustain a network of lands and waters for the conservation of plants, animals, and habitat, for the “benefit of present and future generations of Americans” (1997 Improvement Act, § 4). The compatibility principle invites a wide range of uses for refuges, subject to the limitation that they do not tear the sustaining fabric of nature.

The effectiveness of the Refuge System’s compatibility criterion will determine how useful it might be to other governmental efforts (including local efforts to control private land use) in promoting sustainable development. Late in its tenure, the Clinton administration attempted to apply this compatibility approach to sustainable development in revising the core planning regulations for national forests. The Clinton regulations established nonimpairment of ecological sustainability as a fundamental, bottom line for national forest management. The relative ease with which the subsequent Bush administration brushed aside those regulations underscores the importance of the congressional commitment to compatibility in the Improvement Act. The Refuge System, meanwhile, continues to gain experience applying the compatibility principle, which is a polestar for international conservation programs, such as the Biosphere Reserve System.

Of all the federal public land systems, the National Wildlife Refuge System provides particularly revealing insights into the challenges and opportunities of conservation law. One reason for this is that the Refuge System occupies the middle of the permissible uses continuum of the federal public land systems. The law governing refuge management permits a wide range of activities, subject to the condition that they are compatible with the dominant use of conservation. So, for instance, recreation, oil and gas development, and grazing generally may occur in the Refuge System only to the extent that they are compatible with the health of animal and plant populations. This contrasts with multiple use management, which does not favor one type of use over another, and exclusive use management, which permits no other use but a single purpose.

The trend in public land management is away from the extremes of multiple and exclusive use regimes and toward more complex systems with hierarchies of dominant and subservient uses. Overseas, reforms in national public land laws have, for example, split the New Zealand multiple use forest lands into two dominant use regimes, one for commercial forestry and one for conservation. Nature preserve management in the developing world increasingly invites local communities to engage in compatible commercial activities, such as ecotourism and renewable resource extraction.

In the United States, exclusive use systems, whether military reservations or preservation enclaves, increasingly invite secondary, compatible uses. Multiple use systems, whether public forest lands or rangelands, increasingly condition each possible use on its ability to meet certain substantive criteria. In other words, public land management systems are becoming more like the National Wildlife Refuge System. Therefore, a better understanding of the history and law of the Refuge System will help guide us through the pitfalls and potential of future reform for other lands.

The Forces Shaping Refuge Management

Law is the principal tool we employ to resolve conflicts over land use. A legal examination of the national wildlife refuges uncovers the dynamic forces that shape our decisions about resource management. Legal developments highlight the constant presence of three important tensions that influence public resource management.

First, in the rivalry between the president and Congress, the executive branch has played the leadership role in the sphere of refuge management. Though the Constitution places power over public property in Congress, the presidents regularly pioneered key innovations in public land law, at least as early as Jefferson’s Louisiana Purchase. The national wildlife refuges, more than any other system of public lands with the sole exception of the national monuments, bear the imprint of strong executive action. Repeatedly, legislation has merely endorsed and elaborated on prior executive initiatives. Examples abound, from the initial establishment of early wildlife conservation areas; through the creation of the FWS, the development of the compatibility standard, and the delineation of the hierarchy of dominant uses; to the recent inclusion of plant conservation in the mission of the System.

Second, the resolution of refuge management disputes reflects the ongoing effort to balance the conservation impetus behind the Refuge System with the desire to satisfy local interests in using public lands. This tension is particularly evident in attempts to reconcile recreation with wildlife protection. For example, the hunting community has always been an important constituency of the Refuge System, especially after the 1934 Duck Stamp Act compelled hunters to contribute to a fund for purchasing refuge lands. From the steady erosion of the old “inviolate sanctuary” limitation on hunting, to the more recent delineation of preferred uses on refuges, hunters have exerted their influence to prevent the Refuge System’s brand of conservation from merging with the Park Service philosophy, which bans hunting in most national parks. Hunters have largely succeeded in this effort. In contrast, conflicts between conservation and other forms of recreation, such as the use of motorboats and recreational vehicles, have not been resolved so decisively. The tension between conservation goals and other refuge uses continues to spur conflict, now mediated through the discourse of compatibility and funding. Providing local people with decent livelihoods while sustaining the natural integrity that undergirds ecological services and economic goods is the same central challenge faced by sustainable development.

Third, the refuge law manifests a continual struggle to counteract the centrifugal, divergent push of unit establishment mandates with the centripetal, coordinating pull of systemic management. Organic legislation struggles to provide a coherent focus for disparate refuges to make the Refuge System greater than the sum of its parts. This tension is particularly acute for dominant use public land systems, such as the national wildlife refuges or the national parks. Each dominant use system comprises a collection of units created with their own, often individually tailored, legal charters. In 1966, Congress consolidated refuges into a conservation system closed to all uses except those found to be compatible with establishment purposes. However, the 1966 law failed to provide sufficient legal mechanisms to meet modern standards of conservation and coordination. The difference between the 1966 statute and the 1997 Improvement Act highlights the intervening development of public land law’s concept of organic legislation. This book uncovers the evolution and meaning of organic legislation as a means of exploring the form and substance of the new refuge resource management regime. A close examination of national wildlife refuge law cautions that organic legislation is no panacea for public land systems with divergent individual unit establishment mandates. Continued leadership from the executive branch is required for the Refuge System to fulfill its promise as a conservation network restoring and maintaining ecological integrity.

Road Map to This Book

Though dedicated students of refuge management may read this book cover to cover, I expect that many readers will skip to the particular chapters addressing their interests. Therefore, I provide this road map to aid readers in understanding how their selected chapters fit into the book as a whole. Over the span of three parts, this book proceeds from more general, conceptual discussions to more applied, detailed topics. Part one of the book introduces and examines public land law and the Refuge System. Part two consists of a close analysis of the 1997 Refuge Improvement Act and its implementing policies. Part three covers specific issues that apply only to certain refuges.

Part One

Part one of the book lays the foundation essential for understanding the 1997 Refuge Improvement Act and refuge management. Chapter 2 begins with a primer of public land law and a comparison of the major public land systems. This establishes the context for a detailed description of the crazy-quilt Refuge System, with its diverse classification of units and management mandates. Chapter 3 describes the legal history of the Refuge System. Supplemented with the chronology of Refuge System development in appendix A, this chapter shows how the key management practices evolved through administrative innovation, executive fiat, and congressional compromise. Today, starting from scratch, no sensible designer would create a nature protection system resembling refuge administration. Like the taxonomy of the refuges themselves, the management mandates of the Service can be best understood as the gradual accretion of decisions over time. Appendix B supplements the legal history by providing the text of the key statutes that remain important to contemporary Refuge System management.

Chapter 4 explores a question at the heart of modern public land law: what is an “organic” act? The evolution in meaning of “organic act,” one of the few specialized terms in the resource management field of environmental law, highlights the changing expectations of lawyers and the public toward conservation. When Congress explicitly justified its 1997 enactment of the Improvement Act on the need for Refuge System organic legislation, it implicitly affirmed the trends, discussed in this chapter, toward greater statutory detail and stricter mandates in resource management. The hallmarks of modern organic legislation, which I find to be purpose statements, designated uses, comprehensive planning, substantive management criteria, and public participation, provide a framework for part two’s analysis of the 1997 Act. These five dimensions of systemic mandates also offer indicia for comparing the Refuge System’s dominant use regime with other public land systems.

Part Two

Part two of this book, containing chapters five through nine, focuses on the key statute that has transformed the Refuge System from a backwater into a leading edge of conservation and sustainable development law. Viewing the 1997 Improvement Act as a paragon of organic legislation allows us to see its key features and to understand it as a manifestation of larger trends in public land law. The 1997 Improvement Act displays the hallmarks of modern organic legislation and updates our expectations of what Congress will specify in a public land system management charter. Appendix B includes the full text of the 1997 Act. The five chapters in part two correspond to the five hallmarks of organic legislation discussed in chapter 4. They analyze both the statutory provisions as well as the subsequent FWS policies designed to implement the new legislation.

Chapter 5 deals with the 1997 Act’s purpose statement. The 1997 definition of the conservation mission of the System will help sew together a collection of land units created over a century under dozens of different authorities. The purpose of conservation both consolidates the existing strengths of the Refuge System and broadens the extent of ecological protection by including plants for their own sake. The Refuge System’s updated purpose reflects the larger trend in resource management toward ecosystem sustainability. This chapter deals with several key elements of the conservation purpose, including the inclusion of plants, the role of science, and the meaning of “healthy populations.”

Chapter 6 discusses the designated uses hallmark of organic legislation. In creating a tiered preference system, the Improvement Act manifests the vitality of the dominant use regime in modern conservation management. But, by placing individual refuge purposes at the apex of the dominant use hierarchy, Congress limited the ability of the 1997 Act to serve as a unifying force to manage refuges as a single, large system. The designated uses also display the continued influence of hunters and anglers in the unique subdominant category of wildlife-dependent uses.

Chapter 7 sketches the comprehensive planning provisions of the Improvement Act. Comprehensive planning comes late to the Refuge System, and it opens important new avenues for public participation and conservation strategies. However, the Improvement Act does not plow new ground in the planning hallmark. Instead, it mostly consolidates existing practices as required by other public land systems.

In addition to the standards for management established in the comprehensive conservation plans, there are also statutory criteria that bind agency administration of refuge resources. A substantive management criterion is a mandate to meet a statutory objective. The objective operates to limit resource management discretion. A specific management action, even if consistent with a plan, may still run afoul of the Improvement Act if it violates a substantive management criterion. Therefore, along with the planning mandate that will apply them, the substantive management criteria will effect the greatest changes in Refuge System administration. Chapter 8 analyzes the five key criteria establishing the minimum standards the Service must meet in performing refuge management: use compatibility; biological integrity, diversity, and environmental health maintenance; water rights acquisition; biological monitoring; and conservation stewardship. Although these criteria help shape plans, they apply to refuge activities irrespective of the actual plans. The criteria are also important because they will be footholds for litigation over management of the System. Given the tradition of judicial deference to the proprietary discretion of federal land management agencies, these substantive standards are crucial in spurring courts to review federal resource management decisions.

The Service implements the 1997 Improvement Act’s substantive criteria through revisions to the FWS Manual. The most innovative conservation guidelines to emerge from the Improvement Act have been the Service’s policy implementing both the compatibility and the biological integrity, diversity, and environmental health criteria. In particular, the policy provisions prohibiting habitat fragmentation and requiring managers to respond to external threats to refuges now stand at the forefront of protective public land administration.

The compatibility standard is a codification of the principle that has long guided dominant use in the System. However, the Improvement Act now requires refuge managers to provide written documentation that approved uses are compatible with refuge goals. Also, the Service must now periodically reevaluate compatibility determinations and explain them in the context of each refuge comprehensive conservation plan.

The most stunning substantive management criterion in the 1997 Act is the requirement to ensure maintenance of biological integrity, diversity, and environmental health. This is far and away the most e...