Collaborative Governance Under the Endangered Species Act: An Empirical Analysis of Protective Regulations

Recent conservation and administrative law scholarship emphasizes the need for potential legal adversaries to work together. Stakeholders and regulators can pool their political capital, money, property, expertise, and legal leverage to achieve more than could be accomplished through mere mechanical implementation of statutory commands. Most commentators associate collaboration with programs promoting fuzzy objectives to engage the public and advisory groups. The Endangered Species Act (ESA) is a polarizing statute that imposes seemingly uncompromising mandates. But this Article demonstrates that the ESA actually provides rich opportunities for collaborative governance. In exploring this underappreciated success story, we document how conservation collaboration adapts otherwise strict, generic prohibitions to the recovery needs of individual species on the brink of extinction. We identify conditions under which collaboration arises. This Article examines the nearly two hundred ESA protective regulations that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. Our original empirical study explores how the rules manifest collaborative governance, as well as the extent to which they foster imperiled species recovery. We focus on provisions in which parties agree to constrain activities in exchange for limited statutory liability. Almost threequarters of the protective regulations substitute practice-based limitations for difficult-to-detect, proximate-effect prohibitions. Our results show that collaborative governance transforms the ESA from a statute prohibiting certain outcomes (such as harm or jeopardy to a species) to a regulatory program implementing collaboratively crafted best practices, along the lines of pollution-control statutes. Paradoxically, this shift may improve the prospect for species recovery, even with regulations that are less stringent than the standard statutory prohibitions. This insight allows us to recommend mechanisms for constructing better regulations and suggest avenues for future research

A novel approach for practitioners in training: A blended-learning seminar combining experts, students and practitioners

A joint student and professional practitioner seminar used distance technology to allow remote experts to present to, and remote practitioners to participate in, a university-based learning experience. Participants were professional practitioners from the US Fish and Wildlife Service who were mandated to receive training and on-campus graduate students in environmentally focused programs who were enrolled for credit. Seminars providing training in high-demand or cutting-edge topics may be especially valuable to practitioners outside the university in business, agency, or organization positions, if they can attend as distance learners. Such classes create opportunities to bring students and professionals together to interact with expert presenters, who may present from distant locations. Presenters model expert thinking for students and engage them in discussions in which they practice such thinking. Students gain additional insight into their field of practice by observing interactions between practitioners and presenters, as well as by working directly with practitioners, in discussions and, potentially, in assignments. As a result, at little cost to any participant, students are engaged in authentic learning that is not regularly available in a classroom setting and practitioners gain access to a series of experts as well as access to student views and, potentially, student work. Instructors must relinquish considerable control of some aspects of the learning environment, but as mediators can increase the value-added aspects of sharing the class with professionals. Professional programs seeking to prepare students for professional practice often combine both more traditional classroom learning and experiential learning during thesis preparation, service learning or internships. Seminars such at this provide a valuable addition to this mix

State Imperiled Species Legislation

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All but four states possess statutory programs to identify species on the brink of extinction. Most of them include both animals protected under the ESA and wildlife imperiled just within the boundaries of the state. Thirty-four states legislate imperiled plant protection programs. States generally fail to prohibit habitat impairment by private parties, lack permit programs to minimize incidental harms to species and spur habitat conservation, and do not restrict state agency actions that undermine species recovery. Compared to the key regulatory programs of the ESA that prompt stakeholders to collaborate on conservation, state laws—in general—reflect a more permissive attitude. Though state laws, in the aggregate, only weakly support cooperative federalism, some state legislative provisions are very strong. Illinois, Massachusetts, and Wisconsin even go beyond the ESA in their protective measures. Major funding increases to pay for conservation measures could overcome weak agency regulatory authority, but prospects for a spending spree are dim. Therefore, some state legislative reform will be necessary to implement stronger cooperative federalism under the ESA

An Evaluation of U.S. National Wildlife Refuge Planning for Off-Road Vehicle Use

Off-road vehicles (hereafter, ORVs) rank high among public-land management challenges because they are popular, often impair environmental conditions, and may cause conflicts with other recreational users. Unit-level planning for federal lands increasingly translates broad, system-wide objectives, such as maintenance of ecological integrity, into place-based limitations on ORV use to minimize and mitigate adverse impacts on wildlife. We reviewed 176 planning documents covering 313 National Wildlife Refuges (hereafter, Refuges) to understand how planning supports or undermines ORV recreation management. These plans offer an important perspective on ORV management because the Refuges are a large, diverse system of conservation lands where recreation may be permitted only where it is compatible with wildlife protection. Of the plans we evaluated, 24% mentioned ORV use and 12% prescribed some action related to ORVs. The most common prescriptions banned ORV use or limited it to mobility-impaired hunters. Many plans lacked clarity or documentation of analysis in discussing ORV recreation. When analyses grouped ORV use with other activities, such as hunting or other modes of transportation, they often failed to consider the characteristic effects of ORV use. Regardless of how ORV use was categorized, evaluation of its effects seldom considered the full range of environmental impacts documented in the scientific literature. Published research recommends many best practices for managing ORV use and impacts. Though some are habitat specific, five general best-practice categories highlight where planning connects with and diverges from common recommendations. Other land management agencies offer helpful models for implementing these practices in planning. We suggest that public land managers employ tools from each of the five categories: policy formation and public participation, spatial and temporal route planning, permitting, monitoring, and enforcement. The plan prescriptions we examined were strongest in their efforts at route planning. Refuge prescriptions have the most room to improve in detailing how they can work with neighbors and external stakeholders in formulating ORV-use rules

Planning for Adaptation to Climate Change: Lessons from the US National Wildlife Refuge System

US national wildlife refuges have recent, detailed management plans illustrating the state of planning for climate-change adaptation in protected areas. Discussion of and prescriptions for addressing climate change increased in refuge plans between 2005 and 2010 but decreased in 2011. The plans respond to some climate-change impacts on biodiversity and call for monitoring but with little clarity regarding how to act on monitoring results and scant attention to future changes in phenology and community composition. The threats posed by sea-level rise generated the best-developed plan prescriptions. Examples of excellent prescriptions provide models for future planning. Some decision-support tools, such as vulnerability assessments, will improve future planning as they become more available. However, research better targeted at management information gaps is also needed. Region-level coordination, such as through landscape conservation design, offers opportunities for enlarging conservation footprints and improving information generation and sharing

New Directions in Conservation for the National Wildlife Refuge System

The National Wildlife Refuge System Improvement Act of 1997 includes the nation’s broadest statutory commitment to ecosystem protection: to “ensure that the biological integrity, diversity, and environmental health of the system are maintained.” The act also directs the US Fish and Wildlife Service (FWS) to expand the scope of conservation monitoring, assessment, and management beyond refuge boundaries to encompass surrounding landscapes. The act thus gives the FWS a leadership role in developing research and management partnerships with other agencies, organizations, and neighboring landowners. Increasing research capacity and scientific expertise, and strengthening institutional resolve to limit activities that impede the attainment of this directive, are challenges for the FWS. Success requires reexamination of existing priorities, refocused training, the acquisition of new funding and technical expertise, and creative application of those new skills to meet the law’s broad mandat