Law - Biological Conservation

Biological conservation has been a concern of law for as long as there have been scarcity and conflict over biological resources. Well over two thousand years ago the kingdoms of Assyria and Persia established legally protected hunting preserves for the noble classes. Although some sacred areas and moral imperatives to care for nature have religious origins, biological conservation in law grew out of relatively narrow concerns to maintain harvest levels of game and fish.

Today the law embraces a far more diverse set of objectives, including preventing extinctions, protecting natural beauty, sustaining ecosystem services, and maintaining biodiversity (the variety and variability of life forms and the ecosystems in which they occur). As regions develop and acquire affluence, biological conservation to maintain economic or subsistence harvest tends to be replaced by recreational, aesthetic, ethical, and long-term ecological concerns. Nonetheless, the more closely economic interests align with legal objectives, the more likely it will be that law operates effectively.

It is important to keep in mind that the law of biological conservation binds only people, not wildlife. To meet the goals of law, the power of the state constrains activities and classes of people. Royal hunting preserves, for instance, are as significant for their maintenance of game as they are for their maintenance of the social order. The aims of law often mix biological goals, such as sustaining deer populations, with social goals, such as limiting the availability of weapons to the ruling class.

This article concentrates on the nondomesticated biological resources—wildlife—of both animals and plants. In contrast to wildlife, domestic cultivars (organisms originating and persisting under cultivation), livestock, and genetically engineered organisms are conserved primarily through traditional property rights.

However, as wildlife conservation techniques become more sophisticated, the line between deliberately bred populations and uncontrolled nature blurs somewhat. As people move forward to an era of more active management of species and ecosystems, law will face new challenges in determining what remains wild and what becomes domesticated.

This brief legal survey reviews the three principal mechanisms used to conserve biological resources, in roughly the order in which they emerged in their modern legal guises. Although the article focuses on U.S. law and its English roots, the historical developments find close parallels in other legal systems. The first section discusses restrictions on hunting, trapping, fishing, and other harvest activities.

These species-specific restrictions regulate the time, place, and manner in which people can exploit biological resources. The second section describes the approach of protecting particular places that serve as habitat or reserves for biological resources. Public lands, especially parks, have played an especially important role as refuges for wildlife and are increasingly managed actively to enhance ecological attributes.

The third section explains how broad-scale regulation, especially of activities on private land, addresses ecological concerns that cross property lines. Limitations on the destruction of wetlands through national regulation in the United States beginning in the 1970s, for instance, have helped sustain a wide range of wildlife, especially migratory birds.

Harvest Activity Restrictions. When threats to sustainable populations of animals and plants come from overexploitation, a simple legal fix is the restriction of harvest. This is sometimes also called a "take limitation." British concern about game populations, as well as social discrimination and a sense of fair play for sport hunting, led to a series of restrictions on hunting in the sixteenth through nineteenth centuries.

These restrictions included prohibitions on tracking hare in snow, limitations on which species could be hunted with firearms, "qualification statutes" restricting the kinds of people who could own firearms, and prohibitions on attracting game with lights and sounds. The basic legal elements employed by the British to limit harvest remain the chief elements today. They control who may hunt, when hunting may occur, how hunting may occur, and what may be hunted.

The British restrictions on hunting were not necessary in early colonial America because wildlife was abundant. Beginning on the East Coast, as habitat conversion and harvest took their toll on wildlife, states began to enact laws paralleling the British limitations on take.

Hunting permits, closed seasons, bag limits, size limits, reproductive limits, and rules that require hunters to withhold using some forms of harvest technology all emerged in the nineteenth and early twentieth centuries in state hunting and fishing laws. During this time Britain extended these same types of legal restrictions to a wider array of wild animals.

Poor enforcement and spotty coverage of state conservation laws led to dramatic declines of wildlife in mid- to late nineteenth-century America. Sport hunters led the effort to tighten restrictions on harvest to protect wildlife. Congress enacted the first federal law restricting take of wildlife in the 1900 Lacey Act. The principal purpose of the Lacey Act was to provide a federal enforcement hook to prosecute interstate commerce involving animals killed in violation of state law.

State conservation concerns were not the only fuel for federal lawmaking. International calls for conservation of transboundary wildlife also spurred legal developments. Beginning with the Convention with Great Britain for the Protection of Migratory Birds in 1916, the United States signed a series of treaties promising protection for animals that cross national borders. Subsequent treaties extended international concern over hunting to fur seals, polar bears, and whales.

However, the original Migratory Bird Treaty Act of 1918, providing national authority to meet the obligations of the bird treaties, brought new administrative tools to bear on conservation. In addition to prohibiting certain takes, and even possession, of birds listed under the treaties, it also allowed the federal government to establish harvest restrictions to regulate hunters.

From listed migratory birds in 1918 to listed threatened and endangered species in 1973, federal statutory law traces a steady arc of growth in the range of species (including eagles and marine mammals) protected by take restrictions. The 1973 Endangered Species Act (ESA) broke new ground in two respects.

First, it brought new kinds of species under federal harvest restrictions. In addition to the species valuable for sport hunting (such as ducks), commercial exploitation (such as ocean fishes), and national pride (such as bald eagles), the ESA provides protection to any plant or animal on the brink of extinction other than certain insect pests. Such uncharismatic microfauna as the Delhi sands flower-loving fly, the furbish lousewort, and the snail darter received protection under the ESA.

Second, the ESA expanded the traditional scope of take limitations, which formerly covered only direct hunting, collecting, harassing, or pursuing, to include harm. Harm, undefined by the act, is a broader term embracing indirect adverse effects to species, such as habitat destruction incidental to otherwise lawful activities (Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 1995).

Recent developments in administration of the ESA now employ the harm limitation on habitat modification in a manner that encourages people involved in habitat-disturbing activities to develop conservation and mitigation plans. In this respect, the cutting edge of harvest method restrictions now overlaps the broad-scale regulation of private activities to protect habitat.