The revival of animal species that have long been extinct is no longer limited to works of science fiction such as Michael Crichton’s thriller, Jurassic Park. In 2009, a Pyrenean Ibex was cloned from frozen tissue obtained before the species went extinct in 2000.[1] Although the clone died just a few minutes after birth, it suggests that science is advancing to a point where species might be brought back from extinction.[2] Currently there are attempts underway to revive extinct species such as the carrier pigeon, the woolly mammoth, and the gastric brooding frog from preserved remains of those species.[3] If successful, it is possible that some revived species may eventually be released into the wild. The revival of extinct species may result in litigation over the reintroduction of those revived species into the wild and may change how we view the Federal Endangered Species Act (ESA).

To begin with, it would be necessary to determine the legal status of the revived species. Due to the scientific techniques involved, such as splicing parts of the extinct species’ genes into the DNA of a close relative,[4] a determination on whether a revived species is a “species” under the ESA may be necessary. Specifically, the ESA defines “species” as “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Further the ESA defines the terms “fish or wildlife” as “any member of the animal kingdom, including without limitation any mammal, fish, bird, . . . amphibian, reptile, mollusk, crustacean, arthropod or other invertebrate, and includes any part, product, egg, or offspring thereof, or the dead body or parts thereof.” Thus, there is the question of whether the ESA even applies to the revived species, and if it does, whether the revived species would be governed under the general provisions of Section 9, which prohibits the unlawful taking of a listed species, or the less restrictive experimental populations exception of Section 10(j). By looking at the language of the ESA, it is possible to draw some conclusions as to how the reintroduction of revived species might be addressed.

The Endangered Species Act Applies to Revived Species

As a starting point, the ESA defines an endangered species as being one that “is in danger of extinction throughout all or a significant portion of its range.”[5] The plain language does not differentiate between species that are nearly extinct and those that have been revived and are so similar in number that they are effectively facing extinction for a second time upon re-creation. The ESA statutory language that the species be “in danger of extinction” is broad enough to encompass both situations. Therefore, it appears that the new species is listable under the ESA.

Even if a species’ historical range no longer exists, a revived species could still qualify for listing under the ESA. Under a proposed draft policy by the U.S. Fish and Wildlife Service, the range of a species is considered to be the general geographical area where the species is found at the time an ESA status determination is made.[6] The area constitutes a significant portion of the species’ range if, without that portion, the species would be in danger of extinction.[7] Additionally, a listing would also designate “critical habitat” for the revived species, which the ESA defines as areas within the geographic area occupied by the revived species at the time it is listed, that is essential to the conservation of the species and which may require special management considerations or protection. Thus, releasing a species into the wild may result in reestablishing the species’ range and critical habitat for ESA purposes and make that species eligible for protection under the ESA.

The Reintroduction of Revived Species Should Be Governed By Section 10(j) of the ESA

As some extinct species perished decades ago or longer, reintroducing them to a significantly different environment has the potential to create various problems. For example, carrier pigeons once filled the sky with vast numbers.[8] If their populations managed to reach their former magnitude, they could constitute a nuisance.[9] Accordingly, it is probable that there will be some opposition to the reintroduction of revived species. This raises the question of whether the experimental population provisions of Section 10(j) might be better suited to address these concerns than the general provisions applicable to all listed species under Section 9.

Section 9 of the ESA provides for broad and stringent protection for the taking of species listed as threatened or endangered. The ESA defines the term ”take” to mean “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”[10] A violation can result in criminal prosecution and fines of up to $25,000.[11]

Section 10(j) specifies that “[t]he Secretary may authorize the release . . . of any population . . . of an endangered species or a threatened species outside the current range of such species if . . . such release will further the conservation of such species” as long as “the population is wholly separate geographically from nonexperimental populations of the same species.”[12] Populations deemed essential to the continued existence of the species are then treated as a threatened species. Since species that are currently extinct have “no range” and there are no nonexperimental populations of those species anywhere, revived species might qualify for an experimental population designation under Section 10(j).

Because Section 10(j) of the ESA was designed to promote species reintroduction while providing increased management flexibility to address the problems of those affected by the reintroduction,[13] it is arguably better suited to address the challenges that would come with the reintroduction of revived species than the more stringent provisions of Section 9. As one example, the reintroduction of the Gray Wolf in Yellowstone National Park has been one of the most successful programs under Section 10(j). By the 1970’s, there was no evidence of wolves in Yellowstone.[14] Local ranchers opposed the reintroduction efforts of the 1980’s due to concerns for the safety of their livestock.[15] Often the stringent penalties for a violation of Section 9 result in a “shoot, shovel, and shut up” attitude that actually increases the decline of a species after being listed.[16]

Instead, Section 10(j) addressed the landowners’ concerns by permitting them to harass wolves in a non-injurious manner, as well as providing for the relocation or killing of problem wolves.[17] With approximately 1,600 wolves in the northern Rockies region, they are now considered to have recovered enough to be removed from the protection of the ESA.[18] This provides an example of how Section 10(j) can be used to address the problems that arise when reintroducing a species back to their historical habitat and could serve as a prototype for the reintroduction of revived species.

Conclusion

One does not have to look further than the California  state flag to run into a possible candidate for reintroduction to this state. The California Grizzly Bear, which went extinct in 1922, is the official state animal,[19] so its revival would certainly be a significant occurrence. Nevertheless, as exciting as these new possibilities might be, it is important to balance them with the rights of property owners. Given that revived species no longer have ranges and would be being reintroduced into significantly different environments, attempts at reintroduction are bound to result in unforeseen impacts. Thus, while it appears that revived species qualify under the ESA, it might be preferable to reintroduce them under the more flexible experimental population provisions of Section 10(j). That way, many concerns over property destruction, possible nuisances, or even harm to existing species can be avoided.

[1] Richard Grey & Roger Dobson, Extinct Ibex is Resurrected by Cloning, The Telegraph (Jan. 31, 2009), http://www.telegraph.co.uk/science/science-news/4409958/Extinct-ibex-is-resurrected-by-cloning.html.

[2] Id.

[3] Carl Zimmer, Bringing Extinct Species Back to Life, National Geographic (Apr., 2013), http://ngm.nationalgeographic.com/2013/04/125-species-revival/zimmer-text.

[4] Id.

[5] 16 U.S.C. § 1532(6) (2006).

[6] Draft Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act, 76 Fed. Reg. 76,987, 76,990-91 (Dec. 9, 2011).

[7] Id. at 76,991.

[8] Zimmer, supra note 3.

[9] As one commentator put it: “how would the residents of Chicago, New York, or Washington, D.C., feel about a new pigeon species arriving in their cities, darkening their skies, and covering their streets with snowstorms of dung?” Id.

[10] 16 U.S.C. § 1532(19) (2006).

[11] Id. at § 1540.

[12] Id. at § 1539(j).

[13] Paula Hartman, Resolving Conflicts Between Endangered Species and Man: Case Study–The Reintroduction of Gray Wolves to Yellowstone National Park and Central Idaho, 18 U.C. Davis Envtl. L. & Pol’y J. 88, 94 (1995).

[14] Hartman, supra note 12, at 89.

[15] Id. at 88, 96.

[16] Steven Cribb, Endangered Species Act, Section 10(j): Special Rules to Reestablish the Mexican Wolf to Its Historic Range in the American Southwest, 21 U.C. Davis Envtl. L. & Pol’y J. 49, 55 (1998).

[17] Hartman, supra note 12, at 96.

[18] Bettina Boxall, Western Gray Wolf Numbers Fall, Los Angeles Times (Apr. 16, 2013), http://articles.latimes.com/2013/apr/16/science/la-sci-sn-gray-wolves-west-20130416.

[19] State Symbols, California State Library, http://www.library.ca.gov/history/symbols.html (last visited Jul. 19, 2013).

Image courtesy of Flickr by moonbird.