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37 Trends 1 (2005-2006)

handle is hein.journals/trends37 and id is 1 raw text is: The dilemma of rediscovered 'extinct' species BY STEPHEN GIDIERE AND JEFF WOOD f you haven't heard about the rediscovery of the ivory-billed woodpecker, then you are probably living in a remote, hard-to-reach swamp. Believed extinct in the United States since the 1940s and worldwide since the 1980s, the ivory-billed woodpecker (or at least one of them) has reportedly been spotted in the Cache River National Wildlife Refuge in Arkansas. This widely publicized rediscovery has captured the hearts and imaginations, not just of bird enthusiasts, but of mil- lions of Americans concerned with conservation. The ivory-billed woodpecker is not the first extinct species to be rediscovered in the United States. In 1994, Yadkin River goldenrod (a flowering plant growing among river rocks) was rediscovered in North Carolina after vanishing for more than 100 years. Similarly, in Hawaii, searchers rediscovered the shrubby Gouania meyenii (a flowering shrub found on rocky ridges, cliffs and gulch slopes) after a 50-year hiatus. In Alabama, The Nature Conservancy, which played a central part in the search for the ivory-billed, recently announced the rediscovery of the Cahaba pebblesnail at the Cahaba River National Wildlife Refuge. But the ivory-billed stands out from these other rediscovered species. It is a colorful and attractive symbol and, to many, a legend. News of its redis- covery has inspired and drawn attention to efforts to rediscover other species believed to be extinct or nearly so. After all, if one of the world's largest woodpeckers - with a wingspan stretching 3 feet - can go undetected for almost 60 years, it is very possible that more obscure species believed to be extinct (such as mussels or snails) are also still around. In all, more than 500 species are currently considered to be extinct or missing in the United States, with Hawaii, Alabama and California collec- tively accounting for more than 350 extinct species. The ivory-billed, however, is one of just six North American bird species believed to have gone extinct since 1880. The rediscovery of an extinct species, while certainly good news, may present a variety of regu- latory challenges and dilemmas. Within months of the announcement of the ivory-billed's rediscovery, for example, a controversy ensued over the effect this rare bird might have on a proposal before the U.S. Army Corps of Engineers (Corps) to drain water from the White River to irrigate crops in Arkansas. Environmentalists argue that the proposal would adversely affect ivory-billed habitat, while the rice farmers and the Corps disagree. Nonetheless, the federal Endangered Species Act (ESA) offers no protection for extinct species. The ESA only protects endangered or threat- ened species, which are defined as species in danger of extinction not as species that already are. 16 U.S.C. § 1532(6) and (20). This is only logical because resources should not be expended to protect species that simply do not exist. Thus, the U.S. Fish & Wildlife Service (Service) delists species (or drops them from its candidate list) once they are determined to be extinct. See 50 C.F.R. § 424.1 (d) (authorizing the Service to delist a species because of extinction). Only nine domestic species have ever been delisted because of extinction. Indeed, some have criticized the Service's reluctance to delist species deemed extinct. A 2005 report made a -ai~ ; able by the House Resources Committee (http:// resourcescommittee.house.gov/) points out that more than 30 listed species are considered by the Service to be possibly extinct, including species like the Little Mariana fruit bat that, according to its recovery plan, was last spotted in 1968. Fortunately for the ivory-billed, it remained on the list of endan- gered species, but other species may not be so lucky, having either been delisted or never listed at all. So, when an extinct species is rediscovered, it may have no legal protection under the ESA; ironi- cally, at least for a period of time, the most vulnera- ble species may be the least protected. Some species will have protection from other federal or state laws. For example, if the species is rediscov- ered on federal lands (like a national wildlife refuge or national park), then federal regulations likely protect the species from direct harm or removal and the federal land use planning process will take the protection of the species into account. But species on private lands won't have these protections and, in either case, the over arching restrictions in the ESA, including its consultation requirement, do not exist for unlisted species. To gain or regain ESA protections, the rediscov- ered species will have to go through the listing process under Section 4 of the ESA. This might prove difficult for a newly rediscovered species. One reason is because the ESA mandates that listing decisions be made solely on the basis of the best scientific and commercial data available. 16 U.S.C. § 1533(b)(1)(A). If the best available science previ- ously indicated that a species was extinct, the Service will have the burden to produce new science demonstrating that the species does in fact exist. That might be simple in the case of a stationary plant, but more difficult for a fish, bird or other mobile species. (In fact, some scientists have chal- lenged the evidence used to support the rediscovery of the ivory-billed, arguing that the bird spotted in (Continued on page 14) C# Printed on recycled paper September/October 2005 Volume 37, Number 1 W4

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