Advising Noah: A Legal Analysis of Assisted Migration
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Advising Noah:A
Legal Analysis of
Assisted Migration
by Julie Lurman Joly and Nell Fuller
Julie Lurman Joly is Assistant Professor of Natural Resources
Law and Policy, University of Alaska Fairbanks, School of
Natural Resources and Agricultural Sciences. Nell Fuller
is a Fish and Wildlife Biologist, U.S. Fish and Wildlife
Service, Wildlife and Sport Fish Restoration Program.
Editors' Summary
Climate change will likely lead to dramatic transforma-
tions of habitats critical to many species. One proposed
solution to this problem is assisted migration. No federal
agency has yet developed any rules specifically regarding
assisted migration in response to climate change. How-
ever, the existing laws, regulations, and policies do pro-
vide guidance that would affect any federally sponsored
or permitted assisted migration program. This Article
examines those laws, regulations, and policies currently
in place that may challenge or facilitate assisted migra-
tion programs. Given this legal structure, we find that
assisted migration is a legal option on most federal lands
under certain circumstances.
[Authors' Note: 7he views expressed here do not necessarily represent the
views of the Wildlife and Sport Fish Restoration Program, U.S. Fish and
Wildlife Service (FWS), nor the U.S. Department of the Interior. 7his
work isfiunded in part by the U.S. Department ofAgriculture (USDA)
Cooperative State Research, Education, and Extension Service, Hatch
Project #0209760 and MultiState Research Project Wi 192. SNRAS
Pub. No. 2008-005. We thank Dan Ashe, Science Advisor to the
Director, FWS; Robert Winfree, Science Advisor, U.S. National Park
Service; James J Ustasiewski, Assistant Regional Attorney, USDA; and
Alan Palisoul; for suggestions and comments that substantially improved
this Article. Any errors or omissions are our own.]
cientific modeling and monitoring suggest that human-
induced climate change may be occurring more swiftly
than was initially anticipated by scientists.1 One result of
such change will likely be rapid, dramatic transformations of
habitats critical to many species. As the climate changes, the
ecological niches on which many species depend may disap-
pear or shift in location. Many species, however, will not be
able to shift with them for a variety of reasons, and one pro-
posed solution to this problem may be assisted migration, also
referred to as assisted colonization. This analysis will focus on
those laws, regulations, and policies currently in place that
may impede or challenge the legality of deliberately introduc-
ing species to areas in which they are not native, as well as
those laws that would encourage or facilitate such endeavors.
The purpose here is only to analyze how assisted migra-
tion may fit into our existing legal framework. This Article
does not attempt to evaluate the ecological or ethical virtues
of assisted migration, nor does it consider agency manage-
ment priorities or budgetary constraints. As of this writing, no
federal agency has explicitly developed any rules specifically
regarding assisted migration in response to climate change.
However, there are many existing laws, regulations, and poli-
cies that do guide agencies, and would affect any attempted
assisted migration that was either carried out by a federal
agency, or that utilized federally managed lands or funds. Our
hope is that biologists, land managers, and others who are cur-
rently debating the ethics, utility, and feasibility of assisted
migration can use this legal analysis as part of that dialogue.
I.What Is Assisted Migration and Why Is
Everyone Talking About It?
Over the next several decades, as the effects of global climate
change are realized, the suitable habitats for many plant and
animal species will shift to higher latitudes or altitudes, and
many species may not be able to follow on their own.2 Com-
pelling evidence suggests that climate change will be a sig-
nificant driver of extinction.3 Assisted migration is simply
the action of picking up and moving certain individuals or
populations of species that either cannot or will not be able to
migrate on their own in response to the rapidly changing cli-
matic conditions expected over the next several decades.4 This
failure to migrate may be due to the nature of the species itself
(for example, the species may not be vagile or may be highly
philopatric) or because the habitat has become so fragmented
1. Carl Zimmer, A Radical Step to Preserve a Species: Assisted Migration, N.Y.
TIMES, Jan. 23, 2007, available at http://www.nytimes.com/2007/01/23/
science/23migrate.html.
2. Bob Holmes, Assisted Migration: Helping Nature to Relocate, NEW SCIENTIST,
Oct. 6, 2007, at 46.
3. Jason S. McLachlan et al., A Framework for Debate ofAssisted Migration in an Era
of Climate Change, 21CoNERVATION BIOLOGY 297, 297 (2007).
4. See Holmes, supra note 2.
NEWS & ANALYSIS
5-2009
39 ELR 10413](ViewImageLocal?handle=hein.journals/elrna39&div=80&collection=&method=preview&ext=.png&size=3)
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Advising Noah: A Legal Analysis of Assisted Migration
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