37 Trends 1 (2005-2006)

handle is hein.journals/trends37 and id is 1 raw text is: 

The dilemma of rediscovered
'extinct' species


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


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