Article 6:

(Box) U.S. Laws Affecting Land and Ecosystem Management

By Daniel Rohlf, Lewis and Clark Law School

A number of important laws govern land management in the United States. The President or Congress have for over a century designated land as National Wildlife Refuges, which the federal government has either acquired or carved out of its own landholdings. Refuges today encompass over 90 million acres in holdings, ranging from an acre or two to Alaska’s 24 million-acre Arctic National Wildlife Refuge. For much of the history of the refuge system, refuge creation also occurred on an ad hoc basis, and both acquisition and management strategies were designed largely to benefit species favored by hunters, who footed much of the bill for land acquisition through their mandatory purchase of federal duck stamps. Additionally, Congress or the President often established different purposes for different refuges upon their creation, many of which include activities (e.g., grazing, farming, and even military training) that may actually conflict with biodiversity conservation.

In 1997, Congress enacted the National Wildlife Refuge System Improvement Act, which for the first time provided explicit standards governing the expansion and management of the refuge system. The law specifies the system’s mission as “the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats....” It also directed U.S. Fish and Wildlife Service, which manages refuges, to “plan and direct” growth of the refuge system to support this mission and “contribute to the conservation of ecosystems of the United States.” This represents the first explicit federal mandate that called for a systematic ecosystem conservation strategy. The law directs refuge managers to maintain “the biological integrity, diversity, and environmental health of the System,” though neither the law nor its implementing regulations define any of these terms. However, the law continues to recognize the validity of all purposes listed at the time a refuge was created, and specifies that such purposes should take precedence over the refuge system’s biodiversity conservation goals in the event of a conflict. Finally, the statute continues to allow non-wildlife related “secondary” uses of refuge lands (such as recreation, resource extraction, and other commercial uses) to the extent that such activities are “compatible” with a refuge’s primary purposes. The law defines a compatible use as one that does not “materially interfere with or detract from the fulfillment of the mission of the System or the purposes of the refuge.”

A less well-known system of federally protected areas covers the marine environment. Enacted in 1972 and amended twenty years later, the National Marine Sanctuaries Act gives the Secretary of Commerce authority—after a complex and laborious series of consultations and findings—to designate federal marine sanctuaries. Lawmakers designed the law to “maintain for future generations the habitat, and ecological services, of the natural assemblage of living resources” in the sanctuaries. A marine area is eligible for designation if its ecological or other resources gives it “special national significance,” existing federal and state authorities are not adequate to “ensure coordinated and comprehensive conservation and management of the area,” and it is “of a size and nature” that will allow such management. However, the Act does not set specific standards guiding actual management of marine sanctuaries, though an area is not eligible for designation until the Secretary, acting through NOAA Fisheries, has prepared a draft management plan. The marine sanctuary system remains small relative to its land-based cousin; 13 sanctuaries (including one in the Great Lakes) today make up the system.

Finally, many areas on federal land within the U.S., some of which are very large, provide a high degree of protection to species, communities, and, in some cases, even all or significant portions of ecosystems. These include national parks and land designated as wilderness, which are governed by management standards generally compatible with maintenance of biodiversity, and areas such as military reserves, whose incidental benefits for protecting habitat and ecosystem functions are often subject to change. In most cases, however, these lands were set aside primarily for purposes other than maintaining biodiversity, so the standards that govern their creation and management often either do not explicitly deal with biodiversity issues or do so only as secondary considerations.

The U.S. Forest Service and Bureau of Land Management (BLM) have discretionary authority to carve out portions of land under their jurisdiction—termed Research Natural Areas by the Forest Service and Areas of Critical Environmental Concern by BLM—for special management purposes, which typically involve protection of a particular species or biotic community. Federal law does not set out explicit standards for creating or managing these areas, so both take place on an ad hoc basis. The two agencies have used this power to protect biologically important areas, but they generally are not designated according to any overall vision for a system of biological reserves. These areas typically are fairly small in size and constitute only a small fraction of the agencies’ overall landholdings.