28 Virginia Environmental Law Journal 173 (2010).
Animal migrations are as familiar as geese in the sky on a fall afternoon and as mysterious as the peregrinations of sea turtles across thousands of miles of open ocean. This article discusses the distinguishing attributes of animal migrations, why they are important to biodiversity conservation, and the legal challenges posed by migration conservation. In particular, the article focuses on those aspects of migration conservation that existing law, dominated by imperiled species protection, fails to address. It consequently suggests law reforms that would better conserve animal migrations. A step toward serious legal efforts to protect the process and function of migration would represent significant broadening of the current framework for biodiversity protection policy. This article begins by describing animal migrations and explaining the common threats that raise conservation concerns. Any successful strategy for protecting migration will need to address habitat destruction, human-created obstacles, overexploitation (i.e., hunting and fishing), and climate change. The article examines the four key legal elements of a conservation strategy. The first is the establishment of differential thresholds of action responsive to different abundance goals for a migration. Second is transboundary coordination, which may involve international or interstate agreements, depending on the scale of the migration. Third is the protection of migration connectivity. Effective connectivity requires designation of corridors. Within the corridors, legal activity should concentrate on acquisition of habitat as well as activity-based regulation of habitat-disturbing practices. Fourth is controlling commercial and recreational harvests of migrating animals or the species on which the migrations rely. Finally, the article presents a theoretical model that tailors a place-based legal response to both migratory population abundance and the ecological importance of habitat. Application of the model would result in variable levels of legal protection to minimize unnecessary costs and optimize the benefit of conservation efforts. Existing attempts to conserve migrations using variable levels of protection compose a mixed record from which we extract lessons.
Fischman, Robert L. and Hyman, Jeffrey B., "The Legal Challenge of Protecting Animal Migrations as Phenomena of Abundance" (2010). Faculty Publications. Paper 790.