The Indignity of Federal Wildlife Habitat Law

In this paper I argue that the agencies charged under federal law with the protection and restoration of wildlife populations are to a fault too rational, too deliberative, too sequential in operation, and too focused on putting various tracts of federal realty on highly protective pedestals. To an even greater degree than modern legislation, legal change through regulation is a process weighted down and incapacitated by its own importance, its own dignity. Thus, the overall critique is that our administrative system's commitments to rationality and public participation per se render it incompatible with the societal objective of wildlife habitat protection. In this connection, the federal law of wildlife habitat exemplifies a larger condition of the administrative system perhaps better than any other field of regulation today. The modern practice of conservation biology has shown how important continuous adaptation is to success and how provisional all judgments must be throughout implementation. Federal lands managers, the Fish and Wildlife Service, and the Council on Environmental Quality have all known as much for years. Yet these institutions have done little to adapt their administrative architectures accordingly. As conservation biologists envision this practice, it is reflexive and pragmatic, i.e., continuously self-critical and open to fundamental revisions in light of what is learned in execution. Yet, as the agencies have actually implemented their habitat conservation mandates, they have been neither reflexive or pragmatic - largely as a result of the legal structure of this field. In this paper, I highlight the lack of fit between that structure and this public policy objective and question whether any changes at the federal level could make it much better.