Hybridizing Law: A Policy for Hybridization Under the Endangered Species Act

Abstract

For centuries, hybridization was a poorly understood evolutionary process thought to be a threat to endangered species. With the advent of genomic technologies, many of those prevailing views are starting to change. Hybridization has become recognized as a key evolutionary process vital for the formation and continued persistence of many species today. However, our current legal system of protection for endangered populations under the Endangered Species Act (ESA) fails to take many of the modern nuances of evolutionary biology into consideration. Despite calls for a defined, explicit “hybrid policy” since the early 1990’s, US Fish and Wildlife Service and the National Marine Fisheries Service have failed to remedy this problem, instead choosing to apply a case-by-case approach with no guidance or overarching policy. With the advent of these new technologies, many of the species we are currently protecting could technically be unsuitable for protection based on a rigid interpretation of the ESA. To continue to meet the goal of the ESA, a defined hybrid policy - such as the one presented here - must be adopted. Such a policy must take into consideration both the twin aims of protecting genetic lineages and protecting ecosystems, all while moving away from a rigid view of taxonomy. In a time of political uncertainty regarding the fate of the ESA and other key environmental litigation, adopting a policy that clarifies this source of legal murkiness, allowing all sides to come to the same table for discussion, is more vital than ever.