J.B. Ruhl

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Kansas Law Review

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If one compares the way in which the ESA was implemented in 1982 to the way it is today, the list of differences would far outweigh the similarities. Indeed, the ESA has been transformed so much through administrative reform toward the ecosystem management model, I have dared to suggest elsewhere that it has earned the seal of eco-pragmatism. In this Article, I explore the related question such an assertion necessarily begs-has the ESA also earned the seal of adaptive management?... Part I of the Article provides the legal and ecological background necessary to appreciate the need for ecosystem management, and thus adaptive management, in matters of ESA implementation. Part II applies the "front end/back end" test to the ESA statutory structure, demonstrating that the statute contains a mish-mash of both styles that falls well short of a comprehensive adaptive management regime. Part III explores ways in which the "back end" component of the ESA has been and could be implemented so as to maximize the statute's adaptive potential. Some remarkable strides have been made in that regard already, but there is the room and the need to evolve implementation of the statute even more toward adaptive management.

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