Woolly mammoth at Royal BC Museum in Victoria.
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Credit: Flying Puffin on Flickr
Woolly mammoth at Royal BC Museum in Victoria.

Does a Woolly Mammoth Need a Lawyer?

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Shelley Estelle, Presidio Trust. via Flickr Click on image for link

saw a ghost

Before 1947, a few clippings of Franciscan manzanita had ended up in nurseries. Today you can buy the plant online. But the nursery form is the result of hybridization and extreme breeding; it’s now about as much like wild Franciscan manzanita as a German shepherd is like a wolf. It’s unlikely it could survive in the wild anymore. For thousands of years, wild Franciscan manzanita had grown luxuriantly in the prairies that carpeted much of the California coast. Now the wild plants were all gone–or almost, it turned out.

Before Gluesenkamp’s discovery, the U.S. government officially listed Franciscan manzanita as extinct in the wild. But then three organizations–the Wild Equity Institute, Center for Biological Diversity, and California Native Plant Society–petitioned the U.S. government to change its status. In 2012, the Fish and Wildlife Service agreed to the request and reclassified Franciscan manzanita from extinct to  endangered. Its known wild population was precisely one.

This wasn’t exactly the original plan for the Endangered Species Act when it was enacted in 1973. It was intended to protect species that were moving in the other direction, from healthy populations towards extinction. But once the single wild Franciscan manzanita plant came to light, the government decided that it deserved protection, too.

If that single surviving plant remained where it was, it would soon be destroyed in a highway renovation project. And so the plant was hoisted out of the ground and moved to a city park. Cuttings from the plant are now growing  in nearby botanical gardens. The Fish and Wildlife Service has identified hundreds of acres in the San Francisco area as critical habitat for Franciscan manzanita. Eventually, the cuttings may be reintroduced into those fragments of its former range.

The Franciscan manzanita’s story isn’t just a tale of fortunate rescue. It may also become a legal precedent for how the government deals with a more science-fiction-like situation. As I wrote in National Geographic in AprilAs I wrote in National Geographic in AprilAs I wrote in National Geographic in April, scientists are actively working on ways to bring extinct species back to the planet. If the Franciscan manzanita can gain government protection, then what about passenger pigeons? What about mammoths? What would the legal status of a saber-toothed tiger be?

In the January 2014 issue of The Stanford Environmental Law Journal–normally a place where you can read sober articles on fracking regulations and forest health–three lawyers explore this prospect. Their article is entitled, “How to Permit Your Mammoth: Some Legal Implications of ‘De-Extinction.'” (The authors are led by Norman F. Carlin, who has a Ph.D. in evolutionary biology and now practices environmental law.)

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Courtesy of Mike Tyler Southern gastric brooding frog

How the government deals with de-extinction may depend on how scientists bring it about. At the moment, there are a few different methods on the drawing board. The most straightforward one–at least in the view of Carlin and his colleagues–would involve cloning. As fellow Phenom Ed Yong explained in March, Australian scientists are trying to bring revive a vanished species of frog by thawing frozen cells that were taken from the animals before their extinction in the early 1980s.  The scientists are putting the extinct frog’s DNA into eggs from closely related species and coaxing the eggs to develop into embryos. If they can get the frogs to develop into adults, the animals could start reproducing and build a growing population.

Carlin and his colleagues think that a population brought back from oblivion this way would immediately deserve to go onto the list of endangered species. “The central purpose of the statute is to identify, protect, and promote the recovery of precisely those species facing the greatest risk,” they write. “None has faced greater risk than a species that actually has gone extinct.”

But in order for a revived species to survive, it will need help. You couldn’t just toss a few tadpoles down the nearest sewer grate and expect them to handle things from there. They’d need protected land, safeguards to defend them against devastating diseases, and perhaps a long-term captive breeding program to deliver enough new animals to get the population off the ground. Otherwise, a revived species could quickly suffer an unprecedented fate: a second extinction.

In theory, a species could gain this official protection as soon as scientists produced a single individual. A single individual may not seem to warrant being called a species. After all, a healthy species is made up of thousands of individuals and has lots of genetic variation. But if the Franciscan manzanita serves as an example, Carlin and his colleagues argue, the government could grant protection to a single individual.

Even if a revived species did gain official protection, however, it may not necessarily see the outside of a laboratory. The government would need to judge the risk of releasing it into the wild. This would not involve a government official played by Jeff Goldblum standing up and shouting, “Hasn’t anyone seen Jurassic Park?” The serious risks that de-extinction might pose would be for other animals and plants, not people.

Carlin and his colleagues suggest that regulators could follow the example of the Florida panther. When conservation biologists set out to save the dwindling population of panthers in Florida, they decided to bring panthers from Texas to increase their genetic diversity. Before the biologists could carry out this plan, though, the government first had to determine the risk of such an introduction. Would the Texas cats bring a disease that would kill the ones in Florida? The answer, regulators decided, was no.  The Texas panthers were delivered, and they’ve been a boon to the Florida population.

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Passenger pigeon.  Image from Wikipedia.

In some cases, in other words, the existing rules would be good enough for the government to make decisions about de-extinction. But their decisions will get tougher if species are revived in less direct ways than cloning. Nobody froze a passenger pigeon before the species became extinct in 1914, for example, and so Ben Nowak of the University of California at Santa Cruz and his colleagues have proposed reverse-engineering a closely related pigeon species instead.

The first steps in this process are already underway. Nowak and his colleagues are gathering fragments of DNA from preserved museum specimens and combining their sequences to reconstruct much of the passenger pigeon genome sequence. They can then compare its genome to those of close relatives, like the band-tail pigeon, to get a sense of how the passenger pigeon evolved to become so distinctive.

Even if Nowak and his colleagues created a perfect copy of the passenger pigeon genome, it wouldn’t be possible to synthesize a matching DNA molecule. Technology today only offers the possibility of synthesizing segments of DNA and inserting them into the genome of a related bird. If scientists identified the key segments that made passenger pigeons distinct from other species, they could, theoretically, alter a bird like a band-tailed pigeon so that it became in effective passenger pigeon.

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Carlin and his colleagues question whether such “facsimiles,” as they call the hypothetical creatures, deserve to be called passenger pigeons. If genetic authenticity is required, then they may not make the grade. In fact, government regulators might look at them instead as genetically modified organisms–a banded pigeon engineered with passenger-pigeon qualities. If that’s how things turn out, then a different set of laws will come into play–ones that are used to evaluate everything from bacteria that churn out human insulin to zebrafish that glow with jellyfish genes.

The U.S. government can set different levels of control for a genetically modified organism. It may be intensely regulated, for example, or the government may decide that there’s no risk to the environment if it gets into the wild. Today, for example, the U.S. Department of Agriculture released a draft environmental impact statement for genetically modified seeds from Dow AgroSciences. Part of their Enlist Weed Control System, these corn and soybean plants are engineered to withstand a weed-killer called 2,4-D. Today’s report could open the way to deregulating the seeds, which would lead to their commercial development. Farmers could plant them without worrying about keeping the plants from spreading in the environment. Carlin and his colleagues suggest that the same process could be adapted to evaluate de-extinction facsimiles.

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Carolina parakeet. Wikipedia

There’s another way in which Enlist seeds could be relevant to de-extinction: they’re patented. An environmental group that wants to bring back an extinct sea cow to the Pacific may not have any interest in patenting the animal. But there might well be corporations that get interested in doing so. Carlin and his colleagues suggest, for example, that bird-lovers might pay top dollar for their own Carolina parakeet, a gorgeous bird that became extinct by the 1920s. Two prominent advocates have already formed a de-extinction company, called Ark Corporation that might use technology developed for bringing back extinct species to devise new livestock breeds.

Can you patent a mammoth? Carlin and his colleagues find this to be a very tricky question, thanks to the trickiness of the patent system. Congress has stated that “anything under the sun that is made by man” should be patentable. That statement has a nice poetic ring, but it leaves us to decide what “made” means. The Supreme Court has ruled that genetically engineered organisms can be patented if they have “markedly different characteristics from any found in nature.” If a company makes woolly mammoths by reverse engineering an Asian elephant, they might be able to argue that it’s so unnatural that it can be patented. But if scientists found an exquisitely preserved frozen mammoth egg and reared it into a full-grown mammoth (dream with me here, people), then it might not be patentable. It would by revived by man, not made by man.

While Carlin and his colleagues delve into fascinating detail about the legal future of de-extinction, they make it clear from the outset that they’re not dealing with the ethics of it. As intriguing as de-extinction can be in theory, critics have attacked it as a foolish distraction from the true horrors of extinction going on right now around the world.  (I’d recommend reading this strongly critical post by fellow Phenom Brian Switek.) These critics may find a discussion of the laws governing de-extinction to be an equally pointless distraction. But just because they don’t like de-extinction doesn’t mean that someone else won’t try it. And it’s those conflicts that laws are supposed to sort out in a democracy. “How to Permit Your Mammoth” is a first step towards preparing for the conflicts that de-extinction may well bring.