Finding Safe Passage through a Wave of Extinctions: Israel's Endangered Mountain Gazelle

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Acknowledgements

I am grateful to Aharon Cassel, Ron Frumkin, Benjamin Hyman, Elana Mayshar, Chaviva Shefer, and Yoram Yom Tov for reviewing a draft of this article and for their valuable comments. I am also thankful to David Schorr for inviting me to present an early version of the article to the Law, Environment, and Energy Workshop of Tel Aviv University, and to the workshop members for their very helpful input.

Notes

1 HC11745/04,466/05 Reiss, Roth, Shachaf, Adam, Shefer, Gazella Gazella v. Nat'l Planning & Building Comm. (2008) (Isr.) [hereinafter Gazelle Decision]. The petition received wide media coverage in various news outlets. See, e.g., Zafrir Rinat, The Voice for the Gazelle, Haaretz (7 October 2005), http://www.haaretz.co.il/opinions/1.1025886; Petitioner No. 6 Is the Mountain Gazelle, INN (2 March 2005), http://www.inn.co.il/News/News.aspx/105084.

2 In the context of this narrative, the area referred to as Mitspeh Neftoah also includes the adjacent Ramot Forest.

3 “The IUCN specialist Antelope Group has concluded that the mountain gazelle is as subspecies of Gazella gazella, e.g., Gazella gazella gazella.” E-mail from Dr. David Mallon, co-chair, IUCN Antelope Specialist Group, to Rachelle Adam (17 June 2015) (on file with author); see also Lia Hadas et al., Wild Gazelles of the Southern Levant: Genetic Profiling Defines New Conservation Priorities, 10 Plos One 1371 (2015), available at http://journals.plos.org/plosone/article?id=10.1371/journal.pone.011640 (“Both of these studies, as well as a recent genetic analysis of the Gazella arabica lectotype and a morphological study, have divided Gazella gazella into two distinct genetic lineages: Gazella gazella (mountain gazelles—the northern clade, original type locality) and Gazella arabica (Arava valley and the Arabian Peninsula). Therefore the mountain gazelles found in Israel are recognized as a distinct species”). However, the 2008 petition, prior to this decision from 2015, refers to the mountain gazelle as Gazella gazella.

4 Apparently, there is also a very small population in Turkey. Id. at 13.

5 Zafrir Rinat, The Nature Reserves Authority: Calls for Harsher Punishment for Gazelle Hunters, Haaretz (2015); Heinrich Mendelssohn, Yoram Yom-Tov, & Colin P. Groves, Gazella gazella, Mammalian Species, No. 490, 1, 5 (23 June 1995) [hereinafter Mendelssohn]; Amir Balaban, expert opinion on the impact of the building on Mitspeh Neftoah on the Jerusalem population of gazelles attached to Petition 466/05, at 2–3 [hereinafter Balaban 2005]; Amir Balaban, expert opinion, 13 April 2008, at 3 [hereinafter Balaban 2008]; e-mail from David Mallon to Rachelle Adam (7 February 2015) (on file with author).

6 E-mail from Amir Balaban to Rachelle Adam (16 January 2015) (on file with author); see also Jerusalem's Prickly Problem: Porcupines, Gazelles, and Bats in Danger of Extinction, Haaretz (15 July 2013, 12:02 PM), http://www.haaretz.com/israel-news/.premium-1.535762, (stating that “in 150 urban nature sites … within the city's neighborhoods and it outskirts, live approximately 200 gazelles).”

7 Balaban 2008, supra note 5, at 4–5.

8 The gazelle cannot appeal to the Israeli High Court of Justice, news.walla.com (27 February 2005), http://news.walla.co.il/item/677418. Following an obiter decision in an interim proceeding, erroneous media reports announced that the gazelle had been removed as a petitioner. The presiding judge had determined that the gazelle does not have standing and also suggested that the petitioners remove the species from the list of petitioners. The petitioners, however, refused, and the gazelle remained. See infra text accompanying notes 67–80.

9 On the gazelle in scripture, see, generally, Eliyahu Netanel, The Gazelle, Aspects of Language (Tsvi, HaBeitim Lashoni'im) (2000).

10 Although the gazelle has traditionally been regarded as the model for the icon of the postal services, in actual fact the animal in the icon is a deer (in Hebrew, Ayal). See Wikipedia, Israel's Postal Service, https://he.wikipedia.org/w/index.php?title=%D7%93%D7%95%D7%90%D7%A8_%D7%99%D7%A9%D7%A8%D7%90%D7%9C&action=edit&section=2 (last accessed 15 February 2016).

11 Zafrir Rinat, Israel's Gazelles in Grave Danger of Extinction, International NGO Warns, Haaretz (3 September 2015), http://www.haaretz.com/israel-news/science/.premium-1.674238 (“Unfortunately gazelles, which have survived 11,000 years of human history in the Land of Israel, have been unable to survive human activity over the last 30 years, and their survival is threatened”).

12 National Outline Plan 22 for Forests and Forestry, approved by the government, 16 November 1995, Y.P. 4363, 980.

13 Ministry of the Interior, Jerusalem District Outline Plan 30/1, Y. P. 6591, 4613 (13 May 2013), http://www.moin.gov.il/OfficeUnits/PlanningAdministration/masterplan/Pages/Tmm1.30.aspx New Jerusalem Outline Plan predicts 950,000 residents in 2020, Globes (29 July 2007), http://www.globes.co.il/en/article-1000237223 (referencing the National Planning and Building Committee for Preferred Housing Areas for a succinct description of the planning process).

14 Michael J. Glennon, Has International Law Failed the Elephant?, 84 Am. J. Int'l L. 1, 43 (1990) (“The struggle to protect beings without reference to any ‘objective,’ mathematically quantifiable utility enriches our spirit. Even if this is not a struggle to ensure our own survival, it is a battle to clarify our character, to define what we hold dear, for ourselves and our descendants. It is the character of our species that is at issue. Who can say, on the day the last elephant dies, that the human race will ever again be the same?”).

15 Angad Singh, A New Mass Extinction Could Be Underway, Researchers Say, CNN (20 June 2015), http://www.cnn.com/2015/06/20/world/mass-extinction-animals; see also Damian Carrington, Earth Has Lost Half of Its Wildlife in the Past 40 Years, Says WWF, The Guardian (30 September 2014), http://www.theguardian.com/environment/2014/sep/29/earth-lost-50-wildlife-in-40-years-wwf; Decision adopted by Conference of the Parties to the Convention on Biological Diversity at its Tenth Meeting X/2, The Strategic Plan for Biodiversity 2011–2020 and the Aichi Biodiversity Targets, 29 October 2010, https://www.cbd.int/decision/cop/?id=12268 (stating that “[s]cientific consensus projects a continuing loss of habitats and high rates of extinctions throughout this century if current trends persist, with the risk of drastic consequences to human societies as several thresholds or ‘tipping points’ are crossed. Unless urgent action is taken to reverse current trends, a wide range of services derived from ecosystems, underpinned by biodiversity, could rapidly be lost”).

16 E-mail from Gila Kahila Bar Gal to David Mallon (28 July 2015) (on file with the author).

17 Hadas et al., supra note 3, at 2; id. at 13 (stating an exception for a population of approximately 200 gazelles in Turkey).

18 E-mail from Yoram Yom Tov to Rachelle Adam (19 January 2016) (on file with the author); Balaban 2008, supra note 5, at 3; see also Hadas et al., supra note 3, at 1 (stating that ongoing habitat degradation and other human effects, such as poaching, suggest the need for drastic measures to prevent species extinction); Israel without gazelles—Who Could Imagine It?, TEVA (22 December 2013), http://www.teva.org.il/?CategoryID=197&ArticleID=19882 Peretz Giladi, The Golan, Land of the Gazelle?, at 1, Shvil Haartez.

19 Hadas et al., supra note 3, at 3 (“Our study of wild gazelles from the Southern Levant (n = 111) revealed their uniqueness compared to other populations of the same species worldwide. In all three species, the populations in Israel harbored distinguishing haplotypes … which were not shared by specimens from other localities. Since 2006 roughly all of the known acacia gazelles have resided in a designated protected area, the Hai-Bar Yotvata nature reserve, which they share with Dorcas gazelles implying their genetic isolation and distinctiveness”). The Dorcas and Acacia gazelle species are also the subject of desperately needed conservation measures. This article, however, addresses the mountain gazelle species solely.

20 Id. at 12; Mendelssohn et al., supra note 5, at 3.

21 Hadas et al., supra note 3.

22 Mendelssohn et al., supra note 5, at 5; Hadas et al., supra note 3, at 2; Balaban 2008, supra note 5, at 2.

23 Zafrir Rinat, supra note 5.

24 Teva (26 February 2014), www.teva.org.il/?CategoryID=254&ArticleID=20194&SearchParam. The absence of gazelle observations might have been due to the emergency nature of the surveys since the government was not sure how long the area would remain under Israeli control. Id.

25 Giladi, supra note 18, at 1. He also notes that the transfer took place without accurate and well-based knowledge as to existing gazelle numbers in the Golan, and that this policy stemmed from the vision of a INRA zoologist who aspired to reintroduce to Israel animals mentioned in the Bible.

26 E-mail from Yoram Yom Tov, supra note 18; Mendelssohn et al., supra note 5, at 5; Giladi, supra note 18.

27 Giladi, supra note 18.

28 Id.; Mendelssohn et al., supra note 5, at 5.

29 Giladi, supra note 18, at 1–2.

30 Id. at 2.

31 Id.

32 Id. Today the INRA in cooperation with the Agriculture Ministry work together with farmers to gather and treat animal carcasses in order to cut down on predators. Some of the carcasses are transferred to the feeding station for eagles to support their dwindling numbers. Nevertheless, poor disposal methods remain a key issue in the growth of predator populations.

33 Id. at 2.

34 Ron Frumkin, Landscape and Environmental Survey, Mitspeh Neftoah Neighborhood Park 8, 16 (2010).

35 Jordanian rule was not beneficial for the gazelles under which they were literally hunted to death and today are considered extinct in Jordan. Hadas et al., supra note 3, at 2. When Israel took over territories previously held by Jordan, the chances of survival for gazelles increased, chiefly because of Israel's strict laws for wildlife protection and their enforcement.

36 Professor Yoram Yom Tov, from the Department of Zoology at Tel Aviv University, addressed the growing problem of isolation of wildlife populations on either side of the barrier fence. The isolation is liable to create small and isolated populations and to decrease the genetic diversity of the populations. Fencing off vineyards in the Jerusalem corridor presents the severity of the problem, together with the enclosure of the gazelle population and other wildlife between the barrier fence, the Jerusalem–Tel Aviv highway, Jerusalem and its surrounding neighborhoods and the vineyard fences. Yoram Yom Tov, Fences as Barriers to Animals and Humans, 3 Ecology and Env't 198–199 (2012). The Society for the Protection of Nature in Israel (SPNI) wrote letters to the CEOs of international corporations with interests in vineyards in Israel. See SPNI letters titled “Fenced Vineyards in Jerusalem Place Wildlife in Danger” (“The Jerusalem corridor is a vivid and essential habitat of the Israeli Gazelle population, constituting its only pathway from the Jerusalem mountains to the coastal plain. This pathway is vital for the Gazelles' existence and well-being … we maintain that fencing vineyards not only blocks the ecologically imperative pathway, but also endangers gazelles and other wildlife in the area” [in Hebrew]).

37 See, e.g., Zafrir Rinat, Was the Gazelle Park Built Too Late?, Haaretz, 11 November 2013.

38 Frumkin, supra note 34, at 17.

39 Balaban, supra note 7.

40 Amir Balaban, 1 January 2005, expert opinion attached to Petition 466/05; see also Yoram Yom Tov, 15 February 2003, expert opinion attached to Petition. On the “Gazelle Valley” and the new park that opened in April 2015, see Jessica Steinberg, Gazelles Return to Embattled Jerusalem Valley, The Times of Israel (5 February 2015), http://www.timesofisrael.com/gazelles-return-to-embattled-jerusalem-valley.

41 Geoffrey and Susan Jellicoe, The Landscape of Man Shaping the Environment from Prehistory to the Present Day Cover (3d ed. 1964).

42 The area is considered an excellent example of an ancient agricultural economy based on wine-making, dating from 586–800 BC. See Letter from Dr. Yuval Gadot to Rachelle Adam (20 October 2015) (on file with author).

43 Frumkin, supra note 34, at 10.

44 Id.; see also E-mail from Ron Frumkin to Rachelle Adam (20 January 2016) (on file with author).

45 “It is important to indicate that with the construction of the security fence, Ha'Arazim Valley and the Samuel, Luz, and Halilim wadis, have become a closed enclave,” Unit for Surveys of Urban Nature Sites, Society for the Protection of Nature in Israel (ed.), “Expert opinion on the implications of the proposed building plan ‘Mordot Ramot’ on the gazelle population and the natural systems of Mitspeh Neftoah,” at 3 [hereinafter SPNI survey].

46 The Law to Advance Building in Preferred Housing Areas (Emergency Measures), 2014, SH 2469, ¶ 5 (Isr.); see Nir Hason & Zafrir Rinat, Building Plan Approved for Mitspeh Neftoah in Jerusalem, Haaretz (5 February 2016), http://www.haaretz.co.il/news/science/.premium-1.2774185.

47 Balaban 2008, supra note 5, at 3.

48 Findings of a field trip of the author together with the zoologist Oved Gur, April 2015.

49 SPNI survey, supra note 45, at 4.

50 Id. at 5.

51 Jerusalem Region Outline Plan 37/1. The plan was ultimately rejected in 2007 by the National Planning Council. See West Jerusalem Plan Cancelled, Teva (5 February 2016), http://www.teva.org.il/?CategoryID=231&ArticleID=239.

52 Jerusalem Mayor Freezes Safdie Plan, Israel Today (26 November 2016), http://www.israeltoday.co.il/NewsItem/tabid/178/nid/10445/Default.aspx?archive=article_title Eetta Prince-Gibson, Coalition of MKs to Fight the Safdie Plan, Jerusalem Post (14 June 2016), http://www.jpost.com/Israel/Coalition-of-MKs-to-fight-the-Safdie-Plan New Jerusalem Outline Plan Predicts 950,000 Residents in 2020, Globes (29 July 2007), http://www.globes.co.il/en/article-1000237223.

53 Jerusalem Region Outline Plan 47/1; see Jonathon Lis and Zafrir Rinat, Court Shafts Last Vestige of Safdie Plan, HaAretz (5 February 2016), www.haaretz.com/court-shafts-last-vestige-of-safdie-plan-1.253313.

54 Pursuant to authorization in accordance with the Planning and Building Law, 1968, SH No. 307, sec. 107A (Isr.).

55 Based on the personal experience of the author.

56 Apparently, some of these accusations were well founded since today at least one of the city officials who defended the development plan is sitting in jail for corruption crimes connected to another building project. Uri Sheetrit, former Jerusalem city engineer, was convicted of accepting a bribe of NIS 130,000, as well as for money laundering. See Holyland Case, Wikipedia (5 February 2016), https://en.wikipedia.org/wiki/Holyland_Case Yonah Jeremy Bob, Former Jerusalem Municipal Official Gets Seven Years Prison on Holyland Affair, Jerusalem Post (5 February 2016), http://www.jpost.com/Breaking-News/Former-Jerusalem-municipal-official-Uri-Sheetrit-gets-7-years-prison-in-Holyland-affair-352091. Additionally, as the writing of this article neared completion, the appeal of the former mayor of Jerusalem, Ehud Olmert (also involved in the “Holyland Project” scandal) on a prison sentence for corruption charges was finally rejected. Sharon Pulwer & Yaniv Kubovich, Former PM Olmert Begins Serving Prison Sentence, a First in Israel's History (15 February 2016), http://www.haaretz.com/israel-news/1.703227.

57 Christopher Stone, Should Trees have Standing? 164 (3d ed. 2010) (referring to the case of the Israeli Gazelle petition).

58 Petition, supra note 1, at § 3.b.

59 Id.

60 Id. at ¶ 4. See also a 2007 report on existing land options for development, compiled by Ofer Gotthelf, that indicated a stockpile of 47,000 apartments, thus making development of open spaces for housing superfluous.

61 See Ministry of Environmental Protection, Jerusalem District Plans (5 February 2016) (referring to the opinion of the Environment Ministry on the environmental impact assessment prepared in regard to Mitspeh Neftoah).

62 Expert opinions of Prof. Yoram Yom Tov and Amir Balaban (on file with the author).

63 E. O. Wilson, The Diversity of Life 342 (new ed. 1992).

64 Petition, supra note 1, at §1.a.

65 The requests were filed on February 23, 2005 and January 24, 2008.

66 See Detailed plan 6885 (on file with the author).

67 See also Gazelle Decision, supra note 1.

68 Gazelle Decision, supra note 1, at ¶¶ 11–12.

69 Id. at ¶¶ 18–19.

70 Id. at ¶ 20.

71 See infra text accompanying notes 83–84.

72 Gazelle Decision, supra note 1, at ¶ 20.

73 Gazelle Decision, supra note 1, at ¶ 11.

74 See The Law to Advance Building in Preferred Housing Areas, supra note 46.

75 See supra text accompanying note 65.

76 Order, J. Elyakim Rubinstein, HCJ 466/05 Gazella gazella v. the National Planning and Building Committee (the Planning and Building Committee for Fundamental Planning Issues) §B.1 (2005) (Isr.). The petitioners took this as a broad hint that if they did not agree to remove the gazelle as a petitioner, the court would impose high court fees, yet this did not prove a deterrent.

77 Id. at § B.2. Justice Rubinstein did not mention § 17A to the Animal Welfare (Animal Protection) Law, which authorizes approved animal welfare organizations to request restraining orders against perpetrators of cruelty against animals. Animal Welfare (Animal Protection) Law, 5754–1994, § 17A (1994) (Isr.).

78 Order, supra note 76, at § B.3.

79 Id. at § B.4.

80 Id.

81 E.g., The Israeli Gazelle Can Not Petition the High Court of Justice, Walla! News (27 February 2005), http://news.walla.co.il/item/677418.

82 See, e.g., Mati Wagner, Will Israel's Supreme Court Tilt Conservative after Dorit Beinisch Leaves?, Jewish Telegraphic Agency (28 February 2012).

83 See, e.g., Gidi Weitz & Sharon Polver, Conservation, Defensive, and Fearful of Confrontation with the Government: The Supreme Court Model 2016, Haaretz (28 January 2016), http://www.haaretz.co.il/magazine/.premium-1.2832782.

84 See Rvital Chovel, Legal Costs Are Growing and Justice Becomes a Luxury, Haaretz (2 February 2014), http://www.haaretz.co.il/news/law/.premium-1.2244229.

85 HCJ 5315/13, RLS v. The National Planning Council (2014) (Isr.).

86 National Parks, Nature Reserves, National Sites and Memorial Sites Law, 5758–1998 (Isr.).

87 Accordingly, an amendment to the Planning and Building Law determines that when construction requires a “taking permit” pursuant to the Parks and Reserves Law, such a permit will constitute a preliminary requirement for the building permits. This amendment forges a long-needed link between conservation law and planning law. Amendment 101 to the Planning and Building Law, 5774–2014 (Isr.).

88 As well as the regulatory tool for implementation of the Convention on International Trade in Endangered Species. See Israel Ministry of Environmental Protection, Nature, Biodiversity, & Open Spaces, http://www.sviva.gov.il/English/Legislation/Pages/NatureBiodiversityOpenSpaces.aspx (last accessed 14 February 2016).

89 Wildlife Protection Law, 5715–1955, §1 (Isr.) (definition of “hunting”).

90 Hadas et al., supra note 3, at 1.

91 Id. at 14.

92 See Peter Beaumont, Palestine Mountain Gazelle Now Endangered, Says Scientists, The Guardian (4 September 2015), http://www.theguardian.com/world/2015/sep/04/palestine-mountain-gazelle-now-endangered-say-scientists.

93 E-mail from David Mallon, co-director of the Antelope Specialist Group (7 February 2015) (on file with the author).

94 IUCN Species Survival Commission Antelope Specialist Group, Mountain Gazelle (Gazella gazella gazella), Extract from the 2015 IUCN Red List Assessment Submitted to the IUCN (on file with author).

95 Conservation International, From Words to Action: Key Organizations Team Up to Stop the Extinction Crisis (28 May 2013), http://www.conservation.org/NewsRoom/pressreleases/Pages/Organizations-Team-Up-Stop-Extinction-Crisis.aspx.

96 Convention on International Trade in Endangered Species of Wild Fauna and Flora, art. II, ¶¶ 1–2, 3 March 1973, 993 U.N.T.S. 243 (entered into force 1 July 1975) [hereinafter CITES]; Convention on the Conservation of Migratory Species of Wild Animals, art. I, ¶1(e), Art III, ¶4(a), 23 June 1979, 19 I.L.M. 15 (entered into force 1 November 1983) [hereinafter CMS].

97 CITES, supra note 96, art. II, at ¶1–2.

98 See CITES Notification to the Parties, Stricter Domestic Measures Concerning Import and Export of Wild Fauna and Flora, Notification No. 2004/025 (30 April 2004). There are two caveats: scientific research and education.

99 CMS, supra note 96, at preamble.

100 Id. at art. I, ¶ 1(e) (“Endangered” in relation to a particular migratory species means that the migratory species is in danger of extinction… .”).

101 Id. at art. III, ¶ 4(a).

102 CITES Secretariat, Gazella gazella, Species+, http://speciesplus.net/#/taxon_concepts/11971/legal.

103 Convention on Biological Diversity, 5 June 1992, 1760 U.N.T.S. 142 [hereinafter CBD].

104 Id. art. 8.

105 CBD, Strategic Plan for Biodiversity 2011–2020, including Aichi Biodiversity Targets (2010), https://www.cbd.int/sp/.

106 CBD, Strategic Plan for Biodiversity 2011–2020, COP 10 Decision X/2 (18–29 October 2010), https://www.cbd.int/decision/cop/?id=12268.

107 CBD, Technical Rationale (provided in document COP/10/27/Add.1) (2010), T 12, https://www.cbd.int/sp/targets/rationale/default.shtml.

108 Id.

109 CBD, Target 12 – Technical Rationale Extended (provided in document COP/10/INF12/Rev.1) (2010), https://www.cbd.int/sp/targets/rationale/target-12/default.shtml.

110 Alliance for Zero Extinction, http://www.zeroextinction.org.

111 Id.

112 Id.

113 Id.

114 Id.

115 A particularly succinct example is the United States Supreme Court argument in the case of Tennessee Valley Dam and the snail darter, and the flippant attitude of Justice Marshall, as well as that of the Attorney General, Griffin Bell, depicted in Zygmunt Plater's gripping account of the episode. Sygmunt Plater, The Snail Darter and the Dam: How Pork Barrel Politics Endangered a Little Fish and Killed a River 248 (2013).

116 See Thomas Berry, The Great Work: Our Way Into the Future 110 (2000); see also Anthony D'Amato & Sudhir K. Chopra, Whales: Their Emerging Right to Life, 85 Am. J. Int'l L. 21, 50 (1991) (“The human race will live or die as the ecosystem lives or dies. International law can no longer be viewed as an artifact exclusively concerned with the state and human interactions against a mere background called the environment. Rather, other living creatures in the environment are players in a new and expanded international legal arena”).

117 D'Amato & Chopra, Id., at 50 (“The dawning sense of duty to the environment … is evidence of a sense of obligation that constitutes the opinio juris component of binding customary international law”).

118 Id.