Lawyers: Marine monument decree unlawful

By Haidee V. Eugenio
Reporter

Thursday, September 17, 2009

Former President George H.W. Bush did not have the authority under the Antiquities Act to manage fishing activity in huge swaths of the Pacific Ocean, including the areas around the CNMI's three northernmost islands, based on an analysis of two lawyers writing in an American Bar Association newsletter.

The authors-James P. Walsh and Gwen Fanger of the San Francisco office of the law firm Davis Wright Tremaine LLP-published their analysis in the August 2009 edition of ABA's Marine Resources Committee Newsletter.

A copy of the newsletter can be accessed at http://www.abanet.org/environ/committees/marine/newsletter/aug09/MarineRes_Aug09.pdf.

Walsh and Fanger said Bush created the Pacific marine protected areas using the authority under the Antiquities Act “without in-depth scientific and environmental analysis, and without formal public comment.”

“Despite the alleged need to protect the marine areas because of environmental concerns, none of the Pacific MPAs [marine protected areas] were accompanied by any scientific analysis regarding the actual threat of fishing activity to the health of the marine ecosystems in the Pacific MPAs,” they said.

The lawyers said the Magnuson-Stevens Act and the National Marine Sanctuaries Act have clear procedures for crafting the protections necessary for marine protected areas within the exclusive economic zone, with full public participations and transparency, which is lacking in the Antiquities Act Proclamation process.

“While the general objective of protecting the oceans is commendable, disregarding applicable law to achieve that objective is not. The ends, no matter how politically correct, do not justify ignoring and sidestepping established law,” said the lawyers.

They said the Antiquities Act contains no congressional authority to unilaterally create monuments beyond the 3-mile territorial limit traditionally applied to domestic statutes, particularly with respect to fishing activities in the water column that are not related to lands, submerged or otherwise.

Walsh and Fanger also said the Magnuson-Stevens Act and NMSA trump the vague authority of the Antiquities Act with respect to management of free-swimming fish outside U.S. territorial jurisdiction but within the exclusive economic zone.

The lawyers said the Antiquities Act was Bush's most powerful top-down regulatory tool in his sweeping ocean policy.

Just before he left office, Bush, on Jan. 6, 2009, created the Marianas Trench Marine National Monument surrounding the CNMI's islands of Farallon de Pajaros, Maug and Asuncion, and the Rose Atoll Marine National Monument in American Samoa.

Another point stressed by the lawyers is that “pressures for change in ocean policy seem to emanate primarily from a few private trust funds, their administrators, and trust family leaders who are pursuing aggressive programs to influence specific outcomes through public 'campaigns.'”

One such trust is the Pew Charitable Trusts, a non-profit organization that, among other things, has actively pursued the expansion of MPAs.

The authors said “much of the push for the Marianas Trench Monument MPA was publicly associated with the Pew Charitable Trusts.”

The Friends of the Monument, which is composed of CNMI residents, was the main proponent of the Marianas Trench Marine National Monument, a 95,000-square mile marine protected area. Pew was one of the biggest supporters of the Friends of the Monument.

On the policy side, Walsh and Fanger said, there are at least three questions about the true purpose and effectiveness of the Pacific MPAs.

They said the open ocean is a constantly moving and changing fluid mass, which respects no boundaries, and it is quite unclear how the creation on paper of the static Pacific MPA can possibly protect these mobile ocean waters.

“For example, what will the creation of the Pacific MPAs really do to combat global warming or prevent ocean acidification?” they asked.

Second, they said the only new constraint on human activity in the Pacific MPAs is with respect to fishing, which has not been shown to cause a serious adverse impact.

They said there is the question of adequate enforcement and research, in terms of both cost and resources, given the enormous size of the area to be protected.

“It is probably likely that much of it will not be given much attention,” said the lawyers.

The total geographic area of the Pacific MPAs comprises 335,348 square miles of “emergent and submerged lands and waters,” mostly made up of ocean waters surrounding island areas with either very small or no resident populations.

Prior to the creation of the Pacific MPAs in 2009, Bush created in 2006 the Northwestern Hawaiian Islands Marine National Monument.