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.
Showing posts with label Antiquities Act. Show all posts
Showing posts with label Antiquities Act. Show all posts
Thursday, September 17, 2009
Friday, January 09, 2009
Amend Antiquities Act-Wespac
By Jayvee L. Vallejera
Saturday, January 10, 2009
The Honolulu-based Western Pacific Regional Fishery Management Council is urging the U.S. Congress to amend the Antiquities Act to require congressional approval of proposed monuments.
This comes in the wake of President George W. Bush's declaration Tuesday of three vast swaths in the Pacific as national marine monuments, using his executive powers under the hundred-year-old Act.
In a statement issued Thursday, Wespac voiced concern that Bush's use of the Antiquities Act to create the new marine monuments bypasses the National Environmental Policy Act, which mandates an environmental review and prior consultation with indigenous people and other members of the public.
“The Antiquities Act should be amended to require congressional approval of proposed monuments as it has been done for Wyoming and Alaska and to require compliance to NEPA,” Wespac executive director Kitty Simonds said.
Wespac was one of those who had initially opposed the designation of the marine monuments.
The new marine monuments are composed of the three northernmost islands of the Northern Mariana Islands-Uracas, Asuncion, and Maug-and the Marianas Trench, the Rose Atoll in American Samoa, and a string of islands in the Pacific called the Line Islands, which include the Johnston Atoll and Wake Island. Bush's Tuesday proclamation bans commercial fishing in these areas but allows for recreational, sustenance and traditional indigenous fishing.
The Hawaii longline fishery currently fishes around Palmyra, Kingman and Johnston Atolls. The American purse seine fishery also operate within the U.S. Pacific remote island areas, and CNMI fishermen have harvested in the three northern islands of their island chain.
With commercial fishing now prohibited in these areas, Wespac believes this could put more pressure on other fishing grounds.
“The significant loss of fishing areas available to commercial fishermen in Hawaii and the Commonwealth of the Northern Mariana Islands can be counterproductive to sustainable fishery goals,” Simonds said. “Reduction of available fishing areas often leads to increased fishing pressure in other areas.”
Despite misgivings, Wespac chair Sean Martin said, “The Council looks forward to continuing its work under the Magnuson-Stevens Act and the presidential proclamations to protect everyone's interest in these areas,” said Wespac.
Wespac develops and amends fishery management plans for the U.S. Pacific Islands under the Magnuson-Stevens Fishery Conservation and Management Act. These plans and amendments are transmitted to the Secretary of Commerce for approval and implemented by the NOAA National Marine Fisheries Service.
With the new marine monuments, nearly a quarter of the U.S. exclusive economic zone waters surrounding the Pacific islands are now designated as marine protected areas, and the U.S. Pacific Islands account for half of the MPAs in the entire United States.
Saturday, January 10, 2009
The Honolulu-based Western Pacific Regional Fishery Management Council is urging the U.S. Congress to amend the Antiquities Act to require congressional approval of proposed monuments.
This comes in the wake of President George W. Bush's declaration Tuesday of three vast swaths in the Pacific as national marine monuments, using his executive powers under the hundred-year-old Act.
In a statement issued Thursday, Wespac voiced concern that Bush's use of the Antiquities Act to create the new marine monuments bypasses the National Environmental Policy Act, which mandates an environmental review and prior consultation with indigenous people and other members of the public.
“The Antiquities Act should be amended to require congressional approval of proposed monuments as it has been done for Wyoming and Alaska and to require compliance to NEPA,” Wespac executive director Kitty Simonds said.
Wespac was one of those who had initially opposed the designation of the marine monuments.
The new marine monuments are composed of the three northernmost islands of the Northern Mariana Islands-Uracas, Asuncion, and Maug-and the Marianas Trench, the Rose Atoll in American Samoa, and a string of islands in the Pacific called the Line Islands, which include the Johnston Atoll and Wake Island. Bush's Tuesday proclamation bans commercial fishing in these areas but allows for recreational, sustenance and traditional indigenous fishing.
The Hawaii longline fishery currently fishes around Palmyra, Kingman and Johnston Atolls. The American purse seine fishery also operate within the U.S. Pacific remote island areas, and CNMI fishermen have harvested in the three northern islands of their island chain.
With commercial fishing now prohibited in these areas, Wespac believes this could put more pressure on other fishing grounds.
“The significant loss of fishing areas available to commercial fishermen in Hawaii and the Commonwealth of the Northern Mariana Islands can be counterproductive to sustainable fishery goals,” Simonds said. “Reduction of available fishing areas often leads to increased fishing pressure in other areas.”
Despite misgivings, Wespac chair Sean Martin said, “The Council looks forward to continuing its work under the Magnuson-Stevens Act and the presidential proclamations to protect everyone's interest in these areas,” said Wespac.
Wespac develops and amends fishery management plans for the U.S. Pacific Islands under the Magnuson-Stevens Fishery Conservation and Management Act. These plans and amendments are transmitted to the Secretary of Commerce for approval and implemented by the NOAA National Marine Fisheries Service.
With the new marine monuments, nearly a quarter of the U.S. exclusive economic zone waters surrounding the Pacific islands are now designated as marine protected areas, and the U.S. Pacific Islands account for half of the MPAs in the entire United States.
Tuesday, October 28, 2008
'Antiquities Act the wrong tool'
By Stefan Sebastian
Business Editor
Rep. Madeleine Bordallo (D-GU) is urging the White House to conserve the waters around the CNMI's northern islands under the National Marine Sanctuaries Act, a statute that requires public and business sector consultations on management issues, rather than unilaterally designating the region as a national monument.
Bordallo's letter comes after local leaders in the CNMI long opposed to the Bush administration's proposal to establish a monument in the waters at issue, including Gov. Benigno Fitial, softened their stance last week in meetings with White House Council on Environmental Quality chief James Connaughton.
Talks will likely continue on the plan if measures to restore the CNMI's control over near-shore ocean resources-which it lost in a recent federal court case-play a part in them, a government spokesman has said, but the governor and other key figures are for now declining to give it their support.
In her Oct. 24 letter to Connaughton, Bordallo says that President Bush's plan to establish the proposed monument under the Antiquities Act would exclude economic interests and local communities from decision-making when it comes to how the waters would be managed. The Sanctuaries Act, she says, would serve as a more open way to craft a conservation plan for the region.
“I view retention of local flexibility to manage our marine resources in a way that balances the protections needed for sustainable marine resources with a thriving economy as an important sovereignty issue,” she writes. “The process in place under the National Marine Sanctuaries Act, which involves formal public consultation of stakeholders, is a far better process that could be used to assess the merits of these proposals.”
Bordallo adds that local fisheries should remain under the control of the Magnuson-Stevens Act, which regulates fisheries, and regional fisheries management councils.
“In short, where local conservation efforts have proven successful, I believe we should employ existing administrative processes that provide a proper role for ongoing local involvement in the management of our precious marine resources,” she writes. “I am extremely concerned that the process that is being employed now, in the last weeks of the Bush Administration, does not provide for adequate public input, let alone adequate congressional oversight.”
President Bush is expected to issue a decision on the monument issue before he leaves office in January.
Business Editor
Rep. Madeleine Bordallo (D-GU) is urging the White House to conserve the waters around the CNMI's northern islands under the National Marine Sanctuaries Act, a statute that requires public and business sector consultations on management issues, rather than unilaterally designating the region as a national monument.
Bordallo's letter comes after local leaders in the CNMI long opposed to the Bush administration's proposal to establish a monument in the waters at issue, including Gov. Benigno Fitial, softened their stance last week in meetings with White House Council on Environmental Quality chief James Connaughton.
Talks will likely continue on the plan if measures to restore the CNMI's control over near-shore ocean resources-which it lost in a recent federal court case-play a part in them, a government spokesman has said, but the governor and other key figures are for now declining to give it their support.
In her Oct. 24 letter to Connaughton, Bordallo says that President Bush's plan to establish the proposed monument under the Antiquities Act would exclude economic interests and local communities from decision-making when it comes to how the waters would be managed. The Sanctuaries Act, she says, would serve as a more open way to craft a conservation plan for the region.
“I view retention of local flexibility to manage our marine resources in a way that balances the protections needed for sustainable marine resources with a thriving economy as an important sovereignty issue,” she writes. “The process in place under the National Marine Sanctuaries Act, which involves formal public consultation of stakeholders, is a far better process that could be used to assess the merits of these proposals.”
Bordallo adds that local fisheries should remain under the control of the Magnuson-Stevens Act, which regulates fisheries, and regional fisheries management councils.
“In short, where local conservation efforts have proven successful, I believe we should employ existing administrative processes that provide a proper role for ongoing local involvement in the management of our precious marine resources,” she writes. “I am extremely concerned that the process that is being employed now, in the last weeks of the Bush Administration, does not provide for adequate public input, let alone adequate congressional oversight.”
President Bush is expected to issue a decision on the monument issue before he leaves office in January.
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