Are Pacific Marine Monuments Safe Now? Maybe Not, Chief Justice Roberts Suggests

posted in: April 2021 | 0
The Laysan albatross known as Wisdom, pictured here on Midway Atoll with one of her chicks, is the world’s oldest known banded wild bird. The Pacific Islands Fisheries Science Center has reported that, when they were still allowed to fish there, Hawai‘i longliners caught significantly more albatross inside the Papahanaumokuakea Marine National Monument expansion area than outside. USFWS

For more than a decade, the Western Pacific Fisheries Management Council (Wespac) has fruitlessly decried the proliferation and expansion of marine national monuments throughout the Pacific, beginning with President Bush’s establishment of Hawaiʻi’s Papahanaumokuakea monument in 2006.

But when Donald Trump became president in 2017 and ordered a review of certain monuments established since 1996, the possibility that commercial fishing could return to the Northwestern Hawaiian Islands’s Exclusive Economic Zone and to waters surrounding Rose Atoll in American Samoa, the Marianas Trench, and the Pacific Remote Island Areas (PRIA) seemed greater than it had ever been.

After reviewing more than two dozen monuments, then-Interior Secretary Ryan Zinke concluded in a 2017 report that of the Pacific marine monuments, only the Rose Atoll monument and the expansion area around the Pacific Remote Islands monument should be amended or the boundaries revised to comply with the Antiquities Act, “while also allowing the regional fishery management council to make fishery-management decisions.”

Zinke noted that despite an apparent lack of adherence to the purpose of the Antiquities Act, “some monuments reflect a long public debate process and are largely settled and strongly supported by the local community.”

More recently, Trump issued executive orders seeking ways to make the U.S. fishing industry more competitive and to reduce regulations to promote economic recovery. These orders also opened the door to changing the Pacific monuments’ boundaries and/or fishing restrictions.

To the council and its executive director Kitty Simonds, the best way to achieve the executive orders’ goals, as they related to the U.S. fishing industry in the Western Pacific, was to lift the fishing restrictions in the Pacific marine national monuments.

In the end, though, despite Zinke’s recommendations and Wespac’s multiple pleas to remove the fishing bans in all four Pacific marine monuments, Trump took no action on them before leaving office.

He did, however, lift the commercial fishing ban in the Northeast Canyons and Seamounts Marine National Monument in the Atlantic.

‘How Far We Have Come’

With Joe Biden now president, it remains to be seen whether the new administration will roll back any of the marine monuments’ existing protections. Instead, on his first day in office, Biden signed an executive order that requires the Secretary of the Interior to review Trump’s amendments to the boundaries of and conditions for the Bears Ears National Monument, the Grand Staircase-Escalante National Monument, and the Northeast Canyons and Seamounts Marine National Monument, “to determine whether restoration of the monument boundaries and conditions that existed as of January 20, 2017, would be appropriate.”

But a statement made last month by U.S. Supreme Court chief justice John Roberts in a case regarding the Northeast Canyons and Seamount monument raises the possibility that national monument boundaries and restrictions may still be vulnerable to manipulation via a court challenge.

On March 22, the high court unanimously agreed to not hear an appeal by the Massachusetts Lobstermen’s Association and other fishing industry groups of a D.C. district court decision to uphold the establishment of the 3.14-million-acre marine national monument five years ago.

In his statement on the groups’ petition for a writ of certiorari, Roberts explained that the Antiquities Act “originated as a response to widespread defacement of Pueblo ruins in the American Southwest” by pottery diggers. The act provided a “mechanism for the ‘preservation of prehistoric antiquities in the United States,’” he wrote. In addition to objects of historic interest, the act was meant to protect those of scientific interest, as well.

Roberts pointed out that under the act, the areas a president may protect as part of national monuments must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” Roberts wrote. “A statute permitting the president in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’ … has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.

“The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery. The monument contains three underwater canyons and four undersea volcanoes. The ‘objects’ to be ‘protected’ are the ‘canyons and seamounts themselves,’ along with ‘the natural resources and ecosystems in and around them,’” he wrote.

Octopus in Physalia Seamount within the Northeast Canyons and Seamounts Marine National Monument. Credit: NOAA

Since 1920, the Supreme Court has consistently sided with past presidents in challenges to very large monuments, for example, the 808,000-acre Grand Canyon National Monument, and those that protect marine waters, submerged lands, ecosystems, and wildlife.

Even so, Roberts wrote, “We have never considered how a monument of these proportions—3.2 million acres of submerged land—can be justified under the Antiquities Act. And while we have suggested that an ‘ecosystem’ and ‘submerged lands’ can, under some circumstances, be protected under the Act, see Alaska v. United States, 545 U. S. 75, 103 (2005), we have not explained how the Act’s corresponding ‘smallest area compatible’ limitation interacts with the protection of such an imprecisely demarcated concept as an ecosystem. The scope of the objects that can be designated under the Act, and how to measure the area necessary for their proper care and management, may warrant consideration—especially given the myriad restrictions on public use this purely discretionary designation can serve to justify.”

Roberts noted that the petitioners in the Northeast Canyons case failed to suggest what the Act’s “smallest area” clause means or provide any standard that might guide the court’s review. Still, he continued, “We may be presented with other and better opportunities to consider this issue without the artificial constraint of the pleadings in this case.” 

He suggested that those opportunities include five active cases involving the Cascade-Siskiyou National Monument expansion and its effects on commercial logging, as well as challenges to Trump’s changes to the Northeast Canyons and Seamounts, Grand Staircase–Escalante, and Bears Ears national monuments.

‘Glimmer of Hope’

University of Hawaiʻi professor Alison Rieser, an expert on ocean and coastal law, said she believes Roberts would have granted the petition. “He just couldn’t get three other justices to vote for review, and for good reason. … The petitioners didn’t plead sufficient facts or present a case on why the monument is not the smallest area compatible. That would have been hard to do since there is probably lots of evidence in the record that the White House worked with scientists and proponents to reduce it to the smallest area,” she said, referring to a July 2020 article published in Frontiers in Marine Science, which details the scientific basis for the monument designation and its boundaries.

The Natural Resources Defense Council, the Conservation Law Foundation, the Center for Biological Diversity, and R. Zack Klyver pointed out in their brief opposing the petition that “Congress has had over four decades to correct any mistake it saw [with the designation of monuments under the Antiquities Act], and it can still do so at any time. Indeed, petitioners note that Congress has—more than once—taken action to limit the president’s Antiquities Act authority in response to perceived overreach. But Congress has never imposed similar limitations on the president’s authority to designate monuments in the ocean.”

Rieser, who joined in an amicus brief in the D.C. Circuit Case on the issue of whether the Antiquities Act applies to the EEZ, said that Roberts’ statement may tempt some litigants to somehow challenge the Pacific marine monuments in court.

At the Wespac meeting last month, council member John Gourley said Roberts’ statement gives a “glimmer of hope” to those who have wanted to see fishery activities in the monument waters return to regulation under the Magnuson-Stevens Act (MSA). The MSA tasks the fishery councils with providing management recommendations to the National Marine Fisheries Service.

Gourley read parts of the statement aloud, adding, “It really hits home some of the long conversations we’ve had over the years.”

None of the other council members had any comment on it, but later in the meeting, the council renewed its efforts to lift monument fishing restrictions, albeit just in the Pacific Remote Islands Marine National Monument. The council voted unanimously to send a letter to the Biden administration asking him to do so.

— Teresa Dawson

For Further Reading

These articles in past issues of Environment Hawaiʻi discuss Wespac’s concerns over the Pacific marine monuments:

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