Are marine national monuments established under the Antiquities Act legal? And should Congress compensate fishers – even potential fishers – for loss of access to monument waters?
Those were two the questions posed to the Western Pacific Fishery Management Council when the subject of three recent monuments established in the U.S. waters of the Pacific Ocean came up at its October meeting. To launch the discussion, council staff member Kelly Finn informed the council that the several marine national monuments set aside by former President George W. Bush shortly before leaving office, as well as the Northwestern Hawaiian Islands Marine National Monument he authorized in 2006, were established under questionable legal grounds. Finn backed up her statement by invoking what she claimed was the American Bar Association’s view on the subject, as found in the ABA’s Marine Resources Committee Newsletter of August 2009
Included in the newsletter was an article, “Presidential Bans on Commercial Fishing in Pacific Marine Protected Areas: A Politically Popular but Unlawful Regulatory Action?” by James P. Walsh and Gwen Fanger of the San Francisco law firm David Wright Tremaine LLP. In her presentation to the council, Finn repeatedly referred to the Walsh and Fanger article as the position of the American Bar Association, yet the newsletter itself clearly states, “The views expressed herein … should not be construed as representing the policy of the ABA.”
The gist of Walsh and Fanger’s article is that the Antiquities Act was never intended to be used for waters extending beyond the traditional three-mile territorial limit, and that, in any case, the Magnuson-Stevens Act and the National Marine Sanctuary Act “trump the vague authority of the Antiquities Act” when it comes to fisheries management in any monument waters.
Arguing a contrary view – not provided to the council members – is an article by Alison Rieser and Jon Van Dyke of the University of Hawai`i. Their article, “New Marine National Monuments Settle Issues,” was, like that of Walsh and Fanger, published in an ABA sanctioned journal, Natural Resources & Environment (Fall 2009). Rieser and Van Dyke note that the three new proclamations made by Bush in 2009 – setting aside monuments for the Marianas Trench (off the Commonwealth of the Northern Mariana Islands), for Rose Atoll (in American Samoa), and for the Pacific Remote Islands (Howland, Wake, Baker, and Jarvis islands, Johnston and Palmyra atolls, and Kingman Reef) – “suggest that some of the intriguing legal questions concerning a marine national monument have been settled.”
The Council on Environmental Quality “drafted the three new proclamations,” Rieser and Van Dyke write, adding that the CEQ “undoubtedly found useful a 2000 Department of Justice legal opinion, written when President Clinton was considering a monument for the waters” around the Northwestern Hawaiian Islands (the area later protected by Bush as the Papahanaumokuakea Marine National Monument).
The report prepared for the council, however, stresses the “potential illegality of the monuments.” What’s more, it argues that because closures associated with the monuments will result in some fishers being permanently displaced from fishing grounds, “it would therefore be just for the U.S. government to compensate those fishery participants and communities that have been affected through a permanent prohibition on commercial fishing” in monument waters.
But just how much fishing is actually conducted in the areas given monument status?
According to Wespac’s own data, not much.
In American Samoa, the catch from the area of Rose Atoll averaged 240,000 pounds from 2001 to 2008. The average catch in the last four years of that period, however, is half that – 120,865 pounds, or just under 55 metric tons. Of the average total catch of 10 million pounds, this represents 1.2 percent.
In the case of the Mariana Trench monument, only the waters of the Island unit are closed to commercial fishing – which, in any case, was rarely pursued there. Still, Wespac staff mourned the loss of this potential: “Fishing is a primary long-term economic opportunity for the CNMI, but now one third of the island chain has been put off limits to commercial fishing,” the report prepared for the council states. And, notwithstanding the fact that the monument is less than a year old, the staff report writes off the touted economic benefits of the monument as having “failed to materialize due to the global economic recession and the claims that were used to promote their formation. [sic] Large numbers of visitors and scientists queuing to gain access to the monument islands and providing economic benefit to CNMI has not occurred as of yet.”
Waters now in the Pacific Remote Islands Areas National Marine Monument were fished primarily by purse seine fleets and occasionally Hawai`i-based longliners. Even Wespac admits, however, that “currently these catches comprise relatively small fractions of the total production from the various fleets.”
The full council duly approved a recommendation that staff prepared, asking the Secretary of Commerce to develop a compensation package for fishermen inconvenienced by the monuments, “in consultation with the fishing industry and the council.” It also asked the fishing agencies of Guam, American Samoa, and CNMI to conduct surveys of fishermen that may have fished in the monument areas but whose catch is “not represented in the current data set” – i.e., unreported.
Don Palawski, who represents the U.S. Fish and Wildlife Service on the council (but who has no vote), was the sole person who raised any concerns about this. “The last few meetings we’ve had a great deal of discussion about the purse seiners’ expansion,” he said. “I find it hard to believe that the expansion of monuments in the Pacific is hurting them. Second, I’d be curious as to whether the creation of the Pacific Remote Island Area monuments … will be a factor in preventing the longline industry from attaining its catch limits.”
Manny Duenas, who usually misses no opportunity to disparage purse seiners, rose to their defense this time. “When we were in American Samoa,” he said, referring to the council’s meeting there last spring, “the American hull purse seiners, that was their concern… There is an impact somewhere.”
And council chairman Sean Martin insisted that, notwithstanding catch limits on bigeye, the closure of PRIA waters to commercial fishing could have some financial pinch to it. While there are bigeye catch limits, he noted, “other species are commonly taken in addition to bigeye in the southern islands… In certain years, a significant amount of catch comes out of the southern remote islands, so there is some impact. I can’t put my finger on what it might be from a financial standpoint, but certainly there’s activity that used to take place in those areas that will no longer take place.”
The motion carried, with two abstentions (Peter Young and William Robinson).
Payouts for Bottomfishers
The council report was highly critical of the compensation plan that is being implemented for participants in the bottomfish fishery and the (defunct) lobster fishery in the Northwestern Hawaiian Islands. As of June 15, 2011, bottomfishing in the Papahanaumokuakea Marine National Monument will be banned; lobster fishing effectively ended more than a decade ago, when the populations of lobsters could no longer support commercial harvesting.
Last year, Congress authorized $6,697,500 to be used to compensate the fishers displaced by establishment of the monument. The money is to be distributed on the basis of the economic value of their fishing permits. If funds remain after the permits are bought out, “A future voluntary vessel and gear buyout may be developed once the permit compensation is complete,” says the final rule published in the Federal Register of September 15. The actual amount to be distributed is somewhat less: $197,500 was taken by the National Oceanic and Atmospheric Administration for “internal indirect costs,” while NMFS is paying $138,529 to the Pacific States Marine Fisheries Commission to administer the program.
Once the permit holder receives funds, the permit will immediately be invalidated – a condition that council staff found objectionable. “There were a few things we would have changed” in the compensation package, Finn told the council. In particular, she said, “I don’t think we would have agreed to instant withdrawal from the fishery upon compensation.”
Written comments that council executive director Kitty Simonds provided on the draft rule made the same point: “NMFS should not require participants in the compensation program to exit the NWHI fishery prior to June 15, 2001…. If the immediate exit provision is to be retained, the compensation packages should be directly increased to fully include the additional two years of foregone revenues,” she wrote.
NMFS responded by noting that the compensation a permit holder receives will, under the payout formula, already include payment for the revenues lost from the time of compensation to the closure of the fishery.
— Patricia Tummons
Volume 20, Number 6 December 2009