{"id":13448,"date":"2021-04-01T00:04:55","date_gmt":"2021-04-01T00:04:55","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=13448"},"modified":"2021-04-01T19:17:21","modified_gmt":"2021-04-01T19:17:21","slug":"are-pacific-marine-monuments-safe-now-maybe-not-chief-justice-roberts-suggests","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=13448","title":{"rendered":"Are Pacific Marine Monuments Safe Now? Maybe Not, Chief Justice Roberts Suggests"},"content":{"rendered":"\n
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The Laysan albatross known as Wisdom, pictured here on Midway Atoll with one of her chicks, is the world\u2019s oldest known banded wild bird. The Pacific Islands Fisheries Science Center has reported that, when they were still allowed to fish there, Hawai\u2018i longliners caught significantly more albatross inside the Papahanaumokuakea Marine National Monument expansion area than outside. USFWS<\/sub><\/figcaption><\/figure>\n\n\n\n

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\u2019s establishment of Hawai\u02bbi\u2019s Papahanaumokuakea monument in 2006.<\/p>\n\n\n\n

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\u2019s 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.<\/p>\n\n\n\n

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, \u201cwhile also allowing the regional fishery management council to make fishery-management decisions.\u201d<\/p>\n\n\n\n

Zinke noted that despite an apparent lack of adherence to the purpose of the Antiquities Act, \u201csome monuments reflect a long public debate process and are largely settled and strongly supported by the local community.\u201d<\/p>\n\n\n\n

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\u2019 boundaries and\/or fishing restrictions.<\/p>\n\n\n\n

To the council and its executive director Kitty Simonds, the best way to achieve the executive orders\u2019 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.<\/p>\n\n\n\n

In the end, though, despite Zinke\u2019s recommendations and Wespac\u2019s multiple pleas to remove the fishing bans in all four Pacific marine monuments, Trump took no action on them before leaving office.<\/p>\n\n\n\n

He did, however, lift the commercial fishing ban in the Northeast Canyons and Seamounts Marine National Monument in the Atlantic.<\/p>\n\n\n\n

\u2018How Far We Have Come\u2019<\/em><\/strong><\/p>\n\n\n\n

With Joe Biden now president, it remains to be seen whether the new administration will roll back any of the marine monuments\u2019 existing protections. Instead, on his first day in office, Biden signed an executive order that requires the Secretary of the Interior to review Trump\u2019s 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, \u201cto determine whether restoration of the monument boundaries and conditions that existed as of January 20, 2017, would be appropriate.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

On March 22, the high court unanimously agreed to not hear an appeal by the Massachusetts Lobstermen\u2019s 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.<\/p>\n\n\n\n

In his statement on the groups\u2019 petition for a writ of certiorari, Roberts explained that the Antiquities Act \u201coriginated as a response to widespread defacement of Pueblo ruins in the American Southwest” by pottery diggers. The act provided a “mechanism for the \u2018preservation of prehistoric antiquities in the United States,\u2019\u201d he wrote. In addition to objects of historic interest, the act was meant to protect those of scientific interest, as well.<\/p>\n\n\n\n

Roberts pointed out that under the act, the areas a president may protect as part of national monuments must \u201cbe confined to the smallest area compatible with the proper care and management of the objects to be protected.\u201d<\/p>\n\n\n\n

\u201cSomewhere along the line, however, this restriction has ceased to pose any meaningful restraint,\u201d Roberts wrote. \u201cA statute permitting the president in his sole discretion to designate as monuments \u2018landmarks,\u2019 \u2018structures,\u2019 and \u2018objects\u2019 \u2026 has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.<\/p>\n\n\n\n

\u201cThe 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 \u2018objects\u2019 to be \u2018protected\u2019 are the \u2018canyons and seamounts themselves,\u2019 along with \u2018the natural resources and ecosystems in and around them,\u2019\u201d he wrote.<\/p>\n\n\n\n

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Octopus in Physalia Seamount within the Northeast Canyons and Seamounts Marine National Monument. Credit: NOAA<\/sub><\/figcaption><\/figure>\n\n\n\n

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.<\/p>\n\n\n\n

Even so, Roberts wrote, \u201cWe have never considered how a monument of these proportions\u20143.2 million acres of submerged land\u2014can be justified under the Antiquities Act. And while we have suggested that an \u2018ecosystem\u2019 and \u2018submerged lands\u2019 can, under some circumstances, be protected under the Act, see Alaska v. United States<\/em>, 545 U. S. 75, 103 (2005), we have not explained how the Act\u2019s corresponding \u2018smallest area compatible\u2019 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\u2014especially given the myriad restrictions on public use this purely discretionary designation can serve to justify.\u201d<\/p>\n\n\n\n

Roberts noted that the petitioners in the Northeast Canyons case failed to suggest what the Act\u2019s \u201csmallest area\u201d clause means or provide any standard that might guide the court\u2019s review. Still, he continued, \u201cWe may be presented with other and better opportunities to consider this issue without the artificial constraint of the pleadings in this case.\u201d <\/p>\n\n\n\n

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\u2019s changes to the Northeast Canyons and Seamounts, Grand Staircase\u2013Escalante, and Bears Ears national monuments.<\/p>\n\n\n\n

\u2018Glimmer of Hope\u2019<\/em><\/strong><\/p>\n\n\n\n

University of Hawai\u02bbi professor Alison Rieser, an expert on ocean and coastal law, said she believes Roberts would have granted the petition. \u201cHe just couldn’t get three other justices to vote for review, and for good reason. \u2026 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,\u201d she said, referring to a July 2020 article published in Frontiers in Marine Science<\/em>, which details the scientific basis for the monument designation and its boundaries.<\/p>\n\n\n\n

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 \u201cCongress 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\u2014more than once\u2014taken action to limit the president\u2019s Antiquities Act authority in response to perceived overreach. But Congress has never imposed similar limitations on the president\u2019s authority to designate monuments in the ocean.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

At the Wespac meeting last month, council member John Gourley said Roberts’ statement gives a \u201cglimmer of hope\u201d 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.<\/p>\n\n\n\n

Gourley read parts of the statement aloud, adding, \u201cIt really hits home some of the long conversations we\u2019ve had over the years.\u201d<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

\u2014 Teresa Dawson<\/em><\/strong><\/p>\n\n\n\n

For Further Reading<\/em><\/strong><\/p>\n\n\n\n

These articles in past issues of Environment Hawai\u02bbi <\/em>discuss Wespac\u2019s concerns over the Pacific marine monuments:<\/p>\n\n\n\n