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05/22/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 1)

We began our series of blog posts by examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”) (here and here), followed by a discussion of how the Act fits within the variety of other frameworks for protecting and using public lands (here and here). This week we explore the variety of statutory frameworks and federal government programs that are used to manage the jurisdictional waters of the United States.

There are numerous programs and statutory frameworks that relate to the management and conservation of water, water-based activities, natural resources, and living marine resources within the United States’ internal and the coastal waters, including: the Coastal Zone Management Act (“CZMA”); the Magnuson-Stevens Fishery Act (“Magnuson-Stevens”); the Marine Mammal Protection Act (“MMPA”); the Endangered Species Act (“ESA”); the Clean Water Act (“CWA”); the Submerged Lands Act (“SLA”); and the Outer Continental Shelf Lands Act (“OCSLA”).[1] The Antiquities Act of 1906 has not traditionally played a role within this collection for reasons that will be explored in a later post.

The comprehensive statutory and regulatory schemes governing America’s coastal and internal waters often turn on exacting definitions of jurisdictional zones that apply to those waters, a matter complicated by the fact that the zones sometimes overlap—for example, the Contiguous Zone is wholly contained within the Exclusive Economic Zone (“EEZ”). Before examining the major programs that apply to United States’ coastal and internal waters, an overview of these jurisdictional zones is in order.

The jurisdictional zones, which include varying degrees of sovereignty, are measured relative to the baseline, which, in the United States, is defined as the low-water line along the coast as marked on the NOAA nautical charts in accordance with the articles of the Law of the Sea. Bodies of water that are inland from the baseline, such as bays, estuaries, rivers, and lakes, are considered internal waters and are subject to national sovereignty.

SOURCE: National Oceanographic and Atmospheric Administration (“NOAA”)

The zone closest to shore is the Territorial Sea, which measures from 0 to 12 nautical miles from the baseline. Within its territorial sea, the United States has sovereignty over the air space, water column, seabed, and subsoil.[2] Under the Submerged Lands Act of 1953, within the United States’ territorial sea, most coastal states have jurisdiction over the coast and the submerged lands and waters extending up to 3 nautical miles from their coastlines. Texas, Puerto Rico, and the Gulf Coast side of Florida differ from this standard, having jurisdiction over the submerged lands and waters extending 9 nautical miles from their coastlines.[3]

Generally, land above the mean hightide line is held in private ownership; while the land below the hightide line, including the tidewaters, is held in public trust by the state (although this varies by state). The federal government has jurisdiction over the balance of the Territorial Sea (beyond the 3 or 9-mile area), in addition to limited authority within the state’s jurisdictional waters. Under the SLA, the federal government has the right, authority, and jurisdiction to regulate commerce, navigation, power generation (from water), national defense, and international affairs throughout the state waters.[4]

International law recognizes a Contiguous Zone that stretches from 12 to 24 nautical miles from the baseline.[5] Within the contiguous zone the United States can enforce its customs, fiscal, immigration, and sanitary laws against foreign flag vessels.

The EEZ extends from 12 to 200 nautical miles from baseline.[6] Within the EEZ, the United States has sovereign rights for the purposes of exploring, exploiting, conserving, and managing the natural resources, both living and non-living, of the ocean waters, the seabed, and subsoil, and with regard to other economic or explorative activities, such as production of energy (wind, water, etc.), as well as jurisdiction over artificial islands or other structures and protection and preservation of the marine environment. President Reagan’s Proclamation of the EEZ stated that, “the Exclusive Economic Zone remains an area beyond the territory and territorial seas of the United States in which all States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and pipelines, and other internationally lawful uses of the sea.” The EEZ has thus not been incorporated into the territory of the United States.

The continental shelf, under international law (UNCLOS), generally refers to the seafloor and subsoil (not the water column) beyond the territorial sea to the outer edge of the continental margin (including the shelf, the slope, and the rise) up to 200 miles from the baseline. It is similar in lateral extent to the EEZ but does not include the water column.[7] The United States, however, is not a party to UNCLOS and has separately declared jurisdiction over the natural resources of the subsoil and seabed of the continental shelf via the Truman Proclamation, as well as the right to free and unimpeded navigation upon the waters above the continental shelf. The essence of the Truman Proclamation was codified in the Outer Continental Shelf Lands Act.

The high seas are the areas of ocean that are beyond national jurisdiction, including the water column. Traditional freedoms on the high seas that apply to all nations include freedom of: surface and submerged navigation; flight; fishing; laying of cables and pipelines; scientific research; and the construction of artificial islands (and other structures).

Tomorrow we will address a variety of federal statutory frameworks that are used to manage and protect the jurisdictional waters of the United States.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

[1] There are additional programs for protecting and using offshore federal waters, but the array is too extensive to cover here. Readers are directed to the Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, for a more comprehensive review.

[2] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 5;  United Nations Convention on the Law of the Sea, Article 2 et seq. [hereinafter “UNCLOS”].

[3] See 43 U.S.C. § 1301(b).

[4] 43 U.S.C. §§1301(e), 1311(d), and 1314(e).

[5] Proclamation No. 7219, 64 Fed Reg. 48,701 (Sept. 8, 1999); see also UNCLOS Article 33.

[6] Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983); see also UNCLOS Article 55 et seq.

[7] UNCLOS Article 76 et seq.

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05/19/2017

Court of Appeals Rules Vehicle Tech Company Has Right to Pursue Relief After Unfair Treatment by DOE on Renewable Loans

Washington, D.C. – The U.S. Court of Appeals for the District of Columbia today reversed the District Court’s ruling, siding with Cause of Action Institute’s (CoA Institute) client, Limnia Inc., an advanced vehicle technology company that alleged it was unfairly passed over for a government-backed loan and loan guarantee through the Department of Energy’s (“DOE”) politically-driven  programs.

CoA Institute President and CEO John Vecchione: “We are very gratified for the Court’s decision. The Circuit saw things our client’s way. We look forward to further advancing this case upon remand. But this is an important precedent laying out the parameters of voluntary remand to an agency.”

CoA Institute filed a lawsuit in 2013 on behalf of Limnia Inc. after the Department of Energy (“DOE”) failed to give the company fair treatment and the honest opportunity to compete for a government-backed loan under the agency’s controversial loan guarantee program to build advanced technology vehicles and components.

In 2008 and 2009, Limnia submitted two loan applications for $15 million in funding through DOE’s Advanced Technology Vehicles Manufacturing (“ATVM”) program. Limnia specializes in the production of battery systems for electric cars and applied for funding to develop a new advanced vehicle energy storage system. The DOE rejected both of Limnia’s applications.

Limnia sued DOE in the District Court alleging that the rejection of its applications was unlawful under the Administrative Procedure Act. In its complaint, Limnia argued it was passed over in favor of politically-favored competitors, such as Tesla Motors Inc., which had close connections to the Obama administration. Tesla received hundreds of millions in loans from the ATVM in early 2010.

Before the District Court could decide Limnia’s case on the merits, however, DOE requested that the case be remanded back to the agency. The District Court granted DOE’s request, returning Limnia’s case to the agency and closing Limnia’s judicial action. In today’s opinion, the Court of Appeals found that the District Court’s decision functioned as a dismissal of Limnia’s claims and authorized further judicial proceedings.

Limnia Inc. Chairman and Vice President of Product Innovation Scott Douglas Redmond: “We fought this fight on behalf of everyone who is sick of cronyism and corruption in Washington DC and tired of having their tax dollars used against them by corrupt political insiders. This is part one of a victory, not only for our team, but for the average citizen who doesn’t want their tax dollars going to politically connected projects.”

The full opinion is available here
Visit our blog for analysis of the opinion and more information about the case here

For information regarding this press release, please contact Zachary Kurz, Director of Communications: zachary.kurz@causeofaction.org

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05/19/2017

D.C. Circuit Rules Department of Energy May Not Use “Voluntary” Remand to Evade Judicial Review

In a victory for Cause of Action Institute’s client Limnia, Inc., the Court of Appeals for the District of Columbia Circuit ruled today that a district court erred in allowing the Department of Energy (“DOE”) to use a so-called “voluntary” remand to evade judicial review of its denial of Limnia applications for a renewable energy loan and loan guarantee.

The agency attempted to escape review of its actions after Limnia had prevailed on a motion to dismiss its Administrative Procedure Act (“APA”) claim that DOE arbitrarily and capriciously rejected its applications because of political favoritism.  DOE sought a “voluntary” remand to send the case back to the agency, but instead of seeking remand to reconsider its initial decision to deny Limnia’s applications, DOE required (and the district court agreed) that Limnia must submit brand new applications and pay significantly higher application fees.  This was the agency’s downfall.

The Court of Appeals made clear that “a voluntary remand request made in response to a party’s APA challenge may be granted only when the agency intends to take further action with respect to the original agency decision on review.  Otherwise, a remand may instead function, as it did in this case, as a dismissal of a party’s claims.”

Because DOE refused to reconsider the original decision, the district court’s decision to “close the judicial action left Limnia stuck between a remand and a hard place: Without any means – judicial or administrative – to obtain review of the Department’s 2009 application decisions . . . .  As a result, the District Court’s voluntary remand order was a ‘remand’ in name only.  Limnia’s position was the same as if its case had been dismissed on the merits.”

The decision also addressed whether the district court’s remand order was a final appealable order.  The Court of Appeals held that it was because it marked the end of the district court’s consideration of the case and because Limnia would be unable to seek review of the denied applications if the remand were permitted.  See pages 9–12.

Limnia also had asked the Court of Appeals to clarify the standard of judicial review for district court grants of contested remand motions.  The parties agreed that the standard should be for an abuse of discretion, but the Court of Appeals had not previously ruled on that question.  In a footnote, the Court said that, “[e]ven assuming that the standard of review is abuse of discretion rather than de novo, a question we need not decide, we agree with Limnia that the District Court’s decision must be reversed.”  Although this does not definitively resolve the question, the Court effective said that even under the more lenient abuse-of-discretion standard, the district court erred.  That is, the question presented was not close enough that the district court would have been affirmed under abuse-of-discretion review but reversed if the Court of Appeals considered the issue de novo.

The case now returns to the district court for further proceedings.

The Court’s decision continues CoA Institute’s string of victories on important administrative law issues in front of the D.C. Circuit.  Other significant wins include:

CoA Institute President and CEO John Vecchione argued the case; on brief with him were Josh Schopf and James Valvo.

James Valvo is Counsel & Senior Policy Advisor at Cause of Action Institute and you can follow him on Twitter @JamesValvo.

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05/18/2017

Cause of Action Institute Investigates Possible DOJ Involvement with Congressional Frustration of the FOIA

Cause of Action Institute (“CoA Institute”) filed a Freedom of Information Act (“FOIA”) request with the Department of Justice (“DOJ”) today in response to recent reports that Representative Jeb Hensarling, Chairman of the House Committee on Financial Services, directed the Department of the Treasury and at least eleven other agencies to treat all records exchanged with the Committee as “congressional records” not subject to the FOIA.

CoA Institute’s request is narrowly tailored to uncover records that could reveal whether the DOJ’s Office of Information Policy—which oversees government-wide compliance with and policy concerning the FOIA—and Office of Legislative Affairs were consulted by Chairman Hensarling, or others, prior to the release of the controversial FOIA directive. The request also seeks records concerning possible White House involvement and whether agencies sought the DOJ’s advice before responding to Chairman Hensarling.

Federal law requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA. Chairman Hensarling’s directive is ineffective, in that regard.  As I have argued elsewhere, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not, by itself, render it a “congressional record.” And, as set forth in a coalition letter joined by CoA Institute, ignoring this well-established standard would “improperly restrict the ability of the public to use FOIA” and impede transparency and good government.

Ryan Mulvey is Counsel at Cause of Action Institute

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05/17/2017

FTC vs. D-Link Systems: What They’re Saying

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05/16/2017

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 2)

We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). Today we continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

In contrast to the Act’s ambiguous status, as discussed yesterday, the land management plans that arise from statutory schemes, and which are managed by the administrative agencies, are both comprehensive and detailed. The United States federal government owns approximately 640 million acres of land.[1] Of that, just over 610 million acres, or 95% of federally owned lands, are under the control of one of the four main federal land management agencies: The Bureau of Land Management (“BLM”), the Fish and Wildlife Service, the National Park Service, or, the Forest Service. The first three of these agencies are part of the Department of Interior (“DOI”), while the last is part of the Department of Agriculture. Federal public lands are administered subject to “a myriad of individual agency mandates to manage particular lands and particular resources” overlapped by “general environmental statutes.”[2] In addition, these agencies hold full or co-management responsibilities for all the national monuments.

The map below shows the extent of federally held lands in the United States:

Source: U.S. Geological Survey

Established in 1905, the Forest Service is the oldest of the four major federal land management agencies, and the only one to officially predate the passage of the Antiquities Act. Its mission is “to sustain the health, diversity, and productivity of the Nation’s forests and grasslands to meet the needs of present and future generations.” The National Park Service followed over a decade later in 1916 and has a dual mission to preserve natural and cultural resources and provide such for the enjoyment of the public. The BLM, founded in 1946, is charged with the “stewardship of our public lands” and its management of such lands is “based upon the principles of multiple use and sustained yield of our Nation’s resources within the framework of environmental responsibility and scientific technology.” In 1966, Fish & Wildlife was the last of these agencies to be established and was tasked with “working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people.”

Read together, the missions of these federal public lands management agencies are to work collaboratively with numerous stakeholders to conserve and protect the nation’s natural and cultural resources with an eye towards multiple use and sustainable processes, as well as public access. The Antiquities Act is at odds with these major public lands management agencies to the extent that designations are made at the sole discretion of the President without consideration of existing land management, historic preservation, and/or environmental protection plans, and without any need for public input.

In addition to the laws providing for historic preservation, there are no less than twenty federal laws providing for the designation, protection, and management of environmentally sensitive areas located on public lands.[3] Many of those laws, such as the Federal Land Policy and Management Act of 1976 (“FLPMA”) and the National Environmental Policy Act (“NEPA”), require both public input and environmental assessments as part of their planning processes, which the Antiquities Act does not.

Although NEPA and FLPMA may be included in the final management plans for individual monuments, there is no affirmative requirement under the Antiquities Act to provide for environmental protections on the declared parcels. Curiously, some proponents of using the Antiquities Act have supported this aspect of the law because, in their view, bypassing congressional consensus or environmental review is a quicker and easier way to gain land protections. This perceived expediency and ease of using the Antiquities Act is no replacement for open and transparent discourse, particularly considering existing comprehensive historic preservation, land management, and environmental statutory and regulatory schemes that have established mechanisms for public and congressional oversight and input.

Given the hybrid nature the Antiquities Act and the sometimes arbitrary nature of its use, any reforms, if made, should consider existing statutory and regulatory frameworks for historic preservation, public lands management, and environmental protection, as well as methods for strengthening transparency and government accountability in decision-making.

Our series will continue next week with an overview of the environmental and fishery management laws that relate to marine or other water-based federal territories.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

 

a[1] Cong. Research Serv., Federal Land Ownership: Overview and Data (Mar. 3, 2017).

[2] Marla Mansfield, A Primer of Public Land Law, 68 Wash. L. Rev. 801, 802 (1993).

[3] See e.g., Organic Act of 1897; Transfer Act of 1905; National Park Service Organic Act; Fish and Wildlife Act of 1956; Archaeological Recovery Act of 1960; Multiple-Use Sustained-Yield Act of 1960; Wilderness Act of 1964; National Wildlife Refuge System Administration Act of 1966; The National Historic Preservation Act; Wild and Scenic Rivers Act; National Trails System Act of 1968; Mining and Minerals Policy Act of 1970; Endangered Species Act of 1973; The Wild and Free-Roaming Horses and Burros Act of 1971; National Forest Management Act of 1977; Surface Mining Control and Reclamation Act of 1977; Archaeological Resources Protection Act of 1979; Fish and Wildlife Conservation Act of 1980; Federal Cave Resources Protection Act of 1988; National Landscape Conservation System.

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05/15/2017

What is the Antiquities Act? Short Answer: Depends Who You Ask (Part 1)

We recently began our series of blog posts examining the history, purpose, and limitations of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss how the Act fits within the variety of other frameworks for protecting and using public lands. So what is the Antiquities Act?

As discussed in our previous posts (here and here), the Antiquities Act permits a President to proclaim “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest” as national monuments. To protect these objects, the President is also permitted to “reserve parcels of land as part of the national monument” subject to the limitation that “the parcels are confined to the smallest area compatible with proper care and management of the objects to be protected.[1]

These two limitations on designating monuments are designed to reinforce each other. First, the land parcels must encompass “historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest.” This limitation makes sense considering the impetus for the law—the desire to protect Native American artifacts from being pillaged from federal lands and a method for quickly withdrawing such “land[s] from the public domain to preserve archaeological sites.”[2] Second, the parcel must be confined to the smallest area compatible with this purpose—a limitation that only makes sense relative to objects that require “proper care and management . . . to be protected.”

By recent standards, the first national monuments declared under the Antiquities Act were small. Thirty-seven of the first forty declared national monuments measured less than 100,000 acres in total; each monument averaged just 5,350 acres. And the other three? Two of those national monuments were incorporated into Grand Canyon National Park and the third, Mount Olympus, is now part of Olympic National Park.

Despite the modest size of the early national monuments, it only took a little over a decade before the first million-acre-plus monument was declared, Katmai National Monument, which was proclaimed to “preserve an area that is of significant importance in the study of volcanism.”[3]  Like the Grand Canyon and Mount Olympus designations before it, the Katmai declaration offers a small but helpful case study of large-scale monument declarations.

In 1912, Mount Novarupta in Alaska erupted, causing the most powerful volcanic eruption of the 20th century (nearly thirty times more powerful than Mount St. Helens) and devastating the surrounding landscape. In the following years, explorers from the National Geographic Society conducted several expeditions into the remote region. As described by one of the explorers, Robert Griggs, “[t]he whole valley as far as the eye could reach was full of hundreds, no thousands— literally, tens of thousands— of smokes curling up from its fissured floor.” After his exploration of the region, Griggs, along with the National Geographic Society, lead the campaign to get the Katmai region made into a national park.[4]

National Park Service officials, however, worried that the creation of a new national park in Alaska would burn what limited good will the agency had with Congress.[5] Park Service officials informed the Society that the only possible protection for Katmai would be through the Antiquities Act.[6] At the time, the National Geographic Society proponents were worried about whether an Antiquities Act declaration could cover such a large area but were convinced by Park Service officials that it was the preferred method.[7] The declared monument “embraced little more than the area of active volcanic peaks surrounding Mount Katmai, along with the Valley of Ten Thousand Smokes and most of Iliuk Arm,”—all identifiable features of established scientific value.[8] Nearly sixty years after its declaration, this large monument was established as a National Park and Preserve by Congress.

The growth in the size and scale of national monuments, and the routine re-designation of large-scale monuments as National Parks, highlight a key issue in the discussion regarding recent use, and possible reform, of the Antiquities Act—namely what type of law is it? Is it an historic preservation law? A public lands management law? An environmental law? Or a little of each? The answer depends on whom you ask. Each alternative has merits and flaws; and therein, we believe, lies the wellspring of debate over the proper purpose of the Antiquities Act.

For example, there is some basis for categorizing the Antiquities Act as an historic preservation program—or at least for arguing that Congress views it as such. In December 2014, Congress passed Pub. L. 113-287 enacting title 54, United States Code, “National Park Service and Related Programs”, as positive law. Although nothing in Pub. L. 113-287 “created new law or changed the meaning or effect of existing law,” it did recodify the Antiquities Act into “National Preservation Programs” alongside historic preservation laws. This arguably leads to a presumption that the Antiquities Act is an historic preservation law.

However, many groups argue that the Antiquities Act is an environmental law, particularly because of its recent stated use as a tool to curb climate change through prohibitions in proclamations barring new oil and gas leasing, and/or mining on monument lands.

In application, the Antiquities Act is also a public lands management law, as declarations of new national monuments have significant impacts on existing public lands management plans.[9]

We will continue discussing how the Act fits within the variety of other frameworks for protecting and using public lands tomorrow.

Any questions, commentary, or criticisms? Please e-mail us at kara.mckenna@causeofaction.org and/or cynthia.crawford@causeofaction.org

Cynthia F. Crawford is a Senior Counsel at Cause of Action Institute.
Kara E. McKenna is a Counsel at Cause of Action Institute. You can follow her on Twitter @Kara_McK

 

[1] 54 U.S.C. § 320301 (2014).

[2] See Eric C. Rusnack, The Straw that Broke the Camel’s Back, 64 Ohio State Law Journal 669, 674 n.23 (2003).

[3] Nat’l Park Serv.,U.S. Presidents and Katmai, https://www.nps.gov/katm/blogs/u-s-presidents-and-katmai.htm (Feb. 14, 2016); Proclamation No. 1487, 83 Stat. 926 (Jan. 20, 1969).

[4] Frank B. Norris, Isolated Paradise: An Administrative History of the Katmai and Aniakchak National Park Units ch. 2 (1996).

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] See generally U.S. Dep’t of Ag., San Gabriel Mountains National Monument Management Plan DRAFT Environmental Assessment (Aug. 2016).

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