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09/6/2017

Trump’s monument review is as secretive as Obama’s designations

Trump’s monument review is as secretive as Obama’s designations

By Kara McKenna, counsel at Cause of Action Institute

Presidential use of the Antiquities Act is ripe for abuse, as major decisions impacting vast public lands, natural resources, property rights, livelihoods and private industry are left to the sole discretion of the president. After such a unilateral designation, the president does not need to substantiate his decision in any meaningful way, beyond the use of a few magic words on the face of the proclamation.

It seemed like a positive step when President Trump in April issued an executive order seeking public input for a review of national monument designations over the last two decades. But it now appears that any hope for additional transparency may have been premature. Read the full article at The Hill

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06/14/2017

Northeast Canyons and Seamounts Designation: Some Stakeholders Are More Equal Than Others

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) and the variety of statutory frameworks and federal government programs that are used to manage the jurisdictional waters of the United States. (here and here). We also shared a copy of the comment we submitted to the Department of the Interior in which we outlined our investigative activity relative to the Bears’ Ears National Monument. This week we review the procedural history of the designation of the Northeast Canyons and Seamounts Marine National Monument, also referred to here as the Atlantic Monument, which was made by President Obama on September 15, 2016 (“Proclamation”), and show that certain, privileged, non-governmental entities were granted access to detailed information on the forthcoming monument and allowed input into the designation, while other stakeholders—notably those with specific legal authority, such as Regional Fishery Councils—were denied input and access.

The Atlantic Monument includes the Oceanographer, Gilbert, and Lydonia canyons, which are located at the edge of the geological continental shelf, and the Bear, Physalia, Retriever, and Mytilus sea mounts, which are located farther offshore at the start of the New England Seamount chain.

The Proclamation provided the following justifications for the designation: (1) the historical value of the maritime trades, especially fishing, to the cultural roots of New England; (2) the abundance of deep sea corals, fish, whales, and other marine mammals; and (3) long-time scientific study of the area using research vessels, submarines, and remotely operated underwater vehicles for deep-sea expeditions.

The Proclamation purported to prohibit the following activities, effective immediately:

  • Oil, gas, minerals, or other energy exploration, development, or production;
  • Poisons, electrical charges, or explosives to collect or harvest a “monument resource;”[1]
  • Releasing an “introduced species;”[2]
  • Removing a “monument resource” except as provided under “Regulated Activities;”
  • Construction or damaging submerged lands (except for scientific instruments or submarine cables);
  • Commercial Fishing; and
  • Possessing commercial fishing gear unless stowed during “passage without interruption” through the monument.

In addition, the following activities are to be regulated:

  • Research and scientific exploration;
  • Education, Conservation, and Management;
  • Anchoring scientific instruments;
  • Recreational fishing;
  • Commercial fishing for red crab and American lobster for up to 7 years;
  • Sailing, and bird or mammal watching; and
  • Submarine cables.

Note that these restrictions do not apply to any person who is not a citizen, national, or resident alien of the United States, unless in accordance with international law. As we explained in our May 22, 2017 blog post, within the EEZ, in which the Atlantic Monument is located, the United States has only limited sovereign rights, and thus international law still applies, limiting the ability of an American President to extend prohibitions to non-Americans.

In light of the stated justification for the Atlantic Monument, it is curious that certain traditional, culturally-significant, and highly-regulated activities, such as commercial fishing, were prohibited; while others, such as recreational fishing, were to be regulated; and some, such as commercial fishing for red crab and American lobster, were granted a seven-year stay of execution—bearing in mind that none of these classifications or limitations even apply to non-Americans.[3]  These discrepancies, as well as peculiarities in the procedural history of the Atlantic Monument, were among the bases for a series of FOIA requests that CoA Institute submitted in October 2016, in which we requested records from NOAA and the Council on Environmental Quality (“CEQ”) relating (among other things) to the designation of the Atlantic Monument and to the justification for the unequal treatment of stakeholders and the opaque process surrounding the designation of the Atlantic Monument.  The submitted FOIA requests include the following:

To-date NOAA and CEQ have released only a portion of the requested documents. However, even the initial interim releases show that, despite claims that the Atlantic Monument is the product of “an extensive year-long public process,” the designation of the Atlantic Monument was a predetermined decision that allowed for limited public input to appease public backlash.

The following history, derived from the partial responses to CoA Institute’s FOIA requests and other publicly available documents, is illustrative:

In March 2015, the Conservation Law Foundation (“CLF”) and Natural Resources Defense Council (“NRDC”) published an Issue Brief that advocated for “permanent protection” of New England’s canyons and seamounts. By July 2015, NOAA personnel in the Fisheries Service were already discussing the details of which activities should be prohibited post-Proclamation, such as whether the Proclamation should include an exception to the prohibition on fishing for highly migratory species (“HMS”), such as tuna, swordfish, marlin, and a variety of sharks. Although the discussion confirmed that neither commercial nor recreational fishermen of HMS anchor their boats ; and, in fact, most vessels do not carry enough anchor line for the depths in the area, ultimately HMS commercial fishing was prohibited.

In August 2015, the Conservation Law Foundation forwarded to NOAA an invitation to an event scheduled for September 2, 2015 at the New England Aquarium regarding deep sea canyons and seamounts located off the coast of Cape Cod and expressing commitment to “real and significant conservation in New England and . . . ensuring the timely completion of a good and effective ocean plan—the first in the U.S.”  The message made no mention of the New England Regional Fishery Management Plan that had long been in place under the Magnuson-Stevens Act.

The following day, September 3, 2015, NOAA issued a broad invitation to participate in a Town Hall meeting scheduled for September 15, 2015—just 12 days after the announcement—to discuss “permanent protections” for three deep sea canyons and four seamounts off the coast of New England. The invitation did not mention designation of a National Monument nor that the meeting would be the only event at which to present feedback. It provided a deadline for submitting written comments to a special NOAA e-mail address, which was set for the same day as the Town Hall meeting. No proposal or details were included with the invitation.

It appears that certain privileged, non-governmental entities that had the inside track on the proposal, including the Pew Research Center and the Conservation Law Foundation, had more information about the proposal before the Town Hall meeting than NOAA was able, or willing, to make available to stakeholders. The lack of information available to local stakeholders hindered their ability to provide meaningful commentary.

NOAA, however, had prepared a briefing document as early as July 2015 that included much relevant information and identified the conflict between the monument proposal and the fishery management councils’ activities. The briefing document also “red flagged” the anticipated objections of various fishermen on the basis that their fishing was not harmful to the area. As of July 2015, the proposal allowed commercial pelagic fishing (i.e., fishing in the water column)—an activity that was ultimately forbidden.

Before the Town Hall meeting, NOAA was advised of specific shortcomings in the notice process that further compromised the ability of local stakeholders to provide meaningful input and that buttressed the impression that the entire process was undemocratic and designed to bypass the extensive multi-year effort to protect marine resources. For example:

  • In contrast to NOAA’s standard practice of sending email messages from “@noaa.gov,” the e-mail message announcing the Town Hall meeting was sent from news@meltwaterpress.com, which led recipients to fail to recognize that the message included an important announcement and increased the potential for the message to be caught in a spam-blocker;

  • In response to a request for information before the Town Hall meeting, the requester was told that no information beyond the press release was available and no additional briefings or public meetings were scheduled, in contrast to the typical process of holding 15-20 public hearings and providing information electronically.

….


  • However, consistent with the experience of other stakeholders, on-line research of the proposal led to the Conservation Law Center and PEW websites, where electronic petitions were available along with inaccurate and misleading information.

  • As a result of the patent deficiencies (whether by design or omission) in the public comment process, the writer requested from NOAA an extended comment period, additional public hearings, and detailed information on the specific proposed measures. It appears that no such opportunity for meaningful feedback was ever provided.

 

The lack of proper notice for the town hall meeting was not just a sticking point for fishermen who were unable to attend, but even created an impediment to attendance for NOAA personnel.

The lack of notice was a contentious issue at the Town Hall meeting, as was the Providence, Rhode Island location, which appeared to have been chosen to keep fishermen away.

By contrast, representatives of academia, Brown University and the University of Connecticut, and special interest groups, Pew and NRDC, remarked that they had already submitted written comments on the proposal. They, apparently, knew enough about the proposal before the meeting to draft comments and submit them ahead of time.

Others—notably fishermen and local businesses—were not privy to specifics of the proposal until they arrived at the Town Hall meeting, and, even then, were provided inadequate details.

The exclusion of the Fishery Management Council from meaningful input apparently was consistent with a desire by some to bypass the “too long” democratic process.

Comments by stakeholders with intimate knowledge of how the area is managed told a different story—the Lydonia and Oceanographer canyons were already closed to fishing gear . . .

. . . the Fishery Management Council process is based on science and abundant data . . .

. . . the Council process is rigorous. . .

. . .and the “pristine” condition of the areas shows that the areas have been well-managed.

Stakeholders who must actually live with the effects of the Atlantic Monument also commented that there are public impacts from the proposed monument—to jobs and other fishing areas that must be, and have not been, considered. As one commenter stated—there are lives at stake.

The full text of the statement of the New England Council Chairman, explaining the history of the Council’s actions, and the design of coral management zones, can be found here.

These spoken comments were consistent with written comments submitted immediately before or shortly after the Town Hall meeting.

See full text


See full text

See full text

Written comments provided after the hearing highlighted certain factual inaccuracies in the presentation in support of the monument, such as:

  • The claim that there was increased fishing pressure in the designation areas when, in fact, the number of boats actually fishing had fallen dramatically (by 2/3 or more);
  • The Annual Catch Limit is well below the Overfishing Limit;
  • The fishing methods described at the September 2015 Town Hall meeting do not resemble the methods actually used;
  • Sword fish and squid fishing gear does not come anywhere close to the bottom;
  • Thousands of square miles of New England waters have already been closed to fishing via democratic process—in contrast to the undemocratic process used to designate the monuments.

See here, here, and here

Written comments also reiterated the complaint that the process of designating the monument lacked transparency, including:

  • The lack of notice for the town hall meeting;
  • The two-minute limit on oral comments;
  • The lack of parameters (time frame, review process, etc.) for written comments;
  • The lack of ability of NOAA staff to answer questions;
  • The pervasive misrepresentation of existing environmental protections and conditions; and
  • The lack of specifics on the proposal—no boundaries, no regulatory provisions, no depth contours, and no evidence of need or benefit to closing the area.

See here, here, and here

Meanwhile, as the fishermen were begging for due process and the Council was pleading to be allowed to do its job, it appears that the Administration was continuing to work with certain, privileged, non-governmental entities toward announcing the monument designation at the 2015 Our Oceans Conference, scheduled to take place in Valparaiso, Chile or October 5-6, 2015. Notably, this plan was known among the privileged entities before the Town Hall Meeting, a fact that they took care to keep quiet.

See full text

The “potential collusion” of these outside interests in the apparently pre-ordained monument designation was of concern to the U.S. House of Representatives Committee on Natural Resources, which held an oversight hearing on the potential designation of marine national monuments on September 29, 2015—only 6 days before the Our Oceans announcement was to take place.

See full text

Throughout 2016, objections to establishing a marine monument in the Atlantic were made by stakeholders who had intimate knowledge of the area as well as their life’s work at risk. Like the earlier commenters, they objected to the lack of transparency, democratic process, accurate data, and coordination with existing—and effective—management plans.

See full text

See full text

See full text

These calls went unheeded and the Atlantic Monument was proclaimed on September 15, 2016. Nevertheless, and notwithstanding the initial plan to announce its designation at the Our Oceans Conference in October 2015, throughout 2016, there remained considerable confusion within NOAA as to what the monument would entail, including very basic questions such as:

the types of fisheries that are in the monument area;

See full text

whether fishing permits are required, the term of fishing permits, and the effect of the designation on existing permits;

See full text


See full text

whether conditions could be placed on permits by NOAA, or whether a rule-making would be required

See full text

Ultimately, they concluded that a rulemaking would be required:


See full text

The need for a rulemaking also raises the critical question of whether the Administration ever had the legal authority to implement a monument in the Atlantic Ocean in the first place. But, more on that later . . . Our series will continue next week with an analysis of the legal issues arising from the imposition of a Marine National Monument in an area that is already subject to a comprehensive regulatory scheme.

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] This term is not defined in the Proclamation.

[2] This term is not defined in the Proclamation.

[3] Citizen, national, or resident alien of the United States.

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06/7/2017

Antiquities Act Review – Bears Ears and Beyond

We recently began our series of blog posts examining the history, purpose, limitations, and the Trump administration’s review of the Antiquities Act of 1906, 54 U.S.C. §§ 320301 – 320303 (“Antiquities Act” or the “Act”). This week we discuss the status of President Trump’s Executive Order on the Review of Designations Under the Antiquities Act.

As discussed in our previous posts, 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 also is 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]

On April 26, 2017, President Trump signed the Executive Order on the Review of Designations Under the Antiquities Act (“Antiquactities Act E.O.”), which directs the Secretary of the Interior to review all national monuments created by the Antiquities Act since January 1, 1996 that measure more than 100,000 acres or lacked appropriate public input. In addition, review of some Marine National Monuments are the subject of section 4 of the April 28, 2017 Executive Order on Implementing an America-First Offshore Energy Strategy (“Offshore Energy E.O.”).

In conducting its review of these national monuments, the Department of Interior is seeking public comments related to the seven considerations set forth in the Antiquities Act E.O.: (1) whether the monument designations are limited to “the smallest area compatible with the proper care and management of the object to be protected”; (2) whether the designated lands are “historic landmarks, historic and prehistoric structures, [or] other objects of historic or scientific interest” within the meaning of the Act; (3) the impacts of designations on the use of Federal lands; (4) the impacts of designations on non-Federal inholdings or lands near the monument boundaries; (5) concerns of “State, tribal, and local governments affected by the designation”; (6) whether there are sufficient Federal resources to manage the designated lands; and (7) other factors deemed appropriate by the Secretary.

Comments related to the Bears Ears National Monument in Utah closed on May 26, 2017. Comments related to all other national monuments are open until July 10, 2017. Pursuant to the Antiquities Act E.O., the Secretary of the Interior must provide an interim report regarding Bears Ears by June 10, 2017 and a final report on all monuments under review by August 24, 2017. The Offshore Energy E.O. requires a final report from the Secretary of Commerce regarding certain Marine National Monuments by October 25, 2017.

Cause of Action Institute (“CoA Institute”) submitted comments regarding Bears Ear National Monument on May 26, 2107. Our comments, which can be read here focused on several key issues, such as the lack of transparency in the monument designation process and the lack of sufficient Federal resources to manage the designated lands.

Several days after submitting our comments, CoA Institute received the first installment, totaling some 1,300 records, in response to one of our two Freedom of Information Act (“FOIA”) requests seeking records related to Bears Ears National Monument. That FOIA request was based on conversations with local stakeholders and publicly available reports and sought, among other things, records relating to incidents of looting, vandalism, and damage to antiquities located on Bureau of Land Management-held (“BLM”) lands in San Juan County, Utah that ultimately were included as part of Bears Ears National Monument on December 28, 2016.

Several of the responsive records released to CoA Institute substantiate the concerns we raised in our May 26, 2017 comments. First, in regards to Federal resources to manage the designated lands, the records demonstrate that there are, at most, only two BLM rangers who patrol the entire million-plus acres of BLM-administered land in San Juan County. This is roughly the same number of BLM Rangers who patrol the approximately 2.5 million acres in Grand Staircase Escalante National Monument and the BLM Kanab Field Office.

Read the released emails here

Although Bears Ears also has a significant number of volunteers who act as site stewards, the released records show that patrolling these vast resources is complicated. For example, responding to incidents that occur at archaeological sites requires not just BLM Rangers, but also BLM archaeologists to assess damage and remediate as necessary. In some instances, Rangers and archaeologists can only access the damaged sites with the aid of climbing equipment. Because BLM does not have policies or certifications related to rock climbing or repelling and thus may not have qualified personnel on site, some of these investigations have been barred from proceeding. Resources to patrol and protect this area were and continue to be an issue, as stated by a BLM employee in response to a question assuming that monument designation would confer additional law enforcement resources: “Funding and resources are separate issues from land use designations. They don’t always go hand in hand.”

Read the released emails here

In our comments regarding Bears Ears, CoA Institute also highlighted the lack of transparency in the monument designation process and suggested several remedies for addressing transparency concerns moving forward, including releasing information regarding incidents of looting and vandalism of antiquities on the lands reserved as part of the monument. The documents released to us last week illustrate why this is necessary. In the months prior to the creation of the Bears Ears National Monument, there were conflicting reports regarding the number of incidents of looting and vandalism in the proposed monument area. Individuals on both sides of the monument advocacy efforts used these conflicting reports to their own ends, adding additional confusion to an already heated debate.

Read the released emails here

The confusion regarding incident reports was also apparent within the BLM itself—not because BLM did not have the data regarding the incidents, but rather because it did not have an efficient, timely reporting mechanism in place to make such information easily retrievable.

As the Secretary of the Interior continues his review of recent monument designations, CoA Institute will continue to examine and release records relevant to this effort as they are received.

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)

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05/23/2017

High Seas and Misdirection: The Antiquities Act is not Among the Statutory Schemes that Govern U.S. Internal Waters, Oceans, and Coasts (Part 2)

Yesterday we provided a synopsis of certain statutory and regulatory schemes that govern America’s coastal and internal waters and reviewed the definitions of the jurisdictional zones that apply to United States’ waters. Today we continue our discussion of how the various schemes apply in the jurisdictional zones.

SOURCE: U.S. Commission on Ocean Policy, 2004.

A full description of all programs that touch on the jurisdictional waters of the United States and the activities that take place thereon is beyond the scope of this analysis. However, the following programs should inform—and in some cases are legally necessary to—any change in status relating to United States’ coastal and internal waters.

Land and Water Management Laws

The Coastal Zone Management Act (“CZMA”) was enacted to “preserve, protect, develop, and where possible, to restore or enhance, the resources of the nation’s coastal zone for this and succeeding generations;” with the purpose, “to encourage and assist the states to exercise effectively their responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone, giving full consideration to ecological, cultural, historic, and esthetic values as well as the needs for compatible economic development.”

The CZMA is administered by the National Oceanic and Atmospheric Administration (“NOAA”) and thus falls under the jurisdiction of the Department of Commerce. Under the CZMA, states are incentivized to develop coastal management programs with the assurance that, with some exceptions, federal actions will be constrained to those that are consistent with state-developed and federally-approved coastal management programs (the “federal consistency” provision). More information about the CZMA may be found on NOAA’s website, and individual state coastal management programs may be accessed here. State coastal management programs can be quite extensive, addressing such diverse issues as seafloor and habitat mapping, flooding and erosion, lake access, education, beach management, seismic mapping, and protecting natural habitats and wildlife.

With the exception of Alaska, all 35 coastal and Great Lakes states and territories participate in the National Coastal Zone Management Program.

The Clean Water Act (“CWA”) was enacted to “restore and maintain the chemical, physical, and biological integrity of the Nation’s Waters.” The goals of the CWA were to make all waters safe for fish and people, and to eliminate the discharge of pollutants into the waters of the United States.[1] Amendments to the Act provide for estuary management and protection, with special programs authorized for the Chesapeake Bay, the Great Lakes, and Long Island Sound. The CWA is administered primarily by the Environmental Protection Agency (“EPA”), which has established a similar program for the Gulf of Mexico.[2] States that have a federally-approved coastal management program must develop and submit a coastal nonpoint[3] pollution control plan to NOAA and the EPA for approval, identifying land uses that contribute to coastal water quality degradation and critical coastal areas.[4]

The Submerged Lands Act (“SLA”) established in the states: “(1) title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop, and use the said lands and natural resources all in accordance with applicable State law be, and they are, subject to the provisions hereof, recognized, confirmed, established, and vested in and assigned to the respective States.”[5] Natural resources, for purposes of the SLA, include oil, gas, and other minerals; and fish, shellfish, sponges, kelp, and other marine life; but do not include the use of water for the production of power.[6]

The Outer Continental Shelf Lands Act (“OCSLA”) established federal jurisdiction over the submerged lands “lying seaward and outside of” lands subject to the Submerged Lands Act extending “of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” The Act purported to extend limited-purpose constitutional and political jurisdiction over the area:

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: Provided, however, That mineral leases on the outer Continental Shelf shall be maintained or issued only under the provisions of this subchapter.[7]

Under the Act, the Secretary of the Interior is authorized to develop oil, gas, and other mineral deposits via permitting and leasing; and is also charged with suspending or prohibiting such activity “if there is a threat of serious, irreparable, or immediate harm or damage to life (including fish and other aquatic life), to property, to any mineral deposits (in areas leased or not leased), or to the marine, coastal, or human environment.” Activity under this Act must be coordinated with the CZMA and requires the Secretary to coordinate with other agencies and the affected states.[8]

Fishery and Species Management Laws

In 1976, the Fishery Conversation and Management Act, now the Magnuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), extended exclusive U.S. fishery jurisdiction to 200 miles offshore, covering the area that later became the EEZ.[9] The Magnuson-Stevens Act established eight regional fishery management councils.

The Regional Councils are composed of members representing commercial and recreational fishing, environmental, and academic interests, as well as state and federal government. Regional Councils are required to:

  • Develop and amend Fishery Management Plans
  • Convene committees and advisory panels and conduct public meetings
  • Develop research priorities in conjunction with a Scientific and Statistical Committee
  • Select fishery management options
  • Set annual catch limits based on best available science
  • Develop and implement rebuilding plans

The Magnuson-Stevens Act has been amended by the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006, which were intended to strengthen sustainable fish stock requirements; promote market-based management strategies, such as catch shares; strengthen the role of science through peer review; and enhance international fisheries sustainability. Catch shares are exclusive allocations of fishing rights that are provided by the fishery management council and are transferable in accordance with the policy and criteria established by the controlling fishery management council.

Once a Fishery Management Plan has been written to include the ten national standards and research about the fishery, it must be submitted to the Secretary of Commerce for approval.[10] The Secretary also has independent authority to prepare a Fishery Management Plan for a region.[11]

The focus of the Magnuson-Stevens Act is on maintaining sustainable fisheries. Accordingly, the Magnuson-Stevens Fishery Act is administered by the National Marine Fisheries Service within the Department of Commerce. Additional information on the Magnuson-Stevens Act may be found here.

The Marine Mammal Protection Act (“MMPA”) differs from the Magnuson-Stevens Act in that it focuses on the health of marine mammal populations rather than on fishing yield. Subject to a few exceptions, the MMPA places a moratorium on the taking and importation of marine mammals and marine mammal products.[12] The MMPA is administered by two agencies—the National Marine Fisheries Service and the U.S. Fish and Wildlife Service within the Department of the Interior. The MMPA does not impose management responsibility on states or localities; however, a state may enter into a cooperative agreement for delegation of the administration and enforcement of the MMPA.[13]

The Endangered Species Act (“ESA”) also focuses on conservation of species and, like the MMPA, is administered by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service.[14] The ESA does not mandate any permanent management structure that involves the states. However, Section 6 of the ESA does provide a mechanism for cooperation between the Fisheries Service and States in which the Fisheries Service is authorized to enter into agreements with any state that establishes and maintains an “adequate and active” program for the conservation of endangered and threatened species. Once a State enters into such an agreement, the Fisheries Service is authorized to assist in, and provide Federal funding for, implementation of the State’s conservation program.

The National Marine Fisheries Service also has obligations under the Fish and Wildlife Coordination Act and National Environmental Policy Act to consult, coordinate, and implement regulations regarding essential fish habitat with other federal agencies.[15]

These statutory frameworks are intended to work together in managing and protecting the coastal waters of the United States, in light of the interests of the coastal states, the preservation of marine life, natural resource development, and the interests of stakeholders such as fishermen, scientists, visitors, and foreign entities engaged in traditional uses of the seas (such as the right of safe passage). To achieve that purpose, coordination and accommodation is necessary to develop the comprehensive management plans required by, for example, the Coastal Zone Management Act and the Magnuson-Stevens Fishery Conservation and Management Act. Notably, this extensive coordination and balancing of local, federal, and international interests does not contemplate, and can be disrupted by, the sudden withdrawal of territory from the statutory schemes under the Antiquities Act; nor do these Acts include specific provisions for addressing lost rights; displaced scientific, commercial, or environmental planning; or conflict arising from a sudden change in jurisdiction between agencies.

Our series will continue next week with an update on the status of President Trump’s April 26 Antiquities Act Executive Order.

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] 33 U.S.C. §1251.

[2] 40 C.F.R. 230.

[3] Nonpoint pollution refers to runoff from rain or snow that picks up and carries away natural and human-made pollutants into coastal and internal waters

[4] 16 U.S.C. §1455b.

[5] 43 U.S.C. §§1311.

[6] 43 U.S.C. §1301.

[7] 43 U.S.C. §1333(a).

[8] 43 U.S.C. §1334.

[9] 16 U.S.C. § 1801-1882.

[10] 16 U.S.C. § 1854(a).

[11] 16 U.S.C. § 1854(c).

[12] 16 U.S.C. § 1371.

[13] 16 U.S.C. §1379(a).

[14] 16 U.S.C § 1531 et seq.

[15] Review of U.S. Ocean and Coastal Law, Appendix 6, U.S. Commission on Ocean Policy, 2004, at 46.

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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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05/16/2017

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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