The Washington Post’s leak of Interior Dept. Secretary Zinke’s preliminary report to Trump revealed recommendations to reduce size and change management of several National Monuments, re-opening them to commercial fishing, grazing, logging, etc. This is the first punch of a two fisted attack Trump launched against National Monuments and Sanctuaries last spring.
The other punch was Trump’s directive to NOAA under the Dept. of Commerce to review all National Marine Sanctuaries and Monuments specifically to open them to oil and gas extraction. The public comment period on NOAA’s review ended August 15th with results not yet released—they are expected this coming month.
Each of these executive ordered reviews endangers Marine Monuments and Sanctuaries in different ways and must be challenged with differing strategies.
Zinke’s report is the result of Executive Order 13792 to the Dept. of the Interior to examine National Monuments for overstepping the Antiquities Act of 1906.
The Antiquity Act gives Presidents broad powers to establish National Monuments and to determine both their purpose and size for the “protection of objects of historic and scientific interest”. The Supreme Court has repeatedly upheld these broad powers against legal challenges by commercial interests. Any actions Trump takes based on Secretary Zinke’s recommendations will likely face multiple legal challenges and may ultimately be decided by the Supreme Court. This does not make the recommendations less alarming. There is a lot at stake in each Monument.
The Interior report targets three National Marine Monuments: The Pacific Remote Islands (PRI), Rose Atoll, both in the mid and far Pacific and the Northeast Canyons and Seamounts (NCS) in the Atlantic. It recommends reducing size and opening them to unfettered commercial fishing and other commercial interests.
Interior’s legal stance is that these Monuments’ sizes don’t meet the Act’s language that they be “confined to the smallest area compatible with proper care and management of the objects to be protected.” It also argues that some objects to be protected are not clearly defined in the proclamations that established them, and cites “geographic areas” and “ecosystems’” as poorly defined objects. Each Marine Monument under attack is smaller than originally proposed and the ecosystems to be protected are defined in detail in each declaration.
The declarations establishing these Monuments made extensive use of government, scientific and stakeholder expertise to choose and document the specific attributes of the ecosystems and geographic areas to be protected as well as why and how those protections should be managed.
MNMs protect extraordinary habitat in both the Atlantic and Pacific oceans. The Northeast Canyons and Seamounts’ (NCS) 4,913 square miles is the only Marine Monument in the US Atlantic. Its size was reduced by over 20% from the original proposal to meet the “smallest area” requirement of the Antiquities Act. It protects the only seamounts in the US Atlantic plus 3 canyons deeper than the Grand Canyon. It is home to deep cold-water corals found nowhere else, and vital feeding grounds for whales and turtles, including the endangered right whale and ancient leather back turtle, as well as for many other species.
Over the past two centuries the fishing industry in the North American Atlantic has collapsed more than once due to overfishing and habitat destruction. Evidence shows no-take zones benefit fisheries by replenishing habitat and the species that depend on it. Still, the fishing industry fights any loss of control over these waters even though Atlantic fisheries have not been managed sustainably or responsibly.
In a beautiful blog on the creation of the NSC MNM, EarthJustice attorney Roger Fleming says, "There is no question that President Obama met all legal requirements in carefully designing this monument to protect its rare deep-sea canyons and seamounts, and that he appropriately exercised the authority provided to him by Congress to protect and preserve this national treasure for generations to come.”
President George W. Bush created the Rose Atoll and Pacific Remote Islands (PRI) Marine National Monuments in 2009. President Obama expanded the PRI in 2014, adding less than 60% of the area he first proposed. This cooperation between two presidents continued the history of bipartisan support for National Monuments.
They contain emergent and submerged lands, reefs, atolls and shallow waters that are safe haven to millions of birds and marine life who come to feed, rest, mate and give life to their offspring. Dr. Sylvia Earl calls this chain of tiny dots in the massive Pacific Ocean “hope spots” for ocean health. Their size and the complexity of the ecosystems protected are a vital hedge against global warming. Though barely 3% of oceans protected are not nearly enough, Trump begrudges the planet even that.
Enric Sala, National Geographic explorer-in-residence, says reopening protected areas to commercial fishing “hampers the ability to restore fisheries—one reason they were established…Tuna grow and reproduce more when they have a refuge, thus helping to replenish fisheries around no-take areas. Marine monuments work not only for marine life, but also help fishing. Opening them up to fishing is like spending away the principal of their investment account.”
US defense also has vested interests in mid and far western Pacific protected areas. Dr. Cooper, a maritime defense strategy expert, says “Marine National Monuments have as much potential as strategic national security assets as environmental ones, and almost certainly more than as commercialized ocean. Stripped of added federal protections and opened to “traditional activities” or “commercial fishing”, the vast Pacific Monuments will be open to easy exploitation by China’s far-ranging and semi-militarized commercial fishing fleet…sowing sensors, surveying and ultimately wresting away control of areas that may prove critical to the long-term (US) security.”
President George W. Bush specifically mentioned strategic defense in presenting his four mid and far Pacific Marine National Monuments. Yet all MNM declarations specifically do not limit military activity nor hold the military liable for damages incidental to military activity. This is of concern in terms of environmental goals, yet likely strategic defense carried major weight in these Monuments being created at all. How defense interests will fight Trump’s attacks is yet to be seen.
Those desiring to protect the rich, complex and sensitive ecosystems of the Marine National Monuments, may find it necessary to defend the Antiquities Act itself, as well as demonstrate how the declarations creating the Monuments are exactly in line with the language of the Act and with established legal precedents. Some see Trump’s attack as not only against National Monuments, but also against previous Presidents of both parties, the Antiquities Act itself, and even the rule of law.
Photo credit Canyons Expeditions Science Team.
