Coastal Conservation Association (CCA)

Capitol Ideas

National Parks in the Oceans?

By Matthew Paxton
CCA Federal Lobbyist
TIDE
Jul/Aug 2008

More than a century ago, on June 8, 1906, President Theodore Roosevelt signed into law the Antiquities Act (16 U.S.C. 431-433). The impetus for the law was to protect Indian artifacts and prehistoric ruins from the plunder and destruction in the American Southwest that took place over the second half of the 19^th century. It was the first law to recognize the importance of historical sites and structures on public lands and preserve these areas for future archeological study.

So why should concerned recreational anglers care about a 100-year-old law that pertains to archeological digs and securing permits for the examination of ruins on public lands? Because the Antiquities Act also allows the President, at his discretion, to proclaim historic landmarks, structures and other objects to be national monuments.

Over the past century, the Act has been used to proclaim 123 national monuments on land. However, in 2006 the law was used to create the largest marine protected area in the world when President Bush proclaimed the Northwestern Hawaiian Islands Marine National Monument. There is a similar proposal now being discussed within the Bush Administration to designate a chain of marine monuments forming a ring around the entire Gulf of Mexico to permanently lock up the ocean as a national park – the proposal is being called “Islands in the Stream.”

The problem is the Antiquities Act is sparse on process. In fact, it has none. The law in its entirety is roughly a page long and has four sections, one of which provides absolute discretion for the President to establish national monuments and, most recently, marine national monuments. There is no Congressional oversight, no opportunity for public comment or for review of the proposed monument designation. Once the monument has been established it is extremely rare for it to ever be overturned. Indeed, the Supreme Court has determined that public process or judicial review does not apply to Presidential proclamations under the Antiquities Act because the President is not an “agency” for purposes of the Administrative Procedures Act (APA) or for purposes of review under the National Environmental Policy Act (NEPA).

A speedy process in establishing needed conservation and management measures is a laudable goal, but this is tantamount to creating law by the stroke of a pen!

Contrast the National Marine Sanctuaries Act to the Antiquities Act. The Sanctuaries law is 22 pages long, has 18 different sections, numerous provisions providing marine designation standards and procedures, there is onerous Congressional review, the Act itself has been reauthorized (reviewed and improved) eight different times since its enactment in 1972, and the Act has nearly 100 pages of implementing regulations providing a clear process for public input, comment, and thorough review of any proposed marine restricted area.

The Sanctuaries Act is far from perfect. However, it highlights the importance of receiving critical input from all user groups and providing a comprehensive evaluation of alternatives before any marine restricted area can be put in place.

The comparison of these two laws illustrates that the Antiquities Act was intended to protect historical terrestrial sites and was never intended to apply to the marine environment. The Sanctuaries Program and the legal authorities provided under the Act are complex, but so is the marine environment. Simply applying land-based management laws to the oceans does not work. The Antiquities Act is a convenient and expeditious way to lock up the marine environment, but the problem is you can’t fence off the oceans and create marine parks. This is a much more fluid system – literally.

The Islands in the Stream proposal would utilize the authority under the Antiquities Act to permanently lock up large areas of the Gulf of Mexico including, the South Texas Banks, Flower Garden Banks National Marine Sanctuary, North Texas-Louisiana Banks, Mississippi-Alabama Shelf Pinnacles, Madison Swanson, Florida Middle Grounds, Steamboat Lumps, Pulley Ridge, and the Florida Keys National Marine Sanctuary/Tortugas Ecological Reserve.

The Antiquities Act can only create “monuments” and the national monuments created on land and in the marine environment around Hawaii have always resulted in permanent restrictions to access without process. If this chain of marine monuments is established in the Gulf of Mexico, whatever access (limited or otherwise) recreational fishermen previously had to these areas and other prime fishing grounds, could be forever prohibited with no opportunity for review.

Coastal Conservation Association is the leading advocate for conserving the marine environment and ensuring sustainable fishery resources for generations of anglers to come. Walter Fondren, chairman of CCA National, recently wrote the chairman of the Council on Environmental Quality (CEQ), the agency within the Bush Administration that is actively pushing the Islands in the Stream proposal. The letter pointed out that the Antiquities Act will not provide the opportunity for public comment before marine monuments are established in the Gulf of Mexico and advised the chairman of CEQ to follow the law that was enacted under the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 that requires an ongoing review and a public process for the establishment of any marine restricted areas.

Following CCA’s lead, Sen. David Vitter (R-LA), Sen. Richard Shelby (R-AL) and Sen. Jeff Sessions (R-AL) jointly wrote a letter to the chairman of CEQ expressing strong objections to any proposal to create a network of marine monuments in the Gulf of Mexico.

The overall goal is to conserve the marine environment, but maintain access to a sustainable and productive fishery resource for recreational enjoyment. For the Islands in the Stream initiative, CCA is working towards creating a process that will allow the recreational angling community to have a voice in how these waters will ultimately be managed.