- Special Projects
In the months leading up to the Nov. 8 election, President Barack Obama signed a series of proclamations to dramatically increase the amount of land and water that is federally protected from commercial fishing, mining, drilling and development.
On Aug. 24, he established a nearly 90,000-acre national monument in the Katahdin Woods of Maine.
Two days later, Obama expanded Papahanaumokuakea Marine National Monument around the Northwestern Hawaiian Islands by 283 million acres, making it the world’s largest protected area at the time.
And on Sept. 15, he created the first national monument in the Atlantic Ocean, protecting more than 3 million acres of marine ecosystems, seamounts and underwater canyons southeast of Cape Cod, Massachusetts.
Obama has used a century-old law called the Antiquities Act to federally protect more land — 550 million acres and counting — than any other president. He’s established 24 new national monuments in at least 14 states since taking office eight years ago, with the bulk of the acreage in Papahanaumokuakea and the Pacific Remote Islands.
But with Republican Donald Trump’s surprise upset of Democrat Hillary Clinton, attention is turning to what Trump plans to do when he takes office in January and whether he will seek to undo or at least modify the national monuments that Obama created.
Supporters have defended the long-term conservation and historical benefits of the monuments with as much fervor as the critics who have slammed the president for a federal overreach that threatens their livelihoods.
It’s mostly speculation at this point as to what Trump will do but groups on both sides of the issue are keeping a watchful eye on things.
Advocates for commercial fishing interests on the East Coast have started nudging policymakers to consider what changes the next administration could make. But West Coast and Hawaii industry groups are still gathering information and developing plans.
Saving Seafood, a nonprofit that represents commercial fishing interests, has already started pushing policymakers to consider what changes the next administration could make to the Northeast Canyons and Seamounts Marine National Monument.
Saving Seafood Executive Director Robert Vanasse told the Associated Press earlier this month that he thinks it would be “rational” to allow some sustainable fishing in the monuments.
So far, local decision-makers there, such as the Gloucester Fishing Commission, have said it’s premature to change course.
That’s where the situation stands in Honolulu, too.
The Western Pacific Regional Fishery Management Council, or Wespac, is waiting on an economic analysis from the National Marine Fisheries Service on the effects that Papahanaumokuakea’s fourfold expansion may have on the commercial fishing industry, particularly the Hawaii longliners who target bigeye tuna for local sashimi markets.
The council has jurisdiction over 1.5 million square miles of ocean and manages domestic fisheries based mostly in the Pacific. The Hawaii commercial fishing industry alone generates roughly a half-billion dollars in sales annually and provides 11,000 jobs.
Wespac spokeswoman Sylvia Spalding said in an email last week that “our letters (to the Trump administration) are in review.” She said the group hopes to have more information soon.
Trump released a video statement last week that outlined some of his plans for his first 100 days in office. That agenda includes taking executive actions “on day one to restore our laws and bring back our jobs.”
He’s tasked his transition team to come up with a list of what actions he could take. Trump’s communications staff did not return messages seeking comment about whether rescinding national monuments would make the cut.
Trump would be the first to rescind a previous president’s national monument proclamation. The Antiquities Act does not expressly give the president such power, and court challenges have been unsuccessful in undoing a presidential designation.
But the Republican-led Congress could, and it has in the past, according to Carol Hardy Vincent, specialist in natural resources policy, who wrote a 21-page report in September on national monuments and the Antiquities Act for the Congressional Research Service.
Congress abolished the Fossil Cycad National Monument in South Dakota in 1956, transferring control to the Bureau of Land Management to be administered under the public land laws.
And in 1930, Congress decided the Papago Saguaro National Monument in Arizona should be conveyed to the state for park, recreational and other public purposes.
There were efforts to turn back President George W. Bush’s 2006 designation of Papahanaumokuakea but the legal challenge claiming fishing rights had been lost ultimately failed.
“It seems to be an uphill battle for a president to unilaterally do it.” — Paul Achitoff, Earthjustice
But the courts have not taken up the issue of whether the president has the authority to abolish a national monument, according to Vincent’s report.
There is a 1938 attorney general’s opinion that suggests the president does not have the power to revoke a previous proclamation for a national monument. It says, in part, that it is “both logical and appropriate to construe the Antiquities Act to allow a President to protect resources, but to deny a President the authority to undo those protections.” Homer Stille Cummings of Connecticut was the U.S. attorney general during that period.
“It seems to be an uphill battle for a president to unilaterally do it,” said Paul Achitoff, an attorney for Earthjustice, a nonprofit environmental law organization.
Whether this Congress would do it is another story, Achitoff said.
“We will be keeping an eye on it if there seems to be anything we can do to prevent that,” he said.
Republican members of Congress have in the past introduced legislation to weaken the president’s power to unilaterally create national monuments — and to defund those already designated — but such measures have yet to pass.
State Rep. Chris Lee, who chairs the Hawaii House Energy and Environmental Protection Committee, is also waiting to see what Trump and the GOP-controlled Congress will do, if anything.
“The real question is what’s going to happen to the nation’s public lands that President Obama protected from oil exploration and drilling and what happens to the indigenous communities in those areas and fights like you’re seeing right now over the Dakota Access Pipeline,” he said.
U.S. Sen. Brian Schatz, a Democrat from Hawaii, was the one who officially proposed expanding Papahanaumokuakea to nearly 600,000 square miles. He declined to comment for this story.
In June, after putting forward the proposal to Obama to expand the monument, Schatz said that it would “strengthen an ecosystem that sustains tuna, swordfish, sharks, seabirds, sea turtles and Hawaiian monk seals” while protecting archaeological sites and biocultural resources.
Wespac and commercial fishermen based in Hawaii opposed the expansion from the outset, calling into question the science supporting it and blasting the use of the Antiquities Act.
They argued that fishermen rely on the area to catch roughly 10 percent of their tuna annually and that the expansion effectively closed 60 percent of Hawaii’s waters to commercial fishing.
The longline fleet catches most of its fish in international waters outside of the 200-mile federal zone around the Hawaiian Islands, and operates under a quota system that allows it to make up lost catch elsewhere.
Wespac Executive Director Kitty Simonds called it a “conservation burden” to have such large marine monuments in Pacific waters.
But Seth Horstmeyer, a director with The Pew Charitable Trusts’ Global Ocean Legacy project which supported the monument expansion, said it will likely be hard to undo Obama’s decision on Papahanaumokuakea.
“The cultural and scientific rationale for the monument is sound, there is tremendous public support, and both Presidents Bush and Obama — Republican and Democrat — operated under clear executive authority to create and expand this critically important marine reserve,” he said in a statement.
He underscored that the Antiquities Act does not allow a president to repeal a previous monument proclamation, adding that “if it did it would be difficult making a case to repeal or weaken Papahanaumokuakea.”
At Wespac’s most recent meeting in October, the council agreed to start drafting amendments and regulations to the Hawaii and pelagic fishery ecosystem plans in response to the marine monument’s expansion. Commercial fishing will be prohibited in the expanded area, as it was in the existing monument, but there are expected to be similar provisions to allow noncommercial fishing and Native Hawaiian traditional fishing practices to continue.
Public input is being sought including at statewide meetings that will be held before the council’s next meeting in March.
“The impacts to the Hawaii fishing and seafood industries and indigenous communities as a result of monument expansion are considerable,” Council Chair Edwin Ebisui Jr. said in a Wespac press release last month. “The Council will write to the President about these and request the Department of Commerce to mitigate them.”
Other regional fishery councils are similarly taking up the issue of recently created national monuments in areas under their jurisdiction.
The New England Fishery Management Council is looking at the Northeast Canyons and Seamounts Marine National Monument, a 5,000-square-mile area off the New England coast.
Vanasse, of Saving Seafood, told AP earlier this month that he would anticipate there being a desire to address monuments.
“Whether it’s the radical step of revoking the designation, or modifying it to allow non-destructive, sustainable fishing to take place, which we think is rational, I don’t know,” he said.