A federal proposal to provide additional resources and increased protections for Papahanaumokuakea Marine National Monument by designating it as a national marine sanctuary could end up having the opposite effect.

Some members of the Western Pacific Regional Fishery Management Council and its Scientific and Statistical Committee see the sanctuary process as a way to potentially reopen the area around the Northwestern Hawaiian Islands to commercial fishing should a future president or court decision remove the monument status that has banned such activity for the past 15 years.

In the sanctuary process currently under consideration by the federal government, Wespac would help develop the fishing regulations for a marine sanctuary with approval from the National Oceanic and Atmospheric Administration, which opened up the public comment period Friday on the current proposal.

“Turning this monument into a sanctuary gives the council another crack at developing fishery regulations,” Wespac SSC member Craig Severance, an anthropologist and part-time commercial fisherman, said at the advisory group’s September meeting.

Ironically, adding a sanctuary overlay to Papahanaumokuakea was motivated in part by a desire to ensure commercial fishing stays off-limits should the monument restrictions change one day. Sanctuaries are harder to undo because it requires an act of Congress, whereas presidents have unilaterally created and expanded marine monuments using their executive authority under the Antiquities Act. President George W. Bush established Papahanaumokuakea in 2006 and President Barack Obama more than tripled its size in 2016.

U.S. Sen. Brian Schatz inserted a provision in a government funding bill in December to start the sanctuary process. NOAA announced Friday that it is accepting public comments on the proposal through Jan. 31.

“Papahanaumokuakea is a special place that deserves the strongest protections we can give it,” Schatz said in a news release Friday. “Designating the area as a sanctuary will allow its managers, including the Office of Hawaiian Affairs, to better protect its cultural and environmental value while planning for the long term, so future generations of Native Hawaiians and Hawai‘i residents will be able to see Papahanaumokuakea the way we do today.”

While Wespac was unsuccessful in its appeals to President Donald Trump to undo the monument’s fishing prohibitions, the nation’s high court appears to have left open an alternative avenue.

In a March decision declining to review a case brought by the Massachusetts Lobstermen’s Association about the Northeast Canyons and Seamounts Marine National Monument, Chief Justice John Roberts indicated his reservations about presidents using the Antiquities Act to unilaterally establish such massive monuments. 

“A statute permitting the President in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea,” he said.

Roberts suggested that several cases headed to the Supreme Court could raise this issue and potentially invalidate some monuments.

Wespac and Hawaii’s longline industry have highlighted the disproportionate amount of U.S. waters in the region that are closed off to fishing. Roughly 52% of U.S. waters in the Pacific fall within a protected zone, according to NOAA. Nationally, 26% of the country’s exclusive economic zone is protected.

The council said in its fall newsletter that it’s working with NOAA lawyers to “better assess the existing regulatory frameworks regarding fishing,” but acknowledged that undoing the current fishing restrictions appears unlikely through the sanctuary designation process.

Papahanaumokuakea is one of the world’s largest protected areas, covering nearly 600,000 square miles. NOAA, the U.S. Fish and Wildlife Service, State of Hawaii and the Office of Hawaiian Affairs co-manage the monument, which NOAA says will continue.

“Papahanaumokuakea’s ecosystems are increasingly under pressure from threats such as marine debris, invasive species and climate change,” said Rick Spinrad, NOAA administrator, in the release Friday. “Designation of the monument’s waters as a national marine sanctuary would complement the efforts of the four co-trustees to safeguard the monument’s natural, cultural and historic values.”