Monumental seascape modification under the Antiquities Act.

• Author: Morris, Peter H.

1. INTRODUCTION II. HISTORY OF MARINE SANCTUARY DESIGNATIONS A. Genesis: 1972-1981 B. Arrested Development: 1981-1989 C. Legislative Revival and Consolidation: 1989-1995 D. Wavering Protection Beneath the Waves: 1995-2012 III. THE NATIONAL MARINE SANCTUARIES ACT AND THE ANTIQUITIES ACT OF 1906 A. Marine Sanctuaries Act: Requirements and Problems B. Magnuson-Stevens Fishery and Conservation Act." Conservation in Name Only C. Antiquities Act." Substantive and Procedural Requirements 1. Legislative and Judicial History 2. Executive Precedent and Land Monuments 3. Executive Precedent and Marine Monuments 4. Legislative Responses D. Antiquities Act Problems and Solutions IV. THE SANCTUARY AND THE MONUMENT A. The Florida Keys National Marine Sanctuary B. The Papahanaumokuakea Marine National Monument C. Lessons V. CONCLUSION I. INTRODUCTION

   Any plan is better than no plan. (1)

   Government action is urgently required to address the existing needs and growing challenges facing our nation's underwater treasures. Some of the most pressing of these problems are the lack of effective adaptive management programs, as well as duplicative and inefficient procedural obstacles. This Article explores an alternate means to modify and protect existing national marine sanctuaries when Congress fails to do so. Surprisingly, the key may lie in a dusty old statute that was passed over a century ago--the Antiquities Act (2)--which has been applied almost exclusively to dry land. (3) Although a few scholars have explored the Antiquities Act as a means to create new sanctuaries, (4) none have considered its usefullness to modify existing ones.

   The National Marine Sanctuaries Act (Marine Sanctuaries Act) (5) is the only federal statute that allows designation of large-scale ocean areas for permanent protection and long-term management. The Marine Sanctuaries Act authorizes executive branch designations, subject to approval by Congress and the states. (6) In contrast, Congress used the Antiquities Act to delegate authority to declare monuments directly to the President without the need for subsequent congressional approval. (7)

   The Marine Sanctuaries Act establishes the National Marine Sanctuaries Program (Marine Sanctuaries Program), (8) "the Nation's only comprehensive system of marine protected area[s]." (9) But the Marine Sanctuaries Act was last reauthorized in 2000, (10) and a pall of uncertainty has been cast over the Marine Sanctuaries Program because there is no specific date for the expiration of Congress's prohibition on designating new national marine sanctuaries, (11) the redesignation of existing sanctuaries, (12) or the reactivation of the National Oceanic and Atmospheric Administration's (NOAA) register of sanctuary candidate sites. (13) It is hard to imagine a similar suspension of the expansion of the national park or national wildlife refuge systems. (14) In fact, just the opposite has happened; since 2000, two national parks (15) and twenty-one national wildlife refuges (16) have been created, and over 8,102 square miles of protected lands have been set aside by reservation of federal lands and by expansion through acquisition and reservation of private lands.

   To address the existing needs and growing challenges facing our nation's sanctuaries, the federal government must implement effective adaptive management programs, as well as consolidate redundant public processes and regulatory overlaps. Although management plans are developed during the initial designation process, these were never intended to be static documents. (17) Because marine sanctuaries naturally experience dynamic ecological changes over varying timescales, marine management authorities should adopt more adaptive, flexible, and site-specific methods of sanctuary management. However, Congress has prescribed an elaborate consultation and modification process, such that any proposal to change the original terms of a designation (e.g., its purposes, the resources protected, or activities regulated) must repeat the procedural steps of the original designation. (18) This is compounded by the inefficiency of marine sanctuaries' bewildering array--and overlapping responsibilities--of federal, regional, and state enforcement authorities, ultimately leading to an overall ineffective marine sanctuary management scheme.

   Congress has yet to address the moratorium issue, which the 2000 reauthorization contemplated would last only five years. (19) This, and the evolution of management practices, (20) have put the Marine Sanctuaries Program in dire need of a resourceful way to attain its conservation objectives until Congress can address the moratorium. In the absence of legislative action, the flat prohibition of the redesignation of existing sanctuaries and designation of new ones critically weakens NOAA's only stewardship program.

2. HISTORY OF MARINE SANCTUARY DESIGNATIONS

   Since the creation of the Marine Sanctuaries Program, fourteen marine protected areas--thirteen national marine sanctuaries and one marine national monument---comprising approximately 113,565 square nautical miles (or 3% of the U.S. exclusive economic zone) have been established. (21) The program's development has been neither easy nor coherent. (22) A series of presidential administrations with dramatically different environmental priorities, (23) an alternately inertial, protection-averse, and protection-leaning Congress, (24) and industry-friendly Regional Fishery Management Councils have left the program pockmarked with an erratic history. (25)

   1. Genesis: 1972-1981

      The Marine Sanctuaries Program's earliest years under the Ford administration resulted in the designation of two very small sanctuaries, both of which were designed to protect non-environmental resources. (26) The first sanctuary, the Monitor National Marine Sanctuary, was designated off the coast of North Carolina around the one-mile area surrounding the sunken Civil War ironclad U.S.S. Monitor on January 31, 1975. (27) Soon afterward, the Key Largo National Marine Sanctuary was designated to cover a 103-mile area off the South Florida coast for the purpose of supplementing the existing John Pennekamp Coral Reef State Park. (28) Although both sanctuaries were protected as nationally significant marine resources, neither one was particularly significant in size, nor designed to protect marine environments--the first protected a shipwreck, while the latter nominally extended the reach of an existing state park. (29) Meanwhile, the Marine Sanctuaries Program "did not receive any funding until 1977, when it operated [using] funds [redirected] from NOAA's administrative budget." (30) By 1978, the program was almost forgotten. (31)

      During the Carter administration's twilight years, however, the Marine Sanctuaries Program enjoyed a remarkable comeback. In 1980, the Channel Islands National Marine Sanctuary off the coast of California became the first sanctuary designated to protect stand-alone environmental resources. (32) Moreover, its 1,100 nautical square mile size dwarfed the diminutive Monitor and Key Largo sanctuaries. (33) In 1981, the 948 square nautical mile Gulf of the Farallones National Marine Sanctuary, also off the coast of California, was Designated. (34) These two sanctuaries--which flatly prohibited fossil fuel exploration and development, but left commercial fishing unregulated--also represented the first large-scale demonstrations of the Marine Sanctuaries Program's limited compatible use standard. (35)

      That same year, other sanctuaries were designated off the coast of Florida at Looe Key, and off the coast of Georgia at Gray's Reef. (36) By 1981, the Marine Sanctuaries Program had grown to include four additional marine sanctuaries--for a total of six. (37)

   2. Arrested Development." 1981-1989

      During the Reagan administration, the Marine Sanctuaries Program ground to a halt. Over eight years, and despite a number of nominations, the administration designated only one sanctuary, Fagatele Bay National Marine Sanctuary, which, at 0.25 square miles, is the smallest sanctuary in the program. (38) The administration's opposition to the program caused it to further atrophy through dramatically reduced funding and staff vacancies that were left unfilled. (39)

      Congress eventually grew frustrated with executive inaction, and signaled as much when it reauthorized the Marine Sanctuaries Act in 1984 and expanded the designation criteria to include ecosystem services, as well as historical, archaeological, or paleontological resources. (40) At the same time, however, the list of mandatory factors for NOAA to consider were expanded to include any potentially negative economic effects of a sanctuary. (41) Congress also imposed a requirement that NOAA consult with Regional Fishery Management Councils when the agency proposes a designation. (42)

   3. Legislative Revival and Consolidation: 1989-1995

      The Marine Sanctuaries Program enjoyed its most active years during the presidency of George H. W. Bush. (43) Although President Bush had initially opposed the program as much as his predecessor, the 1989 Exxon Valdez oil spill disaster galvanized congressional and public pressure, forcing the administration to switch positions and lukewarmly support the program. (44) Despite the added impetus of the Valdez disaster, NOAA labored under the gridlock-prone Marine Sanctuaries Act procedures to designate new sanctuaries. As a result, it was only able to designate the Cordell Bank National Marine Sanctuary off California, and failed to complete the designation of long-tabled proposal sites at the Flower Garden Banks off the coasts of Texas and Louisiana, and at Monterey Bay off California. (45)

      Recognizing NOAA's struggle to designate under the Marine Sanctuaries Act, and in response to several highly publicized vessel groundings in the Florida Keys, Congress unilaterally designated the Florida Keys National Marine Sanctuary. (46) For...