Monumental Seascape Modification under the Antiquities Act

Article excerpt

I. 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. …