Marine Protected Areas (MPAs): Federal Legal Authority

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Marine Protected Areas (MPAs):

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RL32486

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Prepared for Members and Committees of Congress

Marine Protected Areas (MPAs): Federal Legal Authority

Summary

Recent events, including the release of the President’s U.S. Ocean Action Plan and reports issued

by the United States Commission on Ocean Policy and the Pew Oceans Commission, have

prompted a reexamination of U.S. ocean policy and debate over an “ecosystem approach” to

ocean resource management. One proposed mechanism for conserving ocean resources is the

Marine Protected Area (MPA), conceptualized as a zoning system for the portions of the ocean

under U.S. jurisdiction. This has been highlighted by the issuance of the Revised Draft

Framework for Developing the National System of Marine Protected Areas (Draft Framework),

issued on March 17, 2008, by the National Marine Protected Areas Center, part of the National

Oceanic and Atmospheric Administration (NOAA). The introduction of H.R. 21 in the 110th

Congress has also focused attention on the health of ocean resources.

The relative merits and the potentially negative consequences of such an MPA system have been

widely discussed. Advocates of additional protection argue that a more comprehensive system as

outlined in the Draft Framework should be established. Others argue that the current system is

effectively managing ocean resources and that additional restrictions would be economically

harmful.

Apart from the relative merits of each position, there is some question as to the applicability of

current federal law to the oceans and whether new protections could be imposed administratively,

without additional legislation. To some extent, regulatory authority depends upon the nature of

the jurisdiction that the United States has claimed over various ocean resources vis-à-vis other

nations and vis-à-vis the states. Consistent with international law, the United States claims

jurisdiction over marine areas extending 200 nautical miles from its coast and has regulated

resources in the zones composing this area under multiple legal authorities.

Several current laws which might provide authority for the creation of MPAs are aimed

specifically at the ocean environment. The National Marine Sanctuary Program, established by

the Marine Protection, Research and Sanctuaries Act, the Magnuson-Stevens Fishery

Conservation and Management Act, and the Coastal Zone Management Act each specifically

contemplate various levels and forms of aquatic resource protection.

Additionally, certain generally applicable laws, while primarily intended for use on land, would

arguably support the designation of an MPA in some circumstances. Indeed, U.S. MPAs within

the territorial seas have been established as national monuments, national parks, national wildlife

areas, and, most recently, as a reserve via executive order.

This report outlines U.S. jurisdiction over ocean resources and analyzes the existing laws to

assess their application to marine environments.

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Contents

Introduction ................................................................................................................................1

U.S. Jurisdiction Over Marine Resources ....................................................................................2

The Territorial Sea ................................................................................................................4

The Exclusive Economic Zone..............................................................................................5

The Contiguous Zone............................................................................................................ 5

Current Law Specific To Marine Environments ...........................................................................6

National Marine Sanctuaries Act ...........................................................................................6

Magnuson-Stevens Fishery Conservation and Management Act.............................................9

Outer Continental Shelf Lands Act ...................................................................................... 11

Coastal Zone Management Act............................................................................................ 12

General Preservation Laws........................................................................................................ 13

National Monuments........................................................................................................... 13

National Park System.......................................................................................................... 16

The National Wildlife Refuge System ................................................................................. 18

Marine Preservation Through Executive Order .................................................................... 20

Conclusion................................................................................................................................ 25

Contacts

Author Contact Information ...................................................................................................... 26

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Introduction

Scientific documentation of the ecological condition of the oceans, such as the reports recently

issued by the United States Commission on Ocean Policy and the Pew Oceans Commission, has

been cited as evidence of deteriorating aquatic conditions. The President responded to these

reports by creating the Committee on Ocean Policy within the White House Council on

Environmental Quality.1 The Bush Administration has also released a U.S. Ocean Action Plan, a

report setting forth Administration support for development of a Global Ocean Observing System;

various state, local, and federal partnerships in ocean stewardship and management; individual

fishing quotas and greater use of market-based systems for fisheries management; development of

an Ocean Research Priorities Plan and Implementation Strategy; and a National Freight Action

Agenda to ensure a safe, reliable, efficient, and competitive freight transportation system. The

Plan also indicates that the President will pursue Coral Reef Local Action Strategies, U.S.

accession to the UN Convention on the Law of the Sea, and passage of legislation to more clearly

define the National Oceanic and Atmospheric Administration’s (NOAA’s) responsibilities within

the Department of Commerce.2

Recently there has been debate over whether the development of a more comprehensive system of

marine resource preservation is appropriate.3 Currently, a number of U.S. marine sites have been

designated for and receive special protections under laws specifically aimed at preserving ocean

resources, such as the National Marine Sanctuary Program, established in 1972 by the Marine

Protection, Research and Sanctuaries Act;4 the Magnuson-Stevens Fishery Conservation and

Management Act;5 and the Coastal Zone Management Act.6

Executive Order 13,158, issued by President Clinton and retained by the Bush Administration,

made Marine Protected Area (MPA) designation and management a national priority. That Order

defined an MPA as “Any area of the marine environment that has been reserved by federal, state,

territorial, tribal or local laws or regulations to provide lasting protection to part or all of the

natural or cultural resources therein.”7 Under Executive Order 13,158, federal agencies are

directed to strengthen general protections for existing MPAs and to prevent federal actions from

resulting in harm to these areas. Agencies are also directed to improve management efforts, in

part through establishing a comprehensive national MPA system. 8 The Executive Order does not

The Committee is to

(a) coordinate the activities of executive departments and agencies regarding ocean-related matters

in an integrated and effective manner to advance the environmental, economic, and security

interests of present and future generations of Americans; and

(b) facilitate, as appropriate, coordination and consultation regarding ocean-related matters among

Federal, State, tribal, local governments, the private sector, foreign governments, and international

organizations. Exec. Order No. 13366, 69 Fed. Reg. 76,591 (December 17, 2004).

U.S. Ocean Action Plan: The Bush Administration’s Response to the U.S. Commission on Ocean Policy, (December

17, 2004) available at http://ocean.ceq.gov/.

H.R. 21, a bill introduced in the 110th Congress that is intended to “provide a national policy for our oceans,” is one

manifestation of this debate.

Act of October 23, 1972, P.L. 92-532 (codified at scattered sections of titles 16 and 33).

16 U.S.C. §§ 1801-1882.

16 U.S.C. §§ 1451-1465.

Exec. Order No. 13,158, 65 Fed. Reg. 34,909 (May 26, 2000).

Id.

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clarify where (i.e. which zone of U.S. jurisdiction) MPAs can be created or what laws authorize

their creation. It should be noted, however, that Executive Order 13,158 does not confer new

designation or management authority on the federal agencies, stating that “[e]ach Federal agency

whose authorities provide for the establishment or management of MPAs shall take appropriate

actions to enhance or expand existing MPAs and establish or recommend, as appropriate, new

MPAs.”9 Additionally, the Order states that when designating MPAs, federal agencies must “act in

accordance with international law and with Presidential Proclamation 5928 of December 27,

1988, on the Territorial Sea of the United State of America, Presidential Proclamation 5030 of

March 10, 1983, on the Exclusive Economic Zone of the United States of America, and

Presidential Proclamation 7219 of September 2, 1999, on the Contiguous Zone of the United

States.”10

In September of 2006, the National Marine Protected Areas Center, a division of the National

Oceanic and Atmospheric Administration, issued its Draft Framework for Developing the

National System of Marine Protected Areas.11 After an extensive comment period, the National

Marine Protected Areas Center produced a revised version of this document in March of 2008

(referred to herein as the Draft Framework). The Draft Framework provides guidance for a

collaborative effort among federal, state, tribal, and local governments and other stakeholders to

develop an effective National System of Marine Protected Areas, building on existing programs. 12

However, as the Draft Framework acknowledges, “[n]either the [MPA] national system nor

[Executive Order 13,158] establish any new legal authorities to designate or manage MPAs, nor

do they alter any existing federal, state, local, or tribal MPA laws or programs. Each MPA or

program that participates in the national system will continue to be independently managed by its

respective agency or agencies, as will any new sites that eventually may be established.”13

As the Draft Framework states, the new National System is intended to be a “system of sites and

systems” coordinating the various existing programs with legal authority to establish MPAs.14

This report analyzes various sources of legal authority to assess their possible application to

marine environments and will outline the protection and management system each might support.

U.S. Jurisdiction Over Marine Resources

International law recognizes that coastal nations have legal authority to manage certain ocean

resources within their jurisdiction. The 1982 United Nations Convention on the Law of the Sea

(UNCLOS III) recognizes general zones within which signatory nations may regulate exploitation

of marine resources. UNCLOS III recognizes a region extending up to twelve “nautical miles”15

from a nation’s coast, the territorial sea of that nation, in which the coastal nation may claim full

Id. at § 3 (emphasis added).

Id. at § 7.

The Revised Draft Framework is available at http://www.mpa.gov/pdf/national-system/

revise_draft_frmwk_0308.pdf. The comment period ends May 16, 2008.

Draft Framework, at 1-2.

Draft Framework, at 5.

Id.

Relevant measurements: (geographical mile = 6,087.15 ft.), (land mile = 5,280 ft.), (marine league = 18,228.3 ft.),

(nautical mile = 6,076.1 ft.).

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ownership and sovereignty over the waters, seabed, and the subsoil.16 Coastal nations can further

regulate beyond the territorial sea up to 24 nautical miles from the coast, the contiguous zone, in

so far as necessary to protect the territorial sea and to enforce its customs, fiscal, immigration,

and sanitary laws. 17 Further, UNCLOS III allows for an exclusive economic zone (EEZ), which

extends two hundred nautical miles from the coast. In its EEZ, the coastal nation has sovereign

rights to explore, exploit, conserve, and manage marine resources.18 Many elements of the

jurisdictional scheme under UNCLOS III reflect long-standing practice and may be considered

customary international law, a position the United States appears to have taken when it

proclaimed its own EEZ jurisdiction.19

Although the United States has signed the most current version of the UNCLOS III agreement, it

has yet to ratify the treaty; consequently, the United States is not a formal party. Even absent

ratification, however, the U.S. has claimed jurisdiction over zones virtually identical to those

contemplated by UNCLOS III via a series of presidential proclamations. 20

Several federal laws explicitly apply to U.S. waters, including the territorial sea, contiguous zone,

and EEZ.21 Additionally, certain resource protection and management frameworks now in place

might also be applied to ocean resources in the territorial sea, the contiguous zone, and the EEZ

should Congress or the President designate such areas for protection. Generally, Congress has

broad constitutional authority to “dispose of and make all needful Rules and Regulations

respecting the Territory or other Property belonging to the United States....”22 Also, any portions

of the U.S.-claimed waters and resources that might not be fairly characterized as “Territory” or

“Property” might nonetheless fall under congressional authority to “regulate Commerce with

foreign Nations and among the several States, and with the Indian Tribes....” among others.23

The President, even if not explicitly granted regulatory authority by statute, may also have

constitutional authority to impose regulations on the use of ocean resources claimed by the United

States. For instance, the Constitution grants the President broad authorities regarding the foreign

relations, national defense, and treaties of the United States.24

Additionally, should UNCLOS III be ratified, its many marine habitat provisions, which require

parties to protect and preserve the marine environment, 25 may provide the President and Congress

with additional authority for the regulation of marine resources in order to execute the treaty

United Nations Convention on the Law of the Sea, December 10, 1982, arts. 2.1, 2.2, 3, 21 I.L.M. 1261 (entered into

force November 16, 1994).

Id. at art. 33.

Id. at art. 56.1.

Id.; Proclamation 5030, Exclusive Economic Zone of the United States of America, March 10, 1983.

See UNITED NATIONS, STATUS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA 10

(May 30, 2002); Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 48 Fed. Reg.

10,605 (March 14, 1983); Territorial Sea of the United States of America, Proclamation No. 5928, 54 Fed. Reg. 777

(December 27, 1988); Contiguous Zone of the United States, Proclamation No. 7219, 64 Fed. Reg. 48,701 (August 2,

1999).

See, e.g., 16 U.S.C. §§ 1362(15); 1432(3); 1538(a)(1)(B)-(C).

U.S. CONST. art IV, § 3.

U.S. CONST. art. I, § 8.

U.S. CONST. art II, § 2.

See CRS Report RL32185, U.N. Convention on the Law of the Sea: Living Resources Provisions, by (name reda

cted).

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obligations of the U.S. The President and Congress may also have authority to protect ocean

resources under the auspices of implementing current U.S. treaty obligations. Under the Protocol

Amending the 1916 Convention for the Protection of Migratory Birds, for instance, the

government of a signatory nation is directed to “use its authority to protect and conserve habitats

essential to migratory bird populations.”26 This might authorize the protection of ocean resources

to the extent necessary to implement the purpose of the underlying treaty.

The current extent of the authority of the U.S. government in each zone is complex and must be

considered in two contexts: the federal government vis-à-vis the international community and the

federal government vis-à-vis the states. An overview of the relative authorities in each zone

follows.

The Territorial Sea

As stated above, UNCLOS III recognizes a territorial sea extending twelve nautical miles from a

nation’s coast in which a coastal state may exercise full jurisdiction to the extent that it does not

conflict with the right of foreign vessels to innocent passage. 27 The United States claims a twelve

nautical mile territorial sea consistent with the UNCLOS III expression. Presidential

Proclamation 5928 states that the United States “exercises sovereignty and jurisdiction ... that

extend to the airspace over the territorial sea, as well as to its bed and subsoil.”28 Thus, the United

States is generally considered to exercise full sovereign authority over its territorial sea vis-à-vis

other nations. The United States Supreme Court has also recognized U.S. authority to impose

significant protective measures on ocean resources in this area.29 Thus, it would appear relatively

clear that, in the international law context, U.S. jurisdiction over the territorial sea is analogous to

the sovereignty a nation possesses over its land territory, subject to the right of innocent

passage.30

Jurisdiction over the territorial sea of the United States is complicated by the authority of coastal

states under our federal system. The Federal Submerged Lands Act of 195331 assured coastal

states title to the lands beneath coastal waters in an area stretching, in general, three

“geographical miles”32 from the shore.33 Thus states may regulate the coastal waters within this

Protocol Amending the 1916 Convention for the Protection of Migratory Birds (December 5, 1995), available at

http://www.le.fws.gov/pdffiles/Canada_Mig_Bird_Treaty.pdf.

UNCLOS III arts. 2.1, 17-26, 37-44, 53.

Proc. No. 5928 (December 27, 1988).

See, e.g., United States v. California, 436 U.S. 32, 36 (1978); United States v. Alaska, 422 U.S. 184, 199 (1975).

See UNCLOS III, art. 2.1; Restatement (Third) of the Foreign Relations Law of the United States, §§ 512, 513

(1986).

43 U.S.C. §§ 1301-1303, 1311-1315.

Relevant measurements: (geographical mile = 6,087.15 ft.), (land mile = 5,280 ft.), (marine league = 18,228.3 ft.),

(nautical mile = 6,076.1 ft.).

43 U.S.C. § 1301(a)(2). Certain coastal states, namely Florida and Texas, have slightly different claims, as

recognized by the Submerged Lands Act. Each of these states may claim title to 3-marine league (9 nautical miles)

seaward boundary within which the states own and regulate marine resources, including fish and offshore minerals. Id.

See also United States v. Louisiana, 363 U.S. 1, 66 (1960) (“pursuant to the Annexation Resolution of 1845, Texas’

maritime boundary was established at three leagues from its coast for domestic purposes.... Accordingly, Texas is

entitled to a grant of three leagues from her coast under the Submerged Lands Act”); United States v. Florida, 363 U.S.

121, 129 (1960) (“We hold that the Submerged Lands Act grants Florida a three-marine-league belt of land under the

Gulf, seaward from its coastline, as described in Florida’s 1868 Constitution.”).

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area, subject to federal regulation for “commerce, navigation, national defense, and international

affairs ...”34 and the power of the federal government to preempt state law. 35 The remaining outer

portions of waters over which the United States exercises jurisdiction are federal waters.36

The Exclusive Economic Zone

Consistent with UNCLOS III and international law and custom, the United States has claimed an

EEZ extending, in general, 200 nautical miles from its coasts.37 In its EEZ, the United States has

sovereign rights over the exploration, exploitation, conservation, and management of the natural

resources of the sea-bed, subsoil, and the superadjacent waters.38 According to UNCLOS III, U.S.

jurisdiction also extends over “other activities for the economic exploitation and exploration of

the zone, such as the production of energy from the water, currents and winds”39 and, subject to

some limitations, “the establishment and use of artificial islands, installations and structures;

marine scientific research; and the protection and preservation of the marine environment.”40

While the United States does claim sovereign rights over natural resource management and the

regulation of certain economic activities, it has less than full sovereignty and ownership of its

EEZ.41 As with the contiguous zone, it remains unclear precisely how this might limit U.S.

regulation or the application of federal law currently aimed at areas “within the United States.”

The Contiguous Zone

Under UNCLOS III and customary international law, a coastal nation may claim a contiguous

zone extending beyond its territorial sea and up to twenty-four nautical miles from the coast, in

which a coastal nation may also claim jurisdiction and regulate as may be necessary to protect the

territorial sea and to enforce its customs, fiscal, immigration, and sanitary laws.42 After the

extension of the U.S. territorial sea, President Clinton issued Proclamation No. 7219, claiming a

U.S. contiguous zone reaching twenty-four nautical miles from the coast.43 Consistent with

UNCLOS III, the Proclamation states that the United States “may exercise the control necessary

to prevent infringement of its customs, fiscal, immigration, or sanitary laws and regulations

within its territory or territorial sea.”44

The exact contours of U.S. authority in the contiguous zone are not, however, clearly defined. In

United States v. De Leon, the Court of Appeals for the First Circuit stated “[t]he contiguous zone

is an area in which the United States claims certain rights short of sovereignty.”45 The court did

43 U.S.C. § 1314(a).

43 U.S.C. § 1311(a)(2).

43 U.S.C. § 1302.

Proc. No. 5030 (March 10, 1983).

UNCLOS III Arts. 56, 58.

Id. at art. 56.1.

Id. at art. 56.1(b).

Id. at § 514, comment. c.

Id. at art. 33.

Proc. No. 7219 (September 2, 1999).

Id.

United States v. De Leon, 270 F.3d 90, 91 n.1 (1st Cir. 2001).

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not go on to define the U.S. rights in the area nor does it appear that other courts have had the

opportunity to do so. Thus, while it is clear that Congress has directed legislation at contiguous

zone resources and that the United States can exercise some amount of regulatory control over the

zone, it would not appear that this area would constitute U.S. territory subject to full U.S.

sovereignty or ownership.46 Accordingly, the regulatory authority of the United States or the

applicability of federal laws directed at areas “within the United States” may be limited.

Current Law Specific To Marine Environments

National Marine Sanctuaries Act

The National Marine Sanctuaries Act (NMSA), 47 found in Title III of the Marine Protection,

Research, and Sanctuaries Act of 1972, comes the closest to providing the legal framework for

the creation of a national system of marine protected areas.48 The scope of this act looks beyond

species or resource-specific protection and focuses on protecting entire marine ecosystems (an

approach also adopted under the essential fish habitat provisions of the Magnuson-Stevens

Fishery and Conservation Management Act, discussed infra).49 Thirteen national marine

sanctuaries, covering approximately 18,000 square miles in the Atlantic and Pacific Oceans, have

been established. 50 While these sites vary significantly as to geographic region and the types of

resources they contain, it would appear that each is located in the territorial sea of the United

States or one of its island territories.51

Designation of national marine sanctuaries under the act can take place by act of Congress or

administratively.52 As to administrative designation, the Secretary of Commerce (the Secretary),

acting through NOAA, is authorized to designate “any discrete area of the marine environment as

a national marine sanctuary and promulgate regulations implementing the designation....”53

Administrative designation under the act requires compliance with a statutorily imposed process,

described below.

The administrative designation process begins with publication of several documents in the

Federal Register, including a notice of the proposal.54 The Secretary must also furnish the “terms

of the proposed designation,”55 the draft management plan, proposed regulations, the draft

See Vermilya-Brown Co. v. Connell, 335 U.S. 377, 381 (1948); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d 1412,

1425 (11th Cir. 1995) (control and jurisdiction is not equivalent to sovereignty).

16 U.S.C. §§ 1431-1445b (2003)(as amended).

16 U.S.C. § 1431(b)(2).

Id. 16 U.S.C. §§ 1431(a), 1433.

COMMITTEE ON THE EVALUATION, DESIGN, AND M ONITORING OF MARINE RESERVES AND PROTECTED AREAS IN THE

U.S., NAT’L RESEARCH COUNCIL, MARINE PROTECTED AREAS: TOOLS FOR SUSTAINING OCEAN ECOSYSTEMS at 156

(2001).

See http://sanctuaries.noaa.gov/visit/welcome.html.

Congress has designated two marine sanctuaries. See Florida Keys National Marine Sanctuary and Protection Act,

P.L. 101-605, (1990); Hawaiian Islands National Marine Sanctuary Act, P.L. 102-587, (1992). The others were created

administratively.

16 U.S.C. § 1433(a).

16 U.S.C. § 1434(a)(1)(A).

16 U.S.C. § 1434(a)(2)(C)(i). “The terms of designation of a sanctuary shall include the geographic area proposed to

(continued...)

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Environmental Impact Statement (EIS), and cost estimates, as well as other supporting

documents.56 The law requires a public hearing to be held in the coastal area or areas most

affected by the designation. 57 The act provides for congressional oversight of the designation

process, allowing the House Committee on Resources and the Senate Committee on Commerce,

Science, and Transportation to issue reports that the Secretary must consider before publishing

notice of an intent to designate.58 Further, no designation may be proposed unless the Secretary

finds the new designation will not have a negative impact on the existing system and there are

sufficient fiscal resources for effectively implementing the management plan and complying with

various site study requirements. Having complied with these procedural requirements, the

Secretary may designate a marine sanctuary upon finding that

(1) the designation will fulfill the purposes and policies of [the NMSA];

(2) the area is of special national significance due to—

(A) its conservation, recreational, ecological, historical, scientific, cultural,

archaeological, educational, or esthetic qualities;

(B) the communities of living marine resources it harbors; or

(3) existing State and Federal authorities are inadequate or should be supplemented to ensure

coordinated and comprehensive conservation and management of the area, including

resource protection, scientific research, and public education;

(4) designation of the area as a national marine sanctuary will facilitate the objectives stated

in paragraph (3); and

(5) the area is of a size and nature that will permit comprehensive and coordinated

conservation and management.59

The act also sets forth a list of factors to consider in making the above findings and requires

agency consultation with interested state and federal authorities as well as other interested

persons.60 A final designation does not take effect until notice of the designation decision, the

availability of a final EIS and management plan, and publication of the final regulations

(...continued)

be included within the sanctuary, the characteristics of the area that give it conservation, recreational, ecological,

historical, research, educational, or esthtic [sic] value, and the types of activities that will be subject to regulation by the

Secretary to protect those characteristics. The terms of designation may be modified only by the same procedures by

which the original designation is made.” 16 U.S.C. § 1434(a)(4).

16 U.S.C. § 1434(a).

16 U.S.C. § 1434(a)(3).

16 U.S.C. § 1434(a)(6).

16 U.S.C. § 1433(a).

16 U.S.C. §§ 1433(b), (b)(2).

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implementing the plan. 61 Designations within the seaward boundaries of a state are also subject to

approval by the Governor.62

Regulation of marine sanctuaries can vary significantly from site to site. The NMSA does not

prescribe specific protections for sites designated under its authority and, in fact, encourages

multiple uses. 63 Thus, unlike national parks, which generally receive stringent ecological

protection, sanctuaries designated under this act frequently allow fishing and shipping activities. 64

As part of the EIS for a proposed sanctuary, the Secretary must prepare and publish a resource

assessment report documenting “present and potential uses of the area,” with an emphasis on

compatible uses such as fishing, energy development, research, and recreational uses.65 Further,

the Secretary must consider “the negative impacts produced by management restrictions on

income-generating activities such as living and nonliving resources development” and “the

socioeconomic effects of sanctuary designation.”66 Fishing interests are afforded special

protection. The Secretary is directed to consider present commercial and recreational fishing

interests when making a designation.67 The appropriate Regional Fishery Management Council68

is given the first opportunity to draft all fishing regulations “as the Council may deem necessary

to implement the proposed designation.”69 The Secretary is directed to accept the Council’s

proposed rules “unless the Secretary finds that the Council’s action fails to fulfill the purposes

and policies of this chapter and the goals and objectives of the proposed designation.”70 Further, a

designation will not terminate “a valid lease, permit, license, or right of subsistence use or access

in existence on the date of designation.”71 The Secretary is empowered to regulate the exercise of

such rights; however, fishing is expressly excluded from the activities requiring a special-use

permit under the act.72

While the act does not provide for specific protections, it does authorize the Secretary to

undertake “all necessary actions” to prevent or respond to damage to a marine sanctuary.73 Such

actions are funded, at least in part, by any damages received from the party responsible for a

particular injury.74 Thus, for instance, when illegal poaching or an oil spill takes place, resources

may be rehabilitated with recovered funds. Liability under the act has been interpreted broadly,

16 U.S.C. § 1434(b)(1).

Id.

16 U.S.C. § 1431(b)(6).

Robin Kundis Craig, Taking Steps Toward Marine Wilderness Protection? Fishing and Coral Reef Marine Reserves

in Florida and Hawaii, 34 MCGEORGE L. REV. 155, 204 (2003).

16 U.S.C. § 1433(b)(3). The National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321 et seq., requires the

preparation of a detailed statement as to the environmental effects of any major federal actions that might significantly

affect the environment.

16 U.S.C. §§ 1433(b)(1)(H), (I).

16 U.S.C. § 1433(b)(1)(C).

See discussion in the next section of this Report.

16 U.S.C. § 1434(a)(5).

Id.

16 U.S.C. § 1434(c).

16 U.S.C. § 1441(g).

16 U.S.C. § 1443(b).

16 U.S.C. § 1443(d).

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with the Eleventh Circuit holding that the NMSA imposes strict liability for injuries to protected

marine resources.75

Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens)76

establishes a “national program for the conservation and management of the fishery resources of

the United States ... to prevent overfishing, to rebuild overfished stocks, to insure conservation,

and to realize the full potential of the Nation’s fishery resources.”77 This law establishes a

regulatory system applicable to management of domestic fisheries within U.S. waters, excluding

the region coastal states control under the Federal Submerged Lands Act. 78

Magnuson-Stevens gives primary responsibility for the nation’s marine resources to eight

regional Fishery Management Councils. 79 For fisheries within their region, the Councils prepare

and implement Fishery Management Plans (FMPs), any subsequent FMP amendments, and

fishery regulations, all subject to prescribed national standards.80 The crux of this act directs that

fishery management, through the above-mentioned FMPs and FMP implementing regulations,

“prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery

for the United States fishing industry.”81 “Optimum yield” is defined as the amount of fish which

(A) will provide the greatest overall benefit to the Nation, particularly with reference to food

production and recreational opportunities, and taking into account the protection of marine

ecosystems;

(B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced

by any relevant social, economic, or ecological factor; and

producing the maximum sustainable yield in such fishery.82

The act also defines “overfished” as the rate at which mortality “jeopardizes the capacity of a

fishery to produce the maximum sustainable yield on a continuing basis.”83

The regulations and FMPs submitted by the regional councils are reviewed by the Secretary of

Commerce and are subject to the Secretary’s approval.84 While Magnuson-Stevens establishes a

United States v. M/V Jacquelyn L, 100 F.3d 1520 (11th Cir. 1996); see also 16 U.S.C. §§ 1443(a)(1), (2).

16 U.S.C. §§ 1801-1882.

16 U.S.C. § 1801(a)(6).

16 U.S.C. §§ 1801(a)(7), 1811; see supra, note 30 and accompanying text.

16 U.S.C. § 1852(a).

16 U.S.C. §§ 1853, 1852(h), 1851(a)(1)-(7).

16 U.S.C. § 1851(a)(1).

16 U.S.C. § 1802(28), as amended by P.L. 104-297, §102.

16 U.S.C. § 1802(29).

16 U.S.C. § 1854. Approval authority has been delegated from the Secretary to the NOAA Administrator. The

Administrator subsequently delegated approval authority to the National Marine Fisheries Service (NMFS) Director,

who in turn delegated to the regional NMFS directors. Each delegation required the subordinate agency or council to

“advise” the delegator prior to approving an FMP or FMP amendment. The Court of Appeals for the D.C. Circuit held

in 1991 that each agency retained approval authority under these delegations. C&W Fish Company, Inc. v. Fox, 931

(continued...)

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basic policy and framework for fishery regulation and management, it does not impose specific,

blanket requirements for such activities. Indeed, it suggests possible courses of action, including a

broad provision authorizing such “measures, requirements, or conditions and restrictions as are

determined to be necessary and appropriate for the conservation and management of the fishery”

in order to accommodate the needs of divergent sites. 85 Typical management techniques include

limiting access for seasonal or more indefinite terms, applying fishing quotas (often referred to as

Total Allowable Catch), imposing gear restrictions (such as regulating the mesh size used in nets

to control the size of fish and/or the species taken), and taxing the amount of fish caught.86

Magnuson-Stevens authorizes additional preservation authorities, empowering regional councils

to ensure compliance with FMPs and regional regulations. The act authorizes regional councils to

close fisheries to all exploitation in order to remedy or prevent overfishing, as defined by the act

and its regulations.87 Regionally applicable regulations and rules geared toward specialized

situations provide more specific guidance as to the procedures for fishery closure.88

Additionally, Magnuson-Stevens requires that regional councils, through FMPs, protect “essential

fish habitat” (EFH), an authority that is, in some respects, comparable to the ability to designate

MPAs.89 The law requires regional councils to identify EFH for species in need of protection and,

with the aid of an ecosystem panel, to develop a plan to conserve and enhance EFH.90 The

National Marine Fishery Service has further refined the EFH statutory requirements in its

regulations. Under these regulations, FMPs must identify those species in need of protection, and

then identify and designate the EFH for that species. 91 While focusing on protecting particular

species, the regulations adopt an “ecosystem approach” to defining EFH, stating “EFH should be

based on ... the quality and quantity of habitat that is necessary to maintain a sustainable fishery

and the managed species’ contribution to a healthy ecosystem.... where ecological productive

capacity is maintained, diversity of the flora and fauna is preserved, and the ecosystem retains the

ability to regulate itself.”92 Once EFH has been designated, regional councils are required to

“prevent, mitigate, or minimize” degradation of the EFH resulting from fishing operations.93 As is

(...continued)

F.2d 1556 (D.C. Cir. 1991). Since the time of that decision, the directives establishing the delegations in question have

been modified, removing certain language relied upon by the court in reaching its conclusion. However, the term

“advise” remains in place and was also integral to the court’s decision that superior agency approval and not mere

notice was required. Subsequent decisions do not appear to have addressed this issue. Thus it remains, for the time

being, unclear whose approval of FMPs or FMP amendments is necessary.

16 U.S.C. §§ 1851(a)(6), 1853(b)(12). The options suggested by Magnuson-Stevens include permitting, specified

zones, overall catch limits, and vessel and gear prohibitions. 16 U.S.C. § 1853.

Fikret Berkes, Robin Mahon, Patrick McConney, Richard Pollnac, and Robert Pomeroy, MANAGING SMALL-SCALE

FISHERIES: ALTERNATIVE DIRECTIONS AND METHODS 6.3.2 (2001).

16 U.S.C. § 1853(a). This section states that FMPs must “specify objective and measurable criteria for identifying

when the fishery to which the plan applies is overfished ... and, in the case of a fishery which the Council or the

Secretary has determined is approaching an overfished condition or is overfished, contain conservation and

management measures to prevent overfishing or end overfishing and rebuild the fishery....” Id. See also 50 C.F.R. §

600.1002.

See, e.g., 50 C.F.R. § 300.29 (eastern Pacific fisheries management); 50 C.F.R. § 622.34 (Gulf EEZ seasonal and/or

area closures); 50 C.F.R. § 600.51 (foreign fishing closure procedures).

16 U.S.C. § 1855(b); 50 C.F.R. § 600.805(a).

16 U.S.C. §§ 1855(b), 1882(a); 50 C.F.R. § 600.805(a).

50 C.F.R. § 600.815.

50 C.F.R.§§ 600.815(a)(2)(ii)(E), 600.810(a).

50 C.F.R. § 600.815(a)(2)(ii).

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Marine Protected Areas (MPAs): Federal Legal Authority

generally true under Magnuson-Stevens, no specific protection or mitigation measures are

required, leaving open a variety of protection options.94

Management flexibility is a key goal under Magnuson-Stevens, with the act and its implementing

regulations recognizing the need for adaptive regulatory techniques. The act requires periodic

review and continuous assessment of FMPs and allows for necessary amendments. 95 FMP

implementing regulations may also be amended “on a timely basis, as new information indicates

the necessity for change in objectives or management measures.”96 In addition, the regulations

also take into account the need for flexibility in fishery management, allowing for certain,

necessary modifications of regulatory techniques as conditions in each fishery require. To this

end, the general regulations issued under Magnuson-Stevens specifically recognize the

uncertainties inherent in the planning process and encourage FMPs to include multiple regulatory

options that can be implemented as needed without amending FMPs or their own implementing

regulations.97

Thus, Magnuson-Stevens, while aimed at sustaining fish stocks and providing broader ecosystem

protection, establishes a framework which can provide for flexible and responsive management of

marine resources. The authority to set optimum yield, catch quotas, and to close fisheries as

necessary to protect fish populations provides regulators with significant tools for implementing

fishery preservation.

Outer Continental Shelf Lands Act

The Outer Continental Shelf Lands Act of 1953, as amended, (OCSLA)98 establishes exclusive

federal jurisdiction over all submerged lands lying seaward and outside of the areas designated by

the Submerged Lands Act as under state jurisdiction.99 The OCSLA authorizes the Secretary of

the Interior to grant mineral leases on Outer Continental Shelf (OCS) lands “to the highest

responsible qualified bidder or bidders by competitive bidding.”100 While providing for orderly

development of OCS mineral resources, the OCSLA provides the Secretary of the Interior with

broad leeway to refrain from offering areas for mineral development.

The Secretary of the Interior is instructed to prepare a comprehensive “oil and gas leasing

program.”101 This program is required to provide for a five-year leasing schedule, documenting

the size, timing, and location of foreseeable leasing activity and must consider “economic, social,

and environmental values of the renewable and nonrenewable resources contained in the outer

Continental Shelf, and the potential impact of oil and gas exploration on other resource values of

the outer Continental Shelf and the marine, coastal, and human environments.”102

50 C.F.R. § 600.815.

16 U.S.C. § 1852(h).

16 U.S.C. § 1853(c)(2); 50 C.F.R. § 600.315(d).

50 C.F.R. § 600.335(c)(2), (d).

43 U.S.C. §§ 1331-1356.

43 U.S.C. §§ 1301, 1331(a).

100

43 U.S.C. §§ 1334(a), 1337.

101

43 U.S.C. § 1344.

102

Id.

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The Secretary of the Interior has broad authority to impose conditions on the development of

OCS resources governed by the OCSLA and may refrain from leasing areas for development

altogether.103 When a lease has been approved, a lessee must submit development plans and

permit applications to the Secretary of the Interior at each development stage.104 The Secretary of

the Interior is directed to disapprove a particular plan or cancel a lease should the Secretary find

that such plan or lease will necessarily result in serious harm to environmental or mineral

resources.105 In addition to whatever environmental or resource impacts the Secretary of the

Interior may consider in reviewing a development plan, development plans must be consistent

with state regulation as provided for under the Coastal Zone Management Act (discussed

below). 106 States may prevent Interior approval of a development plan unless the Secretary of

Commerce overrides a state finding of inconsistency with coastal zone management

regulations.107

Thus, the OCSLA provides authority for ensuring environmentally sensitive mineral

development. Further, in conjunction with other resource-oriented statutes, such as the

Magnuson-Stevens Fishery Conservation and Management Act and state coastal zone

management plans, statutory authority to withhold areas from production108 administratively

could provide significant preservation authority.

Coastal Zone Management Act

As discussed above, the jurisdiction of coastal states, in most cases, extends three geographical

miles from the shoreline under the Federal Submerged Lands Act, giving states primary

regulatory responsibility for preservation and regulation of the nation’s coastal areas.109 The

Coastal Zone Management Act (CZMA)110 was designed to encourage states to enact coastal zone

management plans to coordinate protection of habitats and resources in coastal waters. The act

establishes a policy of preservation alongside sustainable use and development when such

activities are compatible with resource protection.111

103

43 U.S.C. § 1334; The OCSLA states:

The Secretary may at any time prescribe and amend such rules and regulations as he determines to

be necessary and proper in order to provide for the prevention of waste and conservation of the

natural resources of the outer Continental Shelf, and the protection of correlative rights therein,

and, notwithstanding any other provisions herein, such rules and regulations shall, as of their

effective date, apply to all operations conducted under a lease issued or maintained under the

provisions of this subchapter.

104

43 U.S.C. § 1340(c)(1).

105

43 U.S.C. §§ 1340(c), 1334(a)(2) (stating that permanent cancellation of a lease or permit may occur provided that

certain findings are made and appropriate administrative procedures are followed); see also Mobil Oil Exploration and

Producing Southeast, Inc. v. U.S., 530 U.S. 604 (2000); Gulf Oil Corp. v. Morton, 493 F.2d 141 (9th Cir. 1973).

106

43 U.S.C. § 1340(c)(2).

107

Id.

108

It should be noted that if a lease has been granted by the government and subsequent development is not permitted,

the denial of the permit may constitute a compensable taking. See Mobil Oil Exploration and Producing Southeast, Inc.

v. U.S., 530 U.S. 604 (2000).

109

See supra, note 31 and accompanying text.

110

16 U.S.C. §§ 1451-1465.

111

16 U.S.C. § 1452(1), (2).

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Programs under the CZMA are managed by the states, the Department of Commerce through

NOAA, and the Environmental Protection Agency (EPA). Under the act, state coastal zone

management programs that are approved by the Secretary receive federal monetary and technical

assistance. To qualify for federal funds state programs must designate land and water

conservation measures and permissible uses,112 and must address various sources of water

pollution. 113 The CZMA also requires that the federal government and federally permitted

activities comply with state programs. 114

General Preservation Laws

National Monuments

The Antiquities Act115 has been used to designate many national monuments since the law’s

enactment in 1906 and, on several occasions, has been the basis for setting aside marine areas for

protected status. The Act delegates a broad authority to the executive branch and, in relevant part,

states:

The President of the United States is hereby authorized, in his discretion, to declare by public

proclamation historic landmarks, historic and prehistoric structures, and other objects of

historic or scientific interest that are situated upon the lands owned or controlled by the

Government of the United States to be national monuments, and may reserve as a part thereof

parcels of land, the limits of which in all cases shall be confined to the smallest area

compatible with the proper care and management of the objects to be protected.116

While the precise language of the statute might appear to limit monuments to “landmarks,”

“structures,” or other objects which are “situated on the lands” and limits what may be reserved to

“parcels of land,” the Executive’s power under the Antiquities Act has been interpreted quite

broadly.117 The act has been interpreted to cover submerged lands under U.S. jurisdiction. In fact,

submerged lands (e.g., coral reefs) have been included in national monuments on several

occasions, but always, apparently, in connection with protection of some associated surface lands,

such as islands.118 In addition to the submerged lands themselves, the act has been “read to

authorize protection of the water column above submerged lands as well,” provided that a

qualifying object located on the submerged lands could not be adequately protected absent water

column protection.119 This reading of the act was apparently embraced by the Clinton

112

16 U.S.C. § 1455(d)(2), (9)-(12).

16 U.S.C. §§ 1455(d)(16).

114

16 U.S.C. § 1456(c).

115

Act of June 8, 1906, codified at 16 U.S.C. §§ 431-433.

116

16 U.S.C. § 431 (2003) (emphasis added).

117

See generally Sanjay Ranchod, The Clinton National Monuments: Protecting Ecosystems with the Antiquities Act,

25 HARV. ENVTL. L. REV. 535, 540 (2001).

118

See Proclamation No. 2281, 52 Stat. 1541 (April 26, 1938) (Channel Islands National Park); Proclamation No.

2337, 3 C.F.R. 88 (1938-1943) (Santa Rosa Island National Monument); Proclamation No. 3443, 3 C.F.R. 152 (19591963) (Buck Island Reef National Monument); Proclamation No. 7392, 66 Fed. Reg. 7,335, 7,336 (January 17, 2001)

(Buck Island Reef National Monument Expansion); Proclamation No. 7399, 66 Fed. Reg. 7,364 (January 17, 2001)

(Virgin Islands Coral Reef National Monument).

119

Ranchod, supra note 116, at 578-79; see also Cappaert v. United States, 426 U.S. 128, 138-42 (1976); United States

(continued...)

113

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Administration when the President expanded protection for the Buck Island Reef National

Monument, where, in addition to protection for submerged lands themselves, fishing is now

prohibited. 120 A monument designation protecting only water resources, and not an underlying

land-based monument, would seem to strain the language of the statute. It should be noted again,

however, that the act has been interpreted broadly, and it does not appear that there has ever been

a successful challenge to a designation.

An additional issue is whether the U.S. government “owns” or “controls” these submerged lands

as contemplated by the Antiquities Act. This question is complicated by the breakdown of the sea

into various jurisdictional zones. Ownership and control may vary depending on which seaward

area is involved. As discussed above, the United States asserts full sovereignty and jurisdiction

over the territorial sea, regulatory control for certain purposes over the contiguous zone, and

sovereign rights and related jurisdiction over the natural resources, certain economic activities

and environmental protection of the EEZ pursuant to presidential proclamations.

As to those portions of the territorial sea that do not belong to the states, where U.S. jurisdiction

over ocean resources is arguably at its strongest, there has been no definitive resolution as to

whether U.S. authority over the area amounts to “ownership or control” for purposes of the

Antiquities Act. There are, however, several authorities supporting the conclusion that the U.S.

does “own” or “control” at least portions of the territorial sea as contemplated by the Antiquities

Act. First, the Supreme Court has held that the United States owned the lands within the territorial

sea and that the Property Clause of the U.S. Constitution authorized Congress to dispose of such

lands.121 Additionally, prior to President Reagan’s proclamation extending U.S. jurisdiction over

the seas to parallel international law on the subject, the territorial sea was limited to three miles

from the shoreline. During this time, the Supreme Court did state that “[t]here can be no serious

question ... that the President in 1949 had the power under the Antiquities Act to reserve the

submerged lands and waters within the one-mile belts122 as a national monument—since they

were then controlled by the Government of the United States.”123 These holdings support the

concept of federal ownership or control and would most likely be applicable to those areas

extending twelve miles from the shore which are under federal jurisdiction. The Submerged

Lands Act, discussed below, has altered this balance to some extent.

The Submerged Lands Act (SLA)124 would appear to impact federal ownership and control. The

SLA established or confirmed state title to and ownership of “the lands beneath the navigable

waters within the boundaries of the respective states and the natural resources within such lands

and waters....”125 The boundaries of the states were designated as generally including the

(...continued)

v. Oregon, 295 U.S. 1, 14 (1935); United States v. California, 436 U.S. 32, 36 n.9 (1978). See Cameron v. United

States, 252 U.S. 450 (1920); Wyoming v. Franke, 58 F. Supp. 890 (D. Wyo. 1945); Alaska v. Carter, 462 F. Supp. 1155

(D. Alaska 1978); Anaconda Copper Co. v. Andrus, 14 Env’t Rep. Cas. (BNA) 1853 (D. Alaska 1980).

120

Proclamation No. 7392, 66 Fed. Reg. 7,335, 7,336 (January 17, 2001).

121

United States v. California, 332 U.S. 19 (1947); Alabama v. Texas, 347 U.S. 272, 273-74 (1954).

122

The decision speaks in terms of one-mile belts because this was the location of the national monument and

submerged lands at issue in the case. It would not appear, however, that the reasoning behind the decision would be

limited to a one-mile region within the territorial sea. United States v. California, 436 U.S. 32, 34-35 (1978).

123

United States v. California, 436 at 36.

124

Act of May 22, 1953, ch. 65, 67 Stat. 29 (codified at 43 U.S.C. §§ 1301-1303, 1311-1315).

125

43 U.S.C. § 1311.

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submerged lands up to three geographical miles from each state’s coast.126 The federal

government retained, however, “its navigational servitude and rights in and powers of regulation

and control of said lands and navigable waters for the constitutional purposes of commerce,

navigation, national defense, and international affairs....”127 Further, these rights are paramount to,

but do not include, the states’ “proprietary rights of ownership, or the rights of management,

administration, leasing, use, and development of the lands and natural resources....”128

Thus, it is clear that, vis-à-vis the states, the federal government does not now “own” the

submerged lands and waters to the extent that such rights have been ceded to the states, although

the area remains in U.S. ownership vis-à-vis other nations. Determining federal “control” may be

somewhat more elusive. Significant federal controls have been both ceded and retained, and, as

indicated above, the standard for determining “control” does not appear to have been provided by

statute or court decision. However, the Supreme Court’s decision in United States v. California,

which held that the SLA transferred “dominion” over the three mile coastal region to the states

and thus nullified a previously valid designation under the Antiquities Act, may support the

argument that the President would not have authority to designate a national monument in those

areas affected by the SLA.129 Further, at least one federal court decision has held that the

Antiquities Act is inapplicable to state submerged lands, basing its conclusion on United States v.

California.130

Areas within the territorial sea but beyond the region affected by the SLA would appear to remain

subject to federal ownership or control as contemplated by the Antiquities Act.131 Further support

for this position is found in the Outer Continental Shelf Lands Act (OCSLA).132 In describing the

OCSLA, the U.S. Supreme Court has stated that “Congress declared that the United States owned

all submerged land in the continental shelf seaward of the lands granted to the States.”133

However, it would not appear that the Court was interpreting whether the United States had

ownership or a lesser interest in Outer Continental Shelf lands in that decision. As this assertion

would appear to be nonbinding dicta, the extent of the U.S. claim to submerged lands under the

OCSLA remains unclear. Indeed, the OCSLA does not state that the U.S. owns Outer Continental

Shelf submerged lands. The statute defines the Outer Continental Shelf as “all submerged lands

lying seaward and outside of the area of lands beneath navigable waters as defined in section

1301 of this title, and of which the subsoil and seabed appertain to the United States and are

subject to its jurisdiction and control.”134 The nature of any U.S. ownership or jurisdictional

126

43 U.S.C. § 1312; see supra, note 30 and accompanying text.

43 U.S.C. § 1314.

128

Id.

129

United States v. California, 436 U.S. 32, 36 (1978).

130

Subaqueous Exploration & Archaeology Ltd. v. Unidentified, Wrecked and Abandoned Vessel, 577 F. Supp. 597,

610 (D. MD 1983).

131

See United States v. California, 436 U.S. 32, 36 (1978). At the time of the designation, which the court held was

then within the President’s authority, the territorial sea only extended three miles from shore. The subsequent

expansion of the territorial sea would not appear to fundamentally alter the type of control asserted over the ocean

resources, just the geographic scope of control. Thus, it seems reasonable to conclude that the court’s reasoning in

determining that the Antiquities Act applied within the three-mile area would now apply to areas outside the three mile

region but still within the twelve mile boundary.

132

43 U.S.C. §§ 1331 et seq.

133

U.S. v. California, 381 U.S. 139, 148 (1965) (emphasis added).

134

43 U.S.C. § 1331(a) (emphasis added).

127

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interest would also appear to be circumscribed by additional provisions of the OCSLA. The law

states:

It is hereby declared to be the policy of the United States that—

(1) the subsoil and seabed of the outer Continental Shelf appertain to the United States and

are subject to its jurisdiction, control, and power of disposition as provided in this

subchapter.... 135

The use of these terms would appear to indicate that the U.S. interest in Outer Continental Shelf

submerged lands does not amount to ownership by virtue of the OCSLA itself, at least as to those

areas beyond the territorial sea. However, even beyond the territorial sea, U.S. waters may still be

subject to control as contemplated by the Antiquities Act.

As discussed earlier, in its EEZ, a zone beyond its territory, a coastal nation has sovereign rights

to explore, exploit, conserve, and manage marine and seabed resources.136 The Presidential

Proclamation establishing the U.S. EEZ states that the United States claims these rights in the 200

nautical mile area allowable under international law.137 The extent of control claimed by the U.S.

over the EEZ is less extensive than that which it has claimed and exercised over the territorial sea.

Recognition of a contiguous zone, allows for additional regulatory authority over the area

extending 24 nautical miles from the coast for specified purposes. It is not immediately clear if

the levels of regulatory authority in these zones would be a determinative factor in deducing if the

U.S. exercises “control” under the Antiquities Act. However, it should be noted that the United

States claims significant authority, consistent with international law, to regulate the EEZ and

contiguous zone for environmental and economic purposes.138 Thus, whether control claimed

over these submerged lands is sufficient to meet the requirements of the Antiquities Act remains

an unsettled issue.

National Park System

While only Congress itself can designate a national park, the National Park Service Organic

Act139 allows the Secretary of the Interior to recommend areas to Congress for inclusion in the

National Park System. 140 Upon receiving appropriations for study of specific areas,141 themselves

recommended by DOI, the Secretary must determine and report to Congress whether an area

possesses national significance and is suitable and feasible for inclusion in the National Park

System. 142 In determining the eligibility of a site for inclusion, the Secretary must consider nine

factors:

135

43 U.S.C. § 1332 (emphasis added).

Proclamation No. 5030 (March 10, 1983), reprinted in 16 U.S.C. § 1453 note.

137

Id.

138

See UNCLOS III arts. 61-73. Cases deciding the Antiquities Act did not apply beyond the three mile point were

decided before the extension of the territorial sea and claim to the contiguous zone and EEZ. See Treasure Salvors, Inc.

v. Unidentified Wrecked and Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978).

139

16 U.S.C. §§ 1-3.

140

16 U.S.C. § 1a-5.

141

The Secretary may initiate the listing process without specific congressional authorization when such activities cost

less than $25,000. Id. §§ 1a-5(b)(3), (4).

142

16 U.S.C. § 1a-5(c).

136

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(i) the rarity and integrity of the resources;

(ii) the threats to those resources;

(iii) [whether] similar resources are already protected in the National Park System or in other

public or private ownership;

(iv) the public use potential;

(v) the interpretive and educational potential;

(vi) costs associated with acquisition, development and operation;

(vii) the socioeconomic impacts of any designation;

(viii) the level of local and general public support; and

(ix) whether the area is of appropriate configuration to ensure long-term resource protection

and visitor use.143

Thus, while the Secretary is directed to evaluate site suitability and while the enumerated factors

may militate for or against inclusion of any particular area, there is no indication that marine sites

could not be included in the Secretary’s recommendations or the National Park System itself.

Congress, in fact, has broad power to make such designations and has included marine resources,

notably coral reefs, in the National Park System. For example, Congress created the National

Park of American Samoa “to preserve and protect the tropical forest and archeological and

cultural resources of American Samoa, and of associated reefs.”144 Hence, fishing in the

designated areas is prohibited unless for subsistence purposes. 145

Management of parks is delegated by statute to the National Park Service, which is directed to

prepare general management plans. These plans must include, among other things, “measures for

the preservation of the area’s resources....”146 Broad general authority to prescribe rules related to

the management of the National Park System is also granted to the Secretary of the Interior.147

Moreover, the Secretary of the Interior is specifically authorized to promulgate rules “concerning

boating and other activities on or relating to waters located within areas of the National Park

System....”148

Thus, while significant legislative action is required for the designation of any national park,

marine resources are not outside the scope of the system now in place. Furthermore, the broad

management powers generally available under the National Park Service Organic Act and

Congress’ power to further refine marine resource management could provide flexible and

comprehensive regulation.

143

16 U.S.C. § 1a-5(c)(3)(A).

16 U.S.C. § 410qq(b); see also 16 U.S.C. §§ 398 et seq. (Virgin Islands National Park).

145

16 U.S.C. § 410qq-2(b)(2).

146

16 U.S.C. § 1a-7(b).

147

16 U.S.C. § 3.

148

16 U.S.C. § 1a-2(h) (emphasis in original).

144

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Because the United States owns and exercises full sovereignty over its territorial seas,

establishment of a park in that zone would not appear to pose particular jurisdictional problems,

although state ownership, as expressed in the SLA, may require consideration. Designation within

the other zones may prove more complicated. The National Park Service Organic Act makes no

apparent distinction among waters, and hence ocean resources, based on the various zones. In

fact, in 16 U.S.C. § 1a-2(h), the act states that the Secretary of the Interior shall

[p]romulgate and enforce regulations concerning boating and other activities on or relating to

waters located within areas of the National Park System, including waters subject to the

jurisdiction of the United States: Provided, That any regulations adopted pursuant to this

subsection shall be complementary to, and not in derogation of, the authority of the United

States Coast Guard to regulate the use of waters subject to the jurisdiction of the United

States.149

Thus arguably, under the terms of National Park Service Organic Act, designation of a park in the

waters of any zone appears permissible as a form of regulating ocean resources so long as

consistent with the sovereignty or jurisdiction that the United States claims.

The National Wildlife Refuge System

The National Wildlife Refuge System Administration Act of 1966 (NWRSAA)150 authorizes the

Secretary of the Interior, acting through the U.S. Fish and Wildlife Service (FWS), “to administer

a national network of lands and waters for the conservation, management, and where appropriate,

restoration of the fish, wildlife, and plant resources and their habitats within the United States for

the benefit of the present and future generations of Americans.”151 Thus, the act would appear to

contemplate the possibility of marine resources receiving wildlife refuge status. Nothing in the

language of the act would appear to preclude this understanding of the statute. The Refuge

System currently includes lakes and marshes and freshwater swamps, certain coastal areas, and

submerged lands and waters, although it would appear that each ocean refuge is in some way

connected to Hawaiian islands or territories owned by the United States and incorporates the

territorial waters of those possessions. 152 Thus, it would not appear that an independent refuge in

the EEZ has been established to date.

In some settings, it is clear that the jurisdiction of the FWS over marine resources has been

circumscribed. The FWS, as created by the Fish and Wildlife Act of 1956, was composed of the

Bureau of Commercial Fisheries and the Bureau of Sport Fisheries and Wildlife.153 The Bureau of

Commercial Fisheries, which had authority over fishery management, was transferred to the

Department of Commerce and the National Oceanic and Atmospheric Administration by

Executive action.154 The Bureau of Sport Fisheries and Wildlife remained in DOI, although its

149

16 U.S.C. § 1a-2(h) (emphasis added).

16 U.S.C. §§ 668dd-668ee.

151

16 U.S.C. §§ 668dd(a)(1), (2).

152

See http://www.fws.gov/data/NWRdata.htm.

153

Reorg. Plan No. 3 of 1940.

154

Reorg. Plan No. 4 of 1970, 35 Fed. Reg. 15,627 (October 3, 1970). The jurisdiction of the FWS as to marine

resources has changed dramatically over the years. In 1939, the Bureau of Fisheries within the Department of

Commerce was transferred to DOI, and later incorporated into the FWS. Subsequently, the FWS Bureau of

Commercial Fisheries was returned to the Department of Commerce, and renamed the National Marine Fisheries

Service. See George Cameron Coggins and Doris K. Nagel, Nothing Beside Remains: The Legal Legacy of James G.

(continued...)

150

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Marine Protected Areas (MPAs): Federal Legal Authority

authorities related to the protection of migratory marine species of game fish were also

transferred by the Reorganization Plan.155 Under the resulting reorganization, the FWS retained

authority over only those Bureau of Commercial Fisheries functions related to “(1) Great Lakes

fishery research and activities related to the Great Lakes Fisheries Commission, (2) Missouri

River Reservoir research, (3) the Gulf Breeze Biological Laboratory of the said Bureau at Gulf

Breeze, Florida and (4) Trans-Alaska pipeline investigations.”156 Thus, it is relatively clear that

the FWS does not retain significant jurisdiction over ocean resources under the authorities

originally granted to the Bureau of Commercial Fisheries. However, the FWS’s jurisdiction under

other laws would not appear to be affected by the 1970 reorganization. Indeed, its authority to

manage resources as part of the National Wildlife Refuge System was not involved in the transfer

of the duties of the Bureau of Commercial Fisheries and, thus, would appear to remain intact to

the extent provided for in specific congressional authorizations.

There is no single method for national wildlife refuge designation, and various administrative,

executive, and legislative processes have been employed in the past, sometimes in

combination. 157 Generally, refuges have been created through legislation, executive order, or

acquisition of private land.158 Past legislation has either directly designated a refuge or authorized

specific executive action to do so.159

There are two primary statutes guiding FWS regulation of refuge areas, the Refuge Recreation

Act of 1962160 and the National Wildlife Refuge System Administration Act of 1966, significantly

amended in 1997. The Secretary is given broad discretion to regulate activities in refuge areas and

is authorized to “permit the use of any area within the System for any purpose ... whenever he

determines that such uses are compatible with the major purposes for which such areas were

established.”161 The act defines compatible use as “a wildlife-dependent recreational use or any

other use of a refuge that, in the sound professional judgment of the Director, will not materially

interfere with or detract from the fulfillment of the mission of the System or the purposes of the

refuge.”162 FWS regulations further clarify the compatible use standard and allow for, under

specified circumstances, recreational uses of refuges,163 certain economic uses, 164 hunting and

fishing, 165 and subsistence uses.166 The regulations also prohibit certain activities. 167 In general,

(...continued)

Watt’s Tenture [sic] as Secretary of the Interior on Federal Land Law and Policy, 17 B.C. ENVTL. AFF. L. REV. 473, 550

n. 46 (Spring 1990).

155

Reorg. Plan No. 4 of 1970, 35 Fed. Reg. 15627 (Oct 3, 1970).

156

Id.

157

Richard J. Fink, The National Wildlife Refuges: Theory, Practice, and Prospect, 18 HARV. ENVTL. L. REV. 1, (1994).

158

The primary mechanism for expanding the National Wildlife Refuge System is acquisition of private lands. The

most often utilized law of this sort is the Migratory Bird Conservation Act (MBCA) of 1929. In addition, the Fish and

Wildlife Coordination Act, the Fish and Wildlife Act of 1956, and the Endangered Species Act also provide general

acquisition authorities; these statutes rely on annual appropriations from Congress.

159

See, e.g., Act of May 23, 1908, P.L. 136, ch. 192 (codified at 16 U.S.C. § 671).

160

16 U.S.C. §§ 460(k)-460(k)(4).

161

16 U.S.C. § 668dd(d)(1).

162

16 U.S.C. § 668ee(1).

163

50 C.F.R. § 26 (2003) (including special regulations for individual refuges and generally applicable provisions

which cover the process for determining which uses are compatible uses).

164

50 C.F.R. § 29.

165

50 C.F.R. § 32.

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Marine Protected Areas (MPAs): Federal Legal Authority

refuge protection standards would appear to be more permissive than the standards applicable to

national parks and less permissive than standards applicable to multiple-use lands.168

An additional issue is whether the NWRSAA is meant to apply in the territorial sea and the EEZ.

The statute states:

The mission of the System is to administer a national network of lands and waters for the

conservation, management, and where appropriate, restoration of the fish, wildlife, and plant

resources and their habitats within the United States for the benefit of present and future

generations of Americans.169

Units of the Refuge System would presently appear to be confined to areas within the territory of

the United States, including the territorial sea.170 Because of the extent of the U.S. claim to

ownership and sovereign jurisdiction over the territorial sea, the territorial sea could arguably be

considered “within the United States.” On the other hand, it is arguable that “within the United

States” does not include any area beyond the U.S. coastline. However, as multiple refuges

currently contain portions of the territorial sea and as there is little to indicate that the territorial

sea is not meant to be considered a part of the United States for purposes of the NWRSAA, it

would seem that refuge designation within the territorial sea is permissible. Whether designation

in the EEZ or contiguous zone would be permissible under current law is more questionable.

Conforming to international law, the Presidential Proclamation establishing the EEZ, states that

the EEZ “remains an area beyond the territory and territorial sea of the United States in which all

States enjoy the high seas freedoms of navigation, overflight, the laying of submarine cables and

pipelines, and other internationally lawful uses of the sea.”171 As pointed out in Natural Resources

Defense Council v. United States Department of the Navy, “while the EEZ is not part of United

States territory, the United States does enjoy certain ‘sovereign rights’ there, including sovereign

rights ‘for the purpose of exploring, exploiting, conserving and managing natural resources.’”172

Thus, while the United States would likely be empowered to create refuge-like protections for

areas within its EEZ, if Congress deemed it appropriate, it is doubtful that the areas beyond the

territorial sea would qualify as “within the United States” for current NWRSAA purposes.

Marine Preservation Through Executive Order

Near the end of his administration, President Clinton issued Executive Orders 13,178173 and

13,196,174 thereby creating the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve

(...continued)

166

See, e.g., 50 C.F.R. §§ 36.11-36.16; 100.

167

50 C.F.R. §§ 27, 70.

168

Richard J. Fink, The National Wildlife Refuges: Theory, Practice, and Prospect, 18 HARV. ENVTL. L. REV. 1, 27

(1994).

169

16 U.S.C. § 668dd(a)(2) (emphasis added).

170

See http://www.fws.gov/data/NWRdata.htm.

171

Pres. Proc. No. 5030 (March 10, 1983) (emphasis added).

172

Natural Resources Defense Council v. United States Department of the Navy, No. CV-01-07781 CAS(RZX) (C.D.

Cal., September 17, 2002) (internal citations omitted).

173

Exec. Order No. 13,178, 65 Fed. Reg. 76,903 (December 7, 2000).

174

Exec. Order 13,196, 66 Fed. Reg. 7,395 (January 23, 2001) (finalizing and slightly modifying EO 13,178 after

(continued...)

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Marine Protected Areas (MPAs): Federal Legal Authority

(NHIR). The reserve covers approximately 99,500 square nautical miles, making it substantially

larger than other marine sanctuaries. NHIR would appear to be the first U.S. designation of its

kind, i.e. the creation of a “marine reserve” via executive order. Like other MPAs discussed in

this report, the reserve surrounds certain U.S.-owned Pacific islands.

Presidential designation of the NHIR was specifically authorized in the 2000 amendments to the

National Marine Sanctuaries Act,175 which were enacted shortly before President Clinton issued

the NHIR Orders. The amended Act also directs the Secretary of Commerce, upon the creation of

a reserve, to initiate its designation as a marine sanctuary under the National Marine Sanctuaries

Act. 176 Further, the amendments state that, in the period before designation of the reserve as a

marine sanctuary, the NHIR be managed in a manner consistent with the purposes of the National

Marine Sanctuaries Act. 177 These requirements are reflected in the Executive Orders as well.178

Thus far, the NHIR has been designated and the process for redesignation as a marine sanctuary

has begun as well. It should be noted, however, that unless the provisions of an executive order

are enacted into law, an executive order can be delayed, abandoned, or expressly overturned by a

later order. The congressional authorization here does not compel a designation, and while it

authorizes the creation of a reserve, it would not appear to imbue the Clinton Orders with any

additional force of law.

The regulatory authority exercised over the NHIR pursuant to the Executive Orders derives from

several preexisting legal sources. Generally, an executive order is used by the President to direct

some action within the executive branch. Executive orders may be based upon the President’s

constitutional powers and/or upon specific statutory authority. The Orders at issue here cite

several authorities in support of the President’s designation, including the Constitution, the

NMSA, Magnuson-Stevens, the Marine Protection, Research, and Sanctuaries Act, the CZMA,

the Endangered Species Act, the Marine Mammal Protection Act, the Clean Water Act, the

National Historic Preservation Act, the NWRSAA, and “other pertinent statutes.”179 Thus,

President Clinton directed the federal agencies to protect the NHIR as authorized by the

applicable statutes. The Executive Orders would not appear to authorize or establish any new

regulatory capabilities that were not available under preexisting law.

The Orders themselves establish certain baseline protections for the designated area. They limit

development of the reserve’s resources and generally prohibit oil and gas exploration and

production, anchoring on coral reefs, alteration of the seabed, discharges into the reserve, and,

under certain circumstances, the taking of biological resources.180 The Orders permit certain

categories of commercial and recreational fishing to continue at current levels in most portions of

the reserve, while establishing eight Preservation Areas where permitted fishing may temporarily

take place, and seven Preservation Areas where no resource development is allowed. 181

(...continued)

public comment.)

175

Act of November 13, 2000 P.L. 106-513; see also Act of December 21, 2000, P.L. 106-554, § 1(a)(4).

176

Id.

177

Id. at § 6(g), codified at 16 U.S.C. § 6401 Note.

178

See, e.g., Exec. Order No. 13,178; Exec. Order 13,196.

179

Exec. Order 13,178 preamble.

180

Exec. Order No. 13,178 § 7(b)(1)-(5); Exec. Order 13,196, § 3(4).

181

Exec. Order 13,196 §§ 3-4, amending Exec. Order 13,178 §§ 7-8.

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Marine Protected Areas (MPAs): Federal Legal Authority

The Orders also provide for additional, more detailed management and conservation measures to

be developed by the Secretary of Commerce in conjunction with the Secretary of the Interior, the

State of Hawaii, the Western Pacific Fishery Management Council (WesPac),182 and the Coral

Reef Ecosystem Reserve Council. This group is directed to develop general Reserve Management

Principles, conservation measures, and a Reserve Operations Plan. The basic regulatory authority

contained in several of the most relevant statutory authorities has been described above; however,

several additional regulatory authorities deserve attention here: namely the Endangered Species

Act, the Marine Mammal Protection Act, the Clean Water Act, and the Ocean Dumping Act.

The Endangered Species Act (ESA)183 prohibits the “taking”184 of any threatened or endangered

species and generally prohibits federal agencies from harming these species though direct action

or through federally funded activities. 185 Species protection under the ESA has been interpreted to

include the designation and protection of critical habitat.186 Thus, significant protections for both

individual species and their habitat may be available under the ESA. However, the ESA allows

for “take permits,” which could include allowances for harm to individuals or critical habitat if it

is determined that the taking is incidental to a lawful activity and will not endanger the species.187

The Marine Mammal Protection Act (MMPA)188 is also cited as an authority for the President’s

reserve designation. Unlike the ESA and its protections for critical habitat designation, the MMPA

addresses only species management. The law generally prohibits the taking of marine mammals

but allows for incidental takings during fishing operations. It does authorize the Secretary of

Commerce to close fisheries or revoke individual permits if the terms of incidental take

restrictions are not followed. 189

The Clean Water Act (CWA)190 prohibits discharging pollutants into ocean waters when such

discharges might cause adverse impacts to the marine environment. 191 The act directs the

Administrator of the EPA to “promulgate guidelines for determining the degradation of the waters

of the territorial seas, the contiguous zone, and the oceans,” incorporating “the effect of disposal

of pollutants on marine life.”192 Using these guidelines, the appropriate Regional, State, or Tribal

Director 193 must determine if any pollutant discharge will unreasonably degrade194 the marine

182

This is the applicable regional fishery council under Magnuson-Stevens.

16 U.S.C. §§ 1531-1544 (1994).

184

“Take” means “to harass, harm pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any

such conduct,” and includes significant habitat modification or degradation that actually kills or injures wildlife. 16

U.S.C. § 1453(19).

185

16 U.S.C. §§ 1538(a), 1536(a).

186

See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 708 (1995).

187

16 U.S.C. § 1536(b)(4).

188

Marine Mammal Protection Act, 16 U.S.C. §§ 1361- 1421.

189

16 U.S.C. § 1387.

190

33 U.S.C. §§ 1251 et seq.

191

33 U.S.C. § 1343(a), (c).

192

Id.

193

According to EPA regulations, the term “Director” may have several different meanings depending upon the

situation. The regulations state:

Director means the Regional Administrator or the State Director, as the context requires, or an

authorized representative. When there is no “approved State program,” and there is an EPA

administrative program, “Director” means the Regional Administrator. When there is an approved

State program, “Director” normally means the State Director. In some circumstances, however,

(continued...)

183

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Marine Protected Areas (MPAs): Federal Legal Authority

environment and can issue a discharge permit only upon a finding that unreasonable degradation

will not occur.195

Title I of the Marine Protection, Research and Sanctuaries Act (MPRSA),196 commonly referred

to as the Ocean Dumping Act, supplements the CWA’s discharge limitations and prohibits the

“dumping in ocean waters of any material which would adversely affect human health, welfare,

or amenities, or the marine environment, ecological systems, or economic potentialities,” without

appropriate authorization.197 The MPRSA authorizes EPA to designate specific areas where

dumping is completely prohibited and to issue discharge permits, similar to those under the

CWA.198 Permit issuance is governed by the CWA’s ocean discharge criteria and the London

Dumping Convention. 199

Additionally, while the Executive Orders direct coordinated management and interagency

cooperation, the overlapping agency jurisdiction could result in some level of tension. While in

most instances the Executive Orders appear to vest primary management authority in the

Secretary of Commerce pursuant to congressional authorization, the Secretary would not appear

to have primary jurisdiction over portions of the NHIR. The reserve boundaries are established in

Executive Order 13,178, stating:

The Reserve shall be adjacent to and seaward of the seaward boundaries of the State of

Hawaii and the Midway Atoll National Wildlife Refuge, and shall overlay the Hawaiian

Islands National Wildlife Refuge to the extent that it extends beyond the seaward boundary

of the State of Hawaii.200

Thus, a portion of the NHIR includes a portion of a National Wildlife Refuge. The Secretary of

Commerce’s management authority may be problematic in this area because of a general statutory

requirement that the National Wildlife Refuge System be managed by the Secretary of the Interior

(...continued)

EPA retains the authority to take certain actions even when there is an approved State program.

(For example, when EPA has issued an NPDES permit prior to the approval of a State program,

EPA may retain jurisdiction over that permit after program approval, see § 123.1.) In such cases,

the term “Director” means the Regional Administrator and not the State Director. 40 C.F.R. §

122.2.

194

Unreasonable degradation is defined as “(1) Significant adverse changes in ecosystem diversity, productivity and

stability of the biological community within the area of discharge and surrounding biological communities, (2) Threat

to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or (3)

Loss of esthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived

from the discharge.”40 C.F.R. § 125.121(e) (2003).

195

40 C.F.R. §§ 125.122, 125.123 (2003).

196

Act of October 23, 1972, P.L. 92-532 (codified at 33 U.S.C. §§ 1401-1445).

197

33 U.S.C. §§ 1411(a)(1)-(2), 1402.

198

33 U.S.C. § 1412(c).

199

33 U.S.C. §§ 1343(c), 1412(a).

200

Exec. Order 1378 at § 3. It should also be noted that the precise boundaries of the Hawaiian Islands National

Wildlife Refuge are relatively unclear. The Refuge was established by President Theodore Roosevelt in 1909 by

Executive Order and subsequently included in the National Wildlife Refuge System. The boundaries are not precisely

described in the original Executive Order and would appear to be based solely upon a crudely drawn map. The FWS

has apparently established working boundaries, based on practical enforcement of its regulations; however, should

jurisdictional authority among the agencies become an issue, precise delineation of refuge boundaries may become

necessary.

Congressional Research Service

Marine Protected Areas (MPAs): Federal Legal Authority

through the FWS.201 However, as indicated in the legislative history surrounding the development

of this jurisdictional limitation and the cases interpreting it, DOI may delegate some of its

responsibilities and coordinate management activities with state or federal agencies. 202 The courts

have indicated that the level of discretion that can be vested in other entities with regard to refuge

management is limited and that DOI must retain ultimate authority and responsibility for refuge

resources.203

It is arguable that the law authorizing presidential designation of the NHIR had some impact on

the general placement of refuge authority in DOI. The law states that the reserve is “to be

managed by the Secretary of Commerce.”204 This could be interpreted as an authorization for the

President to effectively place primary management authority for a Wildlife Refuge in the hands of

the Secretary of Commerce should the President choose to include such an area in the reserve. As

described above, this could result in the application of the generally weaker reserve protective

standards to the refuge. On the other hand, it is arguable that had Congress intended such a result,

it would have spoken to this issue directly. There is a general presumption that Congress will

specify its intention that a new statute is meant to supersede an earlier one. 205 Further, courts will

generally read a subsequent enactment as an amendment or repeal only when the conflict between

two provisions is irreconcilable or the subsequent enactment is clearly intended as a substitute.206

Applying this general canon of statutory construction would appear to favor an interpretation of

the reserve designation provision that leaves the primary refuge management authorities with

FWS alone. Still, the statute arguably authorizes cooperative management efforts among the

relevant agencies, even if primary authority remains with DOI.

The Executive Orders would not appear to definitively clarify where management authority rests.

They direct that “the Secretary of Commerce, or his designee, ... manage the Reserve,” and that

the management system facilitate coordination among the state and federal agencies involved.207

These statements appear to indicate an intention that the Secretary of Commerce have ultimate

regulatory responsibility. On the other hand, there is some indication that regulatory authority

over the Hawaiian Islands National Wildlife Refuge is separate from the rest of the reserve. For

example, the provisions that guide the preparation of the Reserve Operations Plan (ROP) state

that the ROP must provide for coordinated management between the Reserve and the Hawaiian

Islands National Wildlife Refuge. 208 Similarly, the Orders direct the Secretary of Commerce to

negotiate any necessary Memoranda of Understanding with the Secretary of the Interior and the

state of Hawaii regarding management coordination between the reserve and the Wildlife

Refuge. 209 Thus, arguments could be made that ultimate Refuge authority has been placed in

either of the agencies by the Executive Orders. However, as described above, should a court find

201

16 U.S.C. § 668dd(a)(1); see also S. Rep. No. 94-593, at 2 (1976)(indicating that split jurisdiction should be avoided

when possible).

202

H.Rept. 104-218, at 12 (1995).

203

Calhoun County v. United States, 132 F.3d 1100, 1102 (5th Cir. 1998); Bunch v. Hodel, 793 F.2d 129 (6th Cir.

1986); Trustees for Alaska v. Watt, 524 F. Supp. 1303, 1304-05 (D. Alaska 1981).

204

Act of December 21, 2000, P.L. 106-554, § 1(a)(4) (Div. B, Title I, § 144(f)); Act of November 13, 2000, P.L. 106513, § 6(g).

205

United States v. Fausto, 484 U.S. 439, 453 (1988).

206

Watt v. Alaska, 451 U.S. 259, 266 (1981); Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

207

Exec. Order 13,178 at § 4.

208

Id. at § 5(b)(1).

209

Id. at § 5(d).

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Marine Protected Areas (MPAs): Federal Legal Authority

that the congressional authorization of the creation of a reserve was not intended to supersede the

general requirement that refuge authority rest in DOI, an Executive Order would not appear to be

the appropriate vehicle for redistributing management responsibilities, except to the extent

afforded by established case law.

The enabling statute and the Executive Orders also leave the role of the regional fishery

management council, WesPac, vis-à-vis the other regulatory authorities relatively vague. It would

appear, however, that WesPac is intended to remain an active regulator under Magnuson-Stevens

and continue with such activities as it has heretofore undertaken. As described above, WesPac, as

the regional fishery management council, is primarily responsible for the development of fishery

management plans in accordance with Magnuson-Stevens, subject to approval by the Secretary of

Commerce. 210 WesPac has apparently voiced some concern that certain requirements contained in

the Executive Orders and the NHIR regulations may violate the Magnuson Act by preventing

resource utilization as permitted under law.211 This opinion may result from an understanding that

Magnuson-Stevens generally requires fishery management plans to include conservation and

management measures that achieve “optimum yield” from each fishery while preventing

overfishing.212 These management measures are to be based on the best scientific information

available. 213 Thus, it is conceivable that the base restrictions required by the Executive Orders

could conflict with the levels of sustainable fishing as determined by the regional council.

However, the maximum sustainable yield from any fishery is to be reduced by the relevant social,

economic, and ecological factors.214 Further, conservation and management activities are required

to rebuild, restore, or maintain fishery resources and the marine environment. 215 It would appear

to be within the President’s authority to direct fishery management so that conservation of the

marine environment is the primary objective. If, however, specific restrictions on resource

exploitation could not be supported as necessary by scientific information, as required by law,

additional fishing may have to be permitted, unless the more stringent restrictions could be based

on some superseding authority.

Conclusion

In light of the recent publication of the Revised Draft Framework for Developing the National

System of Marine Protected Areas and the introduction of H.R. 21 in the 110th Congress, it is

important to understand the statutory and regulatory background for the designation of MPAs. A

series of statutory authorities exist for the creation and management of MPAs. The National

Marine Sanctuaries Act would appear to be directly aimed at the creation of MPAs, although, in

practice, the protections provided areas designated under its authority have not necessarily been

extensive. Other legislation, such as the Coastal Zone Management Act and the MagnusonStevens Fishery Conservation and Management Act, also have the potential to protect marine

resources in a fashion similar to MPAs. More general preservation laws may also be an option for

the protection and management of marine resources. The Antiquities Act, the National Park

210

16 U.S.C. § 1854(a)(3).

Jennifer Van Trump, Protecting the ‘Rainforests of the Sea’: Creating the Northwestern Hawaiian Islands Coral

Reef Ecosystem Reserve By Executive Order, 11 PENN STATE ENVT’L L. R. 273, 284 (2003).

212

16 U.S.C. § 1851(a)(1).

213

16 U.S.C. § 1851(a)(2).

214

16 U.S.C. § 1802(28).

215

16 U.S.C. § 1802(5).

211

Congressional Research Service

Marine Protected Areas (MPAs): Federal Legal Authority

Service Organic Act, and the National Wildlife Refuge System Administration Act appear to

generally allow the designation of marine resources as national monuments, national parks, or

national wildlife refuges. However, use of these various conservation authorities for the creation

of an MPA would carry concerns peculiar to each particular statute and would be limited by the

extent of U.S. jurisdiction over offshore lands and waters. Their application to the territorial sea

would generally appear permissible. Application beyond the territorial sea is less certain.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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