Former Conservation Law Foundation Staff Attorney Roger Fleming, who is now a part of the Oceans litigation team at EarthJustice, details how the National Monument establishment process through the Antiquities Act serves the public’s interest.
By Roger Fleming
One hundred-nine years ago this week President Teddy Roosevelt created the first national monument, protecting the magnificent Devil’s Tower formation in Wyoming. Since then, sixteen presidents – eight from each party — have used the power granted by Congress in the Antiquities Act to create more than 115 monuments protecting the nation’s natural and historic heritage on land and at sea, from the Statue of Liberty to the Marianas Trench.
Now we have a chance to see that proud tradition in action again to protect a national treasure right here in our backyard with a Marine National Monument off New England’s coast. On September 15, 2015, NOAA hosted a town hall meeting in Providence, Rhode Island, in order to discuss the possible establishment of a monument that could include deep sea Coral Canyons and Seamounts and Cashes Ledge. Scientists have identified these areas as deserving of special protection due to unique undersea terrain and nutrient upwelling that supports cold water coral gardens, our largest cold water kelp forest, fish, marine mammals, seabirds, and more.
A broad coalition of scientists, small business owners, fishermen, faith groups, civic leaders, and conservationists have sent a clear message that we need to save these ecologically important places before irreparable damage is done, so that future generations can enjoy their unimaginable beauty and a healthier marine environment. That is exactly what the Antiquities Act is intended to do.
Unfortunately, opponents in the fishing industry have attempted to muddy the waters with unfounded concerns about the “process” being used to provide protection for these areas.
Opponents who spoke at NOAA’s town hall event argued that the monument designation process is undemocratic, and that decisions about how to manage these areas should be left to the New England Fishery Management Council, which oversees fishing in the region’s federal waters.
Many who gave comment also complained about a lack of opportunity for public comment on the monument designation. Let that sink in for a moment: complaints about a lack of public comment were made while giving public comment.
Let’s set the record straight on a few things.
First, the monuments process is democratic.
President Obama has the authority to establish permanent protection of these areas through designation of a monument under the Antiquities Act. This Act is another tool provided to the democratically-elected president by our democratically-elected Congress to preserve areas identified as historic landmarks and areas of scientific interest before it is too late – before the opportunity to save a valuable resource is lost. This president’s predecessor, George W. Bush, created four monuments in the Pacific Ocean covering a total of 860,000 square kilometers. None exist in the Atlantic Ocean.
Second, there has been—and continues to be—public input into the process.
Already in this nascent proposal for a new marine monument there has been a town hall meeting where anyone wishing to do so was given the opportunity to speak and an ongoing public comment period through which over 160,000 people have already written in support of saving these important places. Arguably, the Obama administration has gone out of its way to provide opportunities to be heard on a proposal, in circumstances where it is not at all required to by law.
Leading up to the monument proposal, there were years of study of these areas and numerous opportunities for the public and other stakeholders to provide relevant scientific, economic, and other information, and to otherwise make their views known as possible protections were discussed in different venues, including the fishery management process. Because the President’s decision must be based on science, this will all be considered.
Third, the New England Fishery Management Council has a checkered history regarding public and scientific involvement, and an even worse record as a steward of the public’s ocean resources.
The fishery management process remains dominated by the fishing industry and fails to adequately consider broader public interests. One need only look to the status of New England’s iconic fish species, the Atlantic cod, for evidence of this. Cod stocks have collapsed and the region’s groundfishing sector was declared a disaster, costing taxpayers millions of dollars. The record clearly shows that New England’s Council ignored repeated warnings from science about the deteriorating condition of cod stocks until it was far too late. Just last year more than a hundred-forty scientists and more than 150,000 members of public implored the council to protect more habitat for these and other depleted fish. But the Council instead voted to slash the amount of essential fish habitat protected by more than 60 percent.
The Council did succeed in identifying the ecological, economic, and social importance of the Cashes Ledge Closed area, and has closed the area to most bottom fishing. However, this action came only after an earlier vote to strip existing protections from that area. Further, the limited protections in place leave nearly all of the area open to other fishing, including the East Coast’s largest fishing vessels – industrial midwater trawlers – which are capable of stripping the area of essential forage fish, catching non-targeted fish, mammals and other marine animals as bycatch, and are known to contact the bottom when fishing. The protections in place are not permanent and could be removed at any time through the fishery management process.
Similarly, the New England canyons and seamounts have been identified by the Council as important ecological areas but they have received very few protections which are not worthy of their unique ecological importance.
Finally, this is not just about fishing.
New England’s “Fishery Management” Council has no authority to address other potential threats that could surface for the area, such as marine mining, drilling, or other industrial activity. Unlike the tenuous, partial protections now in place for Cashes Ledge and New England’s Canyons and Seamounts, a national monument provides permanent protection against all types of harmful extraction.
Such protection would benefit critically endangered right whales, which are known to depend on Cashes Ledge, fantastic deep-sea corals in the Canyons and Seamounts, and the important sea birds that feed on the surface of these rich waters. Many coastal businesses, including many fishermen, support the proposal because they recognize there will also be broad economic benefits that will result from protecting these unique treasures and a healthier marine environment.
These areas belong to the U.S. public, and overwhelming evidence shows that the monument process is fair and that a marine monument would best serve the public’s interests now and into the future.