United States marine national monuments are a world legacy
While the National Oceanic and Atmospheric Association and many others use “marine national monument” to refer to the four large Pacific protected areas created in 2006 and 2009, U.S. presidents have been using the Antiquities Act to protect marine ecosystems since 1961, when President Kennedy created the Buck Island National Monument in the Virgin Islands.
Like the larger marine national monuments currently under scrutiny, the Buck Island monument includes an island but is mostly underwater. Like most of the Pacific marine national monuments, moreover, it protects a tropical coral reef — arguably the most endangered type of ecosystem in the world. Through the Antiquities Act, the United States has protected a series of ocean wonders that may become the last surviving examples of their kinds, and we should reinforce — not undermine — this legacy gift to the world.
Until President Donald Trump initiated an unprecedented review of national monuments, marine and coastal national monuments attracted little national attention. Now, however, much time and energy is being used to assess their legal and scientific viability.
Can Trump rescind national monuments under the Antiquities Act? No. Congress explicitly gave presidents the authority to create national monuments but not to rescind them, and Congress has the last word in this area.
Does the federal government really “control” the Outer Continental Shelf and marine waters, as the Antiquities Act requires? Absolutely. The federal government has regulated offshore oil and gas production on the Outer Continental Shelf more than 3 nautical miles out to sea since 1953 pursuant to the Outer Continental Shelf Lands Act, and it has regulated fisheries up to 200 nautical miles off our coasts since 1976 pursuant to the Magnuson-Stevens Fishery Conservation and Management Act. And the United States further exercises control of this sphere based on offshore national security and defense concerns.
Which brings us to the scientific question: Do marine national monuments really have to be so darn big? Well, yes. Marine systems are by nature fluid and dependent upon distant connections. For example, despite its size, the Papahanaumokuakea Marine National Monument protects only part of the Hawaiian archipelago, a system that geologically and ecologically includes the inhabited main Hawaiian Islands as well. The ecological interconnections that sustain the unique habitat and marine life within the monument cover vast areas.
For instance, like most marine systems in the Pacific, this archipelago is sensitive to the oscillations between El Nino (warmer water) and La Nina (colder water) events, even though these events start near the equator, which is 1,940 miles away from Midway, located toward the northern end of the monument.
The Kuroshio Current carries larvae from reefs in Taiwan and Japan to the monument’s western atolls and islands, creating a direct physical and biological connection between the Hawaiian archipelago and eastern Asia. Viewed from this perspective, even the expanded monument boundaries still truncate the full functional dynamics of the monument’s object of interest. Providing adequate protection for those objects can simply not occur within a smaller area.
There is an even bigger picture to keep in mind, however. The world is losing its coral reefs, dramatized over the last three years by the progressive death from coral bleaching of the Great Barrier Reef in Australia. Coral bleaching occurs when ocean temperatures rise, as has been occurring worldwide because of climate change. Even so, the Great Barrier Reef’s current tragedy took its scientists, who had projected that such impacts would not occur for 30 years or so, by surprise.
The Papahanaumokuakea Marine National Monument protects one of the last fairly healthy tropical coral reef ecosystems, which sits as far pole-ward and into colder waters as these reefs can currently stretch. As such, the United States is protecting what may turn out to be the last functional tropical coral reef system on the planet — a legacy we should be proud to continue rather than eager to dismantle.
* Robin Kundis Craig teaches environmental law and ocean and coastal law at the University of Utah S.J. Quinney College of Law.