Marine Protected Areas (MPAs): Federal Legal Authority
Released: 2009-04-28T00:00:00

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. 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.

Recently there has been debate over whether the development of a more comprehensive system of marine resource preservation is appropriate. 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; the Magnuson-Stevens Fishery Conservation and Management Act; and the Coastal Zone Management Act.

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." 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. The Executive Order does not 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." 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."

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. 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. 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."

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. 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" from a nation's coast, the territorial sea of that nation, in which the coastal nation may claim full ownership and sovereignty over the waters, seabed, and the subsoil. 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. 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. 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.

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.

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

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.

Additionally, should UNCLOS III be ratified, its many marine habitat provisions, which require parties to protect and preserve the marine environment, may provide the President and Congress with additional authority for the regulation of marine resources in order to execute the treaty 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." 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. 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." 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. 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.

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 1953 assured coastal states title to the lands beneath coastal waters in an area stretching, in general, three "geographical miles" from the shore. Thus states may regulate the coastal waters within this area, subject to federal regulation for "commerce, navigation, national defense, and international affairs ..." and the power of the federal government to preempt state law. The remaining outer portions of waters over which the United States exercises jurisdiction are federal waters.

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. 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. 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" 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." 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. 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. 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. 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."

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." The court did 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. 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), 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. 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 ). Thirteen national marine sanctuaries, covering approximately 18,000 square miles in the Atlantic and Pacific Oceans, have been established. 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.

Designation of national marine sanctuaries under the act can take place by act of Congress or administratively. 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...." 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. The Secretary must also furnish the "terms of the proposed designation," the draft management plan, proposed regulations, the draft Environmental Impact Statement (EIS), and cost estimates, as well as other supporting documents. The law requires a public hearing to be held in the coastal area or areas most affected by the designation. 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. 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

(C) its resource or human-use values;

(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.

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. 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 implementing the plan. Designations within the seaward boundaries of a state are also subject to approval by the Governor.

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. Thus, unlike national parks, which generally receive stringent ecological protection, sanctuaries designated under this act frequently allow fishing and shipping activities.

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. 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." Fishing interests are afforded special protection. The Secretary is directed to consider present commercial and recreational fishing interests when making a designation. The appropriate Regional Fishery Management Council is given the first opportunity to draft all fishing regulations "as the Council may deem necessary to implement the proposed designation." 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." 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." 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.

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. Such actions are funded, at least in part, by any damages received from the party responsible for a particular injury. 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, with the Eleventh Circuit holding that the NMSA imposes strict liability for injuries to protected marine resources.

Magnuson-Stevens Fishery Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) 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." 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.

Magnuson-Stevens gives primary responsibility for the nation's marine resources to eight regional Fishery Management Councils. 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. 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." "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

(C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.

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."

The regulations and FMPs submitted by the regional councils are reviewed by the Secretary of Commerce and are subject to the Secretary's approval. While Magnuson-Stevens establishes a 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. 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. 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. Regionally applicable regulations and rules geared toward specialized situations provide more specific guidance as to the procedures for fishery closure.

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. 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. 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. 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." Once EFH has been designated, regional councils are required to "prevent, mitigate, or minimize" degradation of the EFH resulting from fishing operations. As is generally true under Magnuson-Stevens, no specific protection or mitigation measures are required, leaving open a variety of protection options.

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. FMP implementing regulations may also be amended "on a timely basis, as new information indicates the necessity for change in objectives or management measures." 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.

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) 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. 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." 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." 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."

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. 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. 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. 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). 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.

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 production 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. The Coastal Zone Management Act (CZMA) 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.

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, and must address various sources of water pollution. The CZMA also requires that the federal government and federally permitted activities comply with state programs.

General Preservation Laws

National Monuments

The Antiquities Act 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.

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. 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. 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. This reading of the act was apparently embraced by the Clinton 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. 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. 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 belts as a national monument—since they were then controlled by the Government of the United States." 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) 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...." The boundaries of the states were designated as generally including the submerged lands up to three geographical miles from each state's coast. 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...." 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...."

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. 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 .

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. Further support for this position is found in the Outer Continental Shelf Lands Act (OCSLA). 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." 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." The nature of any U.S. ownership or jurisdictional 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 ....

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. 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. 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. 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 Act allows the Secretary of the Interior to recommend areas to Congress for inclusion in the National Park System. Upon receiving appropriations for study of specific areas, 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. In determining the eligibility of a site for inclusion, the Secretary must consider nine factors:

(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.

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." Hence, fishing in the designated areas is prohibited unless for subsistence purposes.

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...." Broad general authority to prescribe rules related to the management of the National Park System is also granted to the Secretary of the Interior. 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...."

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.

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.

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) 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." 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. 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. 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. The Bureau of Sport Fisheries and Wildlife remained in DOI, although its authorities related to the protection of migratory marine species of game fish were also transferred by the Reorganization Plan. 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." 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. Generally, refuges have been created through legislation, executive order, or acquisition of private land. Past legislation has either directly designated a refuge or authorized specific executive action to do so.

There are two primary statutes guiding FWS regulation of refuge areas, the Refuge Recreation Act of 1962 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." 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." FWS regulations further clarify the compatible use standard and allow for, under specified circumstances, recreational uses of refuges, certain economic uses, hunting and fishing, and subsistence uses. The regulations also prohibit certain activities. In general, 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.

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.

Units of the Refuge System would presently appear to be confined to areas within the territory of the United States, including the territorial sea. 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." 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.'" 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 13,178 and 13,196, thereby creating the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve (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, 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. 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. These requirements are reflected in the Executive Orders as well. 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." 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. 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.

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), 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) prohibits the "taking" of any threatened or endangered species and generally prohibits federal agencies from harming these species though direct action or through federally funded activities. Species protection under the ESA has been interpreted to include the designation and protection of critical habitat. 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.

The Marine Mammal Protection Act (MMPA) 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.

The Clean Water Act (CWA) prohibits discharging pollutants into ocean waters when such discharges might cause adverse impacts to the marine environment. 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." Using these guidelines, the appropriate Regional, State, or Tribal Director must determine if any pollutant discharge will unreasonably degrade the marine environment and can issue a discharge permit only upon a finding that unreasonable degradation will not occur.

Title I of the Marine Protection, Research and Sanctuaries Act (MPRSA), 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. The MPRSA authorizes EPA to designate specific areas where dumping is completely prohibited and to issue discharge permits, similar to those under the CWA. Permit issuance is governed by the CWA's ocean discharge criteria and the London Dumping Convention.

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.

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 through the FWS. 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. 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.

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." 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. 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. 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. 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. 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. 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 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. 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. 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. These management measures are to be based on the best scientific information available. 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. Further, conservation and management activities are required to rebuild, restore, or maintain fishery resources and the marine environment. 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 110 th 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 Magnuson-Stevens 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 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.