Marine Protected Areas (MPAs): Federal Legal Authority
Marine Protected Areas (MPAs):
Federal Legal Authority
Updated October 22, 2008
American Law Division
Marine Protected Areas (MPAs):
Federal Legal Authority
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-a-vis other nations and vis-a-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
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.
In troduction ......................................................1
U.S. Jurisdiction Over Marine Resources...............................3
The Territorial Sea.............................................5
The Exclusive Economic Zone...................................6
The Contiguous Zone...........................................6
Current Law Specific To Marine Environments..........................7
National Marine Sanctuaries Act..................................7
Magnuson-Stevens Fishery Conservation and Management Act........10
Outer Continental Shelf Lands Act...............................13
Coastal Zone Management Act..................................15
General Preservation Laws.........................................15
National Park System..........................................19
The National Wildlife Refuge System.............................21
Marine Preservation Through Executive Order......................24
Marine Protected Areas (MPAs):
Federal Legal Authority
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 on1
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.2
Recently there has been debate over whether the development of a more3
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
1 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.
2 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/].
3 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.
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 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
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
4 Act of October 23, 1972, P.L. 92-532 (codified at scattered sections of titles 16 and 33).
5 16 U.S.C. §§ 1801-1882.
6 16 U.S.C. §§ 1451-1465.
7 Exec. Order No. 13,158, 65 Fed. Reg. 34,909 (May 26, 2000).
9 Id. at § 3 (emphasis added).
10 Id. at § 7.
11 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.
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
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 enforce17
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.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 when19
it proclaimed its own EEZ jurisdiction.
12 Draft Framework, at 1-2.
13 Draft Framework, at 5.
15 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.).
16 United Nations Convention on the Law of the Sea, December 10, 1982, arts. 2.1, 2.2, 3,
17 Id. at art. 33.
18 Id. at art. 56.1.
19 Id.; Proclamation 5030, Exclusive Economic Zone of the United States of America,
March 10, 1983.
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
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
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 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
20 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).
21 See, e.g., 16 U.S.C. §§ 1362(15); 1432(3); 1538(a)(1)(B)-(C).
22 U.S. CONST. art IV, § 3.
23 U.S. CONST. art. I, § 8.
24 U.S. CONST. art II, § 2.
25 See CRS Report RL32185, U.N. Convention on the Law of the Sea: Living Resources
Provisions, by Eugene Buck.
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
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-a-vis
the international community and the federal government vis-a-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-a-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
26 Protocol Amending the 1916 Convention for the Protection of Migratory Birds (December
27 UNCLOS III arts. 2.1, 17-26, 37-44, 53.
28 Proc. No. 5928 (December 27, 1988).
29 See, e.g., United States v. California, 436 U.S. 32, 36 (1978); United States v. Alaska, 422
U.S. 184, 199 (1975).
30 See UNCLOS III, art. 2.1; Restatement (Third) of the Foreign Relations Law of the United
States, §§ 512, 513 (1986).
31 43 U.S.C. §§ 1301-1303, 1311-1315.
32 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.).
33 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,
regulate the coastal waters within this 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
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.”).
34 43 U.S.C. § 1314(a).
35 43 U.S.C. § 1311(a)(2).
36 43 U.S.C. § 1302.
37 Proc. No. 5030 (March 10, 1983).
38 UNCLOS III Arts. 56, 58.
39 Id. at art. 56.1.
40 Id. at art. 56.1(b).
41 Id. at § 514, comment. c.
42 Id. at art. 33.
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 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
43 Proc. No. 7219 (September 2, 1999).
45 United States v. De Leon, 270 F.3d 90, 91 n.1 (1st Cir. 2001).
46 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
47 16 U.S.C. §§ 1431-1445b (2003)(as amended).
48 16 U.S.C. § 1431(b)(2).
49 Id. 16 U.S.C. §§ 1431(a), 1433.
50 COMMITTEE ON THE EVALUATION, DESIGN, AND MONITORING 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).
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,
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 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;
51 See [http://sanctuaries.noaa.gov/visit/welcome.html].
52 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.
53 16 U.S.C. § 1433(a).
54 16 U.S.C. § 1434(a)(1)(A).
55 16 U.S.C. § 1434(a)(2)(C)(i). “The terms of designation of a sanctuary shall include the
geographic area proposed to 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).
56 16 U.S.C. § 1434(a).
57 16 U.S.C. § 1434(a)(3).
58 16 U.S.C. § 1434(a)(6).
(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
(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 and59
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.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 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
59 16 U.S.C. § 1433(a).
60 16 U.S.C. §§ 1433(b), (b)(2).
61 16 U.S.C. § 1434(b)(1).
63 16 U.S.C. § 1431(b)(6).
64 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
65 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.
66 16 U.S.C. §§ 1433(b)(1)(H), (I).
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, 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 the77
Nation’s fishery resources.” This law establishes a regulatory system applicable to
management of domestic fisheries within U.S. waters, excluding the region coastal78
states control under the Federal Submerged Lands Act.
67 16 U.S.C. § 1433(b)(1)(C).
68 See discussion in the next section of this Report.
69 16 U.S.C. § 1434(a)(5).
71 16 U.S.C. § 1434(c).
72 16 U.S.C. § 1441(g).
73 16 U.S.C. § 1443(b).
74 16 U.S.C. § 1443(d).
75 United States v. M/V Jacquelyn L, 100 F.3d 1520 (11th Cir. 1996); see also 16 U.S.C. §§
76 16 U.S.C. §§ 1801-1882.
77 16 U.S.C. § 1801(a)(6).
78 16 U.S.C. §§ 1801(a)(7), 1811; see supra, note 30 and accompanying text.
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
(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 level82
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
The regulations and FMPs submitted by the regional councils are reviewed by84
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
79 16 U.S.C. § 1852(a).
80 16 U.S.C. §§ 1853, 1852(h), 1851(a)(1)-(7).
81 16 U.S.C. § 1851(a)(1).
82 16 U.S.C. § 1802(28), as amended by P.L. 104-297, §102.
83 16 U.S.C. § 1802(29).
84 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 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.
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
85 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.
86 Fikret Berkes, Robin Mahon, Patrick McConney, Richard Pollnac, and Robert Pomeroy,
MANAGING SMALL-SCALE FISHERIES: ALTERNATIVE DIRECTIONS AND METHODS 6.3.2
87 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
88 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
89 16 U.S.C. § 1855(b); 50 C.F.R. § 600.805(a).
90 16 U.S.C. §§ 1855(b), 1882(a); 50 C.F.R. § 600.805(a).
91 50 C.F.R. § 600.815.
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 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.
92 50 C.F.R.§§ 600.815(a)(2)(ii)(E), 600.810(a).
93 50 C.F.R. § 600.815(a)(2)(ii).
94 50 C.F.R. § 600.815.
95 16 U.S.C. § 1852(h).
96 16 U.S.C. § 1853(c)(2); 50 C.F.R. § 600.315(d).
97 50 C.F.R. § 600.335(c)(2), (d).
98 43 U.S.C. §§ 1331-1356.
99 43 U.S.C. §§ 1301, 1331(a).
100 43 U.S.C. §§ 1334(a), 1337.
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
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
101 43 U.S.C. § 1344.
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.th
U.S., 530 U.S. 604 (2000); Gulf Oil Corp. v. Morton, 493 F.2d 141 (9 Cir. 1973).
106 43 U.S.C. § 1340(c)(2).
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
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
General Preservation Laws
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
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).
112 16 U.S.C. § 1455(d)(2), (9)-(12).
113 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.
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 with116
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.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 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
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 (1959-1963) (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,
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
120 Proclamation No. 7392, 66 Fed. Reg. 7,335, 7,336 (January 17, 2001).
activities and environmental protection of the EEZ pursuant to presidential
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 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
121 United States v. California, 332 U.S. 19 (1947); Alabama v. Texas, 347 U.S. 272, 273-74
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-
125 43 U.S.C. § 1311.
126 43 U.S.C. § 1312; see supra, note 30 and accompanying text.
127 43 U.S.C. § 1314.
management, administration, leasing, use, and development of the lands and natural
Thus, it is clear that, vis-a-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-a-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
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).
jurisdiction and control.”134 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 of135
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.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
134 43 U.S.C. § 1331(a) (emphasis added).
135 43 U.S.C. § 1332 (emphasis added).
136 Proclamation No. 5030 (March 10, 1983), reprinted in 16 U.S.C. § 1453 note.
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 andth
Abandoned Sailing Vessel, 569 F.2d 330 (5 Cir. 1978).
139 16 U.S.C. §§ 1-3.
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
(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 resource143
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.”144 Hence, fishing in145
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, among146
other things, “measures for the preservation of the area’s resources....” Broad
general authority to prescribe rules related to the management of the National Park147
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
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).
143 16 U.S.C. § 1a-5(c)(3)(A).
144 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.
other activities on or relating to waters located within areas of the National Park
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 regulate149
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 1966150
(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 benefit151
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
148 16 U.S.C. § 1a-2(h) (emphasis in original).
149 16 U.S.C. § 1a-2(h) (emphasis added).
150 16 U.S.C. §§ 668dd-668ee.
151 16 U.S.C. §§ 668dd(a)(1), (2).
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 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
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
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. 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).
157 Richard J. Fink, The National Wildlife Refuges: Theory, Practice, and Prospect, 18
HARV. ENVTL. L. REV. 1, (1994).
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,
refuge protection standards would appear to be more permissive than the standards
applicable to national parks and less permissive than standards applicable to
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
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
164 50 C.F.R. § 29.
165 50 C.F.R. § 32.
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).
the fish, wildlife, and plant resources and their habitats within the United States169
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.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 internationally171
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 managing172
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
13,178173 and 13,196,174 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.
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-
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 public comment.)
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
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
175 Act of November 13, 2000 P.L. 106-513; see also Act of December 21, 2000, P.L. 106-
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).
eight Preservation Areas where permitted fishing may temporarily take place, and
seven Preservation Areas where no resource development is allowed.181
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
181 Exec. Order 13,196 §§ 3-4, amending Exec. Order 13,178 §§ 7-8.
182 This is the applicable regional fishery council under Magnuson-Stevens.
183 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,
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.
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
Director193 must determine if any pollutant discharge will unreasonably degrade194 the
marine 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
190 33 U.S.C. §§ 1251 et seq.
191 33 U.S.C. § 1343(a), (c).
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, 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.
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 it200
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.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 responsibilities202
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.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
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.
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,
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 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.
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. 106-513, § 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,
207 Exec. Order 13,178 at § 4.
208 Id. at § 5(b)(1).
209 Id. at § 5(d).
The enabling statute and the Executive Orders also leave the role of the regional
fishery management council, WesPac, vis-a-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
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
210 16 U.S.C. § 1854(a)(3).
211 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).
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.