With an eye to the future and our national values, presidents of both parties, from Teddy Roosevelt to Barack ObamaBarack Hussein ObamaObama marks MLK Day by honoring King for his 'poetic brilliance' and 'moral clarity' Biden breaks away from 2020 pack in South Carolina National Archives says it altered Trump signs, other messages in Women's March photo MORE, have used the Antiquities Act to protect some of America’s most beloved places, including the Grand Canyon, the Chesapeake & Ohio Canal, and the Statue of Liberty. For over 100 years, presidents have used this authority granted by Congress to protect areas of historic, cultural, or scientific interest more than 150 times.

This bipartisan protection of our nation’s treasures is under attack.  President Trump seems prepared to undo conservation of some of our country’s most scientifically or historically important places.  He has ordered a “review” of 20 years of national monument designations, including seven marine designations in the Pacific and off Cape Cod.

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These include the extraordinary marine national monument in the waters off Hawaii, Papahānaumokuākea Marine National Monument, designated by President George W. Bush in 2006 and expanded by President Obama, and the Northeast Canyons and Seamounts.

The review is unprecedented, and could lead to unlawful decisions to rescind, substantially reduce in size, or change the management.  Such decisions would also undermine one of our nation’s most important conservation tools.  The United States has long taken the position that only Congress can revoke or substantially reduce the size of a monument.  A longstanding opinion of the Attorney General, issued in 1938, provides that only Congress has authority to rescind a monument.

Challengers have raised two arguments against these important marine monuments:  Presidents cannot designate them in the ocean, and some of these monuments are too big.  These challengers are legally wrong on both counts.

Does the Antiquities Act allow the president to proclaim monuments in the ocean?  Yes it does.  Past presidents, including Presidents Bush and Obama thought so, and recognized the scientific and conservation values they serve by protecting our cherished national marine resources.

The Act provides that the President may declare, as a monument, “objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States.”  The marine monuments not only protect marine species like corals, whales, and fish, they also protect ecosystems and other objects of historic or scientific interest.  The monuments lie within the United States’ Exclusive Economic Zone—that area, out to 200 miles in the ocean, is under the control of the United States for certain purposes, including environmental protection.

In a legal opinion issued in 2000, the U.S. Department of Justice concluded that this control was sufficient to allow the President to use the Antiquities Act to establish a national monument to protect the marine environment in the Exclusive Economic Zone.  The United Nations Convention on the Law of the Sea recognizes a nation’s “sovereign rights” there for specified purposes.  Sovereign rights provide sufficient “control” to the United States to meet the Antiquities Act requirement.  The lands and waters within the seven marine monument designations proclaimed from 2006 through 2016 may be designated for protection and research.  These seven proclamations lawfully do so.

As to the second question:  Are these monuments just “too big?”  Certainly not. The Antiquities Act provides that a monument must be confined to “the smallest area compatible with proper care and management of the objects to be protected.”  In each of these proclamations, the President has made that finding.  Federal courts, including the Supreme Court, have consistently found that ecosystems may be objects under the Act and have honored the President’s proclamations.  For marine ecosystems and other objects such as fish, coral, seamounts, and marine mammals, a large area including the submerged lands and the water column is essential for proper care and management.  So are the other conditions for protection set forth in these proclamations.

These seven presidential proclamations to protect important marine national treasures are fully lawful. We owe them our respect and appreciation.  If President Trump wants to reverse the conservation of these areas for future generations, he should follow the law and ask Congress to act to rescind them.

He would be better advised to remember Jacque Cousteau’s wisdom: “The sea, once it casts its spell, holds one in its net of wonder forever.”

Lois Schiffer is an environmental attorney and former General Counsel of the National Oceanic and Atmospheric Administration (NOAA).


The views expressed by this author are their own and are not the views of The Hill.