Interesting regulatory exemptions likely to be adopted for the proposed Pew monument

From the beginning of Pew’s campaign to convert over 115,000 square miles of our exclusive economic zone into a national monument (or marine preserve), our local Pew lobbyist has suggested that we use the Northwestern Hawaiian Islands National Marine Monument as a model for their monument proposal. As some one who wanted to fully understand the repercussions of having a national marine monument designated in our EEZ, I followed Pew’s advice. The more I read, the more concerned I became.

Should the proposed Pew monument be designated, we all know that it comes with highly restrictive prohibitions against any and all commercial and recreational extractive uses, among many others. These prohibitions are fundamental in the designation of national monuments as per the Antiquities Act of 1906. Further regulatory restrictions would be placed on visitors and activities by the National Marine Sanctuary Program (NOAA/NOS) in order to meet their mandated goals and objectives. This is all done with the stated purpose of protecting the natural resources of the monument.

With that being said, I find it ironic that the U.S. military was exempted from compliance with the NWHI Monument rules and regulations. Even more interesting, if not puzzling, is that non-U.S. citizens who are acting under international law are also exempt from the NWHI Monument regulations. As these two exemptions relate to national security and/or international law, I am assuming that they would be non-negotiable and be included in the presidential proclamation designating the Pew Monument, should it be pursued.

The exemption given the U.S. military in complying with NWHI Monument regulations is concisely spelled out in Presidential Proclamation 8031: “The prohibitions required by this proclamation shall not apply to activities and exercises of the Armed Forces (including those carried out by the United States Coast Guard) that are consistent with applicable laws.” The U.S. military exemption is also repeated in Section 404.9 in the NWHI Monument regulations (FR Vol. 71, No. 167; page 51138).

It is very hard to say what problems, if any, will appear with the military being granted carte blanche use of the proposed Pew Monument waters. However, with the ongoing significant military buildup in the Marianas, it is extremely likely that the military will have good reason to utilize monument waters for training and other purposes. This issue is usually downplayed during Pew presentations—if discussed at all.

Interestingly, a recent article (March 19-25, 2008) in the Honolulu Weekly, titled National Monument, watery grave?, described the public outcry from Hawaiian environmental groups when they learned the military was planning to use NWHI Monument waters for training exercises. They apparently didn’t pay attention to the regulatory details in the rush to get the NWHI Marine Sanctuary designated as a national monument.

The second exemption by far is the most perplexing to me. There is a legal exemption at ‘404.12 (page 51140) in the NWHI Monument regulations that state: “These regulations shall be applied in accordance with international law. No restrictions shall apply to or be enforced against a person who is not a citizen, national, or resident alien of the United States (including foreign flag vessels) unless in accordance with international law.”

I certainly understand that international law takes precedence over monument regulations. However, looking at the worst possible scenario, is it possible that the U.S. State Department could authorize distant water fishing fleets from China, Japan, or Taiwan to fish monument waters under an international fisheries treaty? I don’t know the answer as I am not an attorney. Comments from knowledgeable persons are certainly welcome.

From a layman’s perspective, it appears that the only ones that must comply with all the numerous prohibitions and regulations established for a national monument are us U.S. citizens.