21. Examining the Law about the Proposed Marianas Trench Marine Monument

One of the current issues of interest in the CNMI relates to the possibility of a new national marine monument. Presently under consideration by the President of the United States is a proposal to designate the Exclusive Economic Zone (EEZ) around the three CNMI islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion as a national marine monument.

Here is some information about the law that relates to this issue.

The CNMI CONSTITUTION, Article XIV: The CNMI Constitution requires strong protection for the environment. It specifically provides that the three northernmost islands of Uracas (a/k/a Farallon de Pajaros), Maug, and Asuncion be protected and maintained as uninhabited islands, to preserve the natural environment there.

Section 2: Uninhabited Islands. ... The islands of Maug, Uracas, Asuncion, ... and other islands specified by law shall be maintained as uninhabited places and used only for the preservation and protection of natural resources, including but not limited to bird, wildlife and plant species.

The CNMI Constitutional protection, however, does not extend to the waters and submerged lands around these islands.

Fish at Maug.
Photo by OceanBen, NOAA.



CNMI vs. UNITED STATES OF AMERICA: The CNMI claimed ownership of the submerged lands around all of the CNMI islands. It sought to quiet title to those submerged lands in a lawsuit it filed against the U.S. However, both the U.S. District Court and the Ninth Circuit Court of Appeals denied the CNMI's claim, and held that when the CNMI negotiated the Covenant, it failed to make any claim for the submerged lands; at that time, the doctrine of U.S. "paramountcy"--meaning U.S. control of submerged lands--was well established law. The Court held that the submerged lands adjacent to the CNMI belong to the U.S.

In essence this means that the U.S. controls all of the submerged lands in the Exclusive Economic Zone around the CNMI, from the high water mark on each island out to 200 miles.


The ANTIQUITIES ACT of 1906: This federal law allows the President of the U.S. to designate

historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments...

Any site under U.S. federal control that has historic, cultural, or scientific significance can be designated a "monument" and that designation provides protection from excavation, injury, and destruction. Removal of antiquities can only be done by permit, and must be collected in a reputable museum or educational institution.

The Antiquities Act has been used more than 100 times by Presidents to designate monuments. Although the Antiquities Act speaks of "land," it apparently applies to submerged lands and the waters above them: the most recent designation was the creation of the monument in the northwestern Hawaiian Islands-- the Papahanaumokuakea Monument.

Because the land must already be owned or controlled by the U.S. the Antiquities Act does not require approval or consent from inhabitants of the state or territory where the monument is located. However, it has been the practice that the President examines whether there is local support for the designation of a monument; this is what President Bush did before designation a monument in the northwestern Hawaiian Islands.

There have been no public hearings and there will be no vote on the proposal for a Marianas Trench national marine monument. The only way for the President to gauge public sentiment is through public comment, either in the newspapers and other media, or through letters and e-mails to the White House.

Corals at Maug.
Photo from Oregon State University.

In the CNMI, most elected officials have gone on record and notified the President of their opposition to designation of the proposed Marianas Trench national marine monument. However, a great many individuals and businesses have gone on record or notified the President of their support for the designation of the proposed Marianas Trench national marine monument.

If you want to be heard on the issue, you can sign a petition in favor of the monument (contact Angelo Villagomez). Or you can sign a petition against the monument. You can also write a letter to either or both CNMI Newspapers, the Marianas Variety and the Saipan Tribune. Or you can write directly to President George W. Bush at The White House, 1600 Pennsylvania Ave, Washington, D.C. 20500, or send an e-mail to comments@whitehouse.gov (text format only).

TIMEFRAME: There is no law that limits or defines the time frame for comments or for designation of the Marianas Trench national marine monument. It appears, however, that this is a proposal of the Bush Administration staff, and there is no indication that the proposal would be taken up by either candidate for President (McCain or Obama) in the next administration.

Rules and Regulations: It appears that if a Monument is designated, then rules and regulations are adopted. These would likely require co-management of the national marine monument, between the CNMI and the U.S., as was done in the Hawaii monument. It appears that co-management agreements are negotiated between the governments, but not subject to any particular process.

We could likely expect to see rules and regulations published in the Federal Register (and then the Code of Federal Regulations). The regulations for the Papahanaumokuakea Monument suggest that there would not likely be a comment period, except for certain limited topics; EDIT--the recent information from University of Hawaii, William S. Richardson School of Law Professor Jon Van Dyke indicates that there is a short time period (75 days in the case of the Hawaiian monument) for public input after the President's designation.

The designation of monument status guarantees the most conservation protection available under law, and that protection is then further detailed in the regulations, worked out by the co-managers with public involvement.