Was the process of allowing commercial fishing in the Pacific Islands Heritage Marine National Monument followed properly?
President Donald Trump issued a proclamation in April to open PIHMNM to commercial fishing, in part by ordering that the secretary of commerce “shall not prohibit commercial fishing” in the monument, located in the central Pacific Ocean.
About a week later, the National Oceanic and Atmospheric Administration announced that commercial fishing is no longer banned in those waters, and just days after that, longline fishing boats were observed fishing in the monument.
But environmental lawyers in a legal battle to stop the fishing say a formal process, which includes public hearings, is required first.
“The arguments focused on specifically the fishery service’s failure to engage in a rulemaking process that would've given the public, including outside experts, an opportunity to weigh in and explain why the type of fishing that the fishery service gave the green light to … are disastrous to the marine resources within the monument,” said Earthjustice attorney David Henkin.
Henkin made those arguments Tuesday to U.S. District Court Judge Micah Smith in Honolulu, as a representative for the Center for Biological Diversity, the Conservation Council for Hawaiʻi, and Kāpaʻa, an organization that supports marine monuments in the Pacific Ocean.
Those groups are the plaintiffs in a complaint challenging Trump’s move to allow commercial fishing in the monument.
Tuesday’s hearing also provided time for defense attorneys to justify NOAA’s process.
Attorney Sara Warren, representing Trump and other leaders in the administration, said the president has the power to rescind the monument’s existing fishing ban through the Antiquities Act — a nearly 120-year-old law that gives the president the power to create protected monuments.
That law was also used in 2009 to first establish the PIHMNM and ban commercial fishing within its borders. In 2014, it was expanded to its current and nearly 500,000 square miles.
The plaintiffs argue that the Antiquities Act gives the president the power to create monuments, but not dissolve them. Trump’s lawyers argued otherwise.
“When the president acts under the Antiquities Act, he acts under the force of law,” Warren said in Tuesday’s hearing, adding that Trump’s order makes existing regulations “no longer effective.”
But Smith appeared to struggle with Warren over the meaning of the proclamation, asking what rule allows the president to use his executive powers — with no formal proceeding — to remove the regulation like the monument’s commercial fishing ban.
He asked her multiple times to point to that authority, to which Warren had difficulty responding.
Smith said he’ll expedite a decision on the case, which could result in the discontinuation of commercial fishing in the monument.
Meanwhile, those who support commercial fishing in the monument argue that it’s not — and cannot be — environmentally destructive, but is an important economic driver for communities in the Pacific.
“By law, no U.S. managed fishery could be allowed to operate if it was destructive to a degree that it will destroy the marine ecosystem,” said Eric Kingma, executive director for the Hawaiʻi Longline Association, in an email statement. “The impact of the Hawaii longline fleet is negligible to the pelagic ecosystem … These areas were pristine when fishing was allowed there prior to 2014 and remain so today even after waters have been reopened from 50-200 (nautical miles).”
Scientists, fishers and advocates for and against monuments in the Pacific Ocean have long argued over the impacts of fishing on ocean ecosystems.
Those who want fewer commercial fishing restrictions say allowing more would help Hawaiʻi’s longline fishing crews as well as American Samoa’s, as its exports are almost entirely tuna, and one-third of its workforce belongs to its tuna industry.
Those who support ocean monuments say longline fishing is the primary cause of death for seabirds, sea turtles and sharks, and that it alters marine ecosystems by removing large predators like tuna.
The PIHMNM covers ocean waters around Baker, Howland and Jarvis Island; Johnston, Wake, and Palmyra Atoll; and Kingman Reef.
