Posted on July 7, 2014 by Larry Ausherman
From guano of seabirds, national treasure springs. The treasure is the Pacific Remote Islands Marine National Monument in the south-central Pacific Ocean, and it contains some of the most pristine tropical marine environments in the world. It is way out there and mostly under water. The Monument was initially created by George W. Bush in 2009, days before leaving office, pursuant to his executive authority under the Antiquities Act of 1906. But recently, on June 17, 2014, President Obama announced his proposal to expand the Monument nearly tenfold, from the existing area of almost 87,000 square miles to a new total area of 782,000 square miles. Although the size of the Monument will not be finally determined until after this summer’s comment period, the proposal would create the largest protected area on earth and essentially double the area of the world’s oceans that is fully protected. The Monument would be off limits to fishing, energy exploration, and various other activities. Again, the Antiquities Act is the basis of President Obama’s action. The announcement came at the “Our Ocean” conference, hosted by the State Department on June 16 and 17, where other marine conservation initiatives were also announced. The guano that made it possible came at a different time and venue, which I will describe shortly.
Since the presidency of Theodore Roosevelt, the scope of executive power exercised by presidents under the Antiquities Act of 1906 has prompted both needed conservation and heated criticism. For some, criticism of Obama’s proposal aligns with the “Imperial Presidency” moniker. Indeed, the scope of Obama’s proposal is enormous. But many other presidents have used the Act as well, and George W. Bush leads the league in number of marine monuments created by any president under the Act. He created four. The reach of executive powers under the Antiquities Act is told in history that ranges from the Grand Canyon to the Statue of Liberty.
As elegant as the tradition of the Antiquities Act is to the cause of conservation, the Pacific Remote Islands Marine National Monument was made possible in part by a less glamorous law — the lowly Guano Islands Act of 1856. It is guano as much as antiquities that support much of what may become the largest protected area in the world. And, as an example of an ambitious stretch of governmental authority, the Antiquities Act has nothing on the Guano Islands Act either. The Antiquities Act gives presidents the right to preserve American antiquities with the stroke of a pen. But the Guano Islands Act gave American citizens the right to take possession of and claim for the United States any island in the world that was unoccupied and not under the jurisdiction of another country – so long as the island held guano deposits.
Enacted in a time of global exploration and exploitation, the Guano Islands Act was inspired by tales of vast island deposits of guano, a valuable source of fertilizer. The Act gave any enterprising guano company the green light to become an American Midas, turning guano into big profits in the fertilizer business. In the mid-1800s, most of the tiny islands around which the Pacific Remote Islands Marine National Monument is based were apparently known as “guano islands”. There were also many other guano islands. Under the authority of the Guano Islands Act, the remote guano islands of the present day Monument were claimed for the United States, and the islands became territories of the United States. It is largely that “territory” status that creates the modern-day jurisdiction of the United States over the islands of the Pacific Remote Islands Monument.
The seven islands and atolls of the Monument are tiny. How then could these specks in the ocean provide authority to the United States to require preservation for an underwater realm of 782,000 square miles? It is because each of the scattered islands now comes complete with a U.S. Exclusive Economic Zone (“EEZ”) which surrounds it for 200 miles in all directions from its shore. In 1983, in accord with the United Nations Convention on the Law of the Sea, a Presidential Proclamation by President Reagan (which was unrelated to the Antiquities Act) created this 200 mile EEZ for the United States and its territories. The EEZ provides the United States with rights to conserve and manage resources within the 200 mile zone. The remoteness of the islands causes pristine environments and minimizes commercial activity, two factors that work in favor of creating a reserve of this size.
The Pacific Remote Islands National Monument bears the fingerprints of at least five presidents, reaching across the aisle and the passage of time. Franklin Pierce signed the Guano Islands Act of 1856 into law. Theodore Roosevelt is responsible for the Antiquities Act of 1906. Ronald Reagan created the 200 mile EEZ for territories of the United States. George W. Bush created the Pacific Remote Islands Marine Monument out to 50 miles from the shores of each of the Monument’s islands. Now, President Obama is going for the whole enchilada by expanding the Monument to the full 200 mile limit around each island.
The moral of the story is that the thing you cheer or fear is often not the thing that matters most in the end, and sometimes conservation comes from unheralded sources. Executive authority under the Antiquities Act is a perennial topic in the conservation conversation, but the Guano Islands Act is a sleeper. Its original mining purpose no longer pans out in the remote Pacific, but the Act is a federal foot in the door for a very different conservation purpose over a century and a half later. These days, the gold in the guano islands is their marine environment. It extends offshore for a very long way, and this time the President wants to bank it.