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Guam in November.

The Power of the Pen - Monuments and Sanctuaries

The Washington Post ran an exclusive article this week reporting that President Obama is about to expand the Pacific Remote Islands Marine National Monument purportedly creating the world's largest marine sanctuary.

Per the article:  

Under the proposal, according to two independent analyses, the Pacific Remote Islands Marine National Monument would be expanded from almost 87,000 square miles to nearly 782,000 square miles — all of it adjacent to seven islands and atolls controlled by the United States. The designation would include waters up to 200 nautical miles offshore from the territories. 

There is an existing Pacific Remote Islands National Monument that was created by President Bush. His proclamation invoked the Antiquities Act to create the monument.  I expect the current one invoked the same authority. 

More after the proclamation hits the streets.

Kaneohe Bay

APEC 2011 Security Zones - Graphic Released by Coast Guard

 

Supreme Court's Busy Ocean (Kinda) Law Docket

I just saw the Petitions to Watch on SCOTUSBLOG. 

Two cases of relevance to this blog (in my humble opinion anyway):

For the Con Law wonks:  Sun v. United States.  This case arises from the federal district court in the Commonwealth of Northern Mariana Islands.  A criminal defendant challenged his criminal conviction on the basis that the trial judge was not an Article III judge, ergo the judge did not have jurisdiction to hear the case.  The Ninth Circuit summarily affirmed the conviction, finding that the judge was an Article IV judge.

For the International Law wonks:  Bowoto v. Chevron.  The petition asks the court whether American companies can be liable under the Torture Victim Protection Act, 28 U.S.C. 1350 which provides:

An individual who, under actual or apparent authority, or color of law, of any foreign nation— (1) subjects an individual to torture shall, in a civil action, be liable for damages to that individual; or (2) subjects an individual to extrajudicial killing shall, in a civil action, be liable for damages to the individual’s legal representative, or to any person who may be a claimant in an action for wrongful death.

No surprise in this petition because the Ninth Circuit acknowledged the split of interpretation of the Death on the High Seas Act, see my earlier post here.  Stay tuned.

Feds Hold Public Hearings for Critical Habitat Designation for Monk Seals

The National Marine Fisheries Service is holding a series of public meetings to discuss its proposed rule regarding Hawaiian Monk Seal critical habitat.  The proposed rule is here.  The rule's background is:

In the notice of the proposed rulemaking, we propose to revise the current critical habitat for the Hawaiian monk seal (Monachus schauinslandi) by extending the current designation in the Northwestern Hawaiian Islands (NWHI) out to the 500-meter (m) depth contour and including Sand Island at Midway Islands; and by designating six new areas in the main Hawaiian Islands (MHI), pursuant to section 4 of the Endangered Species Act (ESA). Specific areas proposed for the MHI include terrestrial and marine habitat from 5 m inland from the shoreline extending seaward to the 500-m depth contour around: Kaula Island, Niihau, Kauai, Oahu, Maui Nui (including Kahoolawe, Lanai, Maui, and Molokai), and Hawaii (except those areas that have been identified as not included in the designation). We propose to exclude the following areas from designation because the national security benefits of exclusion outweigh the benefits of inclusion, and exclusion will not result in extinction of the species: Kingfisher Underwater Training area in marine areas off the northeast coast of Niihau; Pacific Missile Range Facility Main Base at Barking Sands, Kauai; Pacific Missile Range Facility Offshore Areas in marine areas off the western coast of Kauai; the Naval Defensive Sea Area and Puuloa Underwater Training Range in marine areas outside Pearl Harbor, Oahu; and the Shallow Water Minefield Sonar Training Range off the western coast of Kahoolawe in the Maui Nui area. In addition we are soliciting comments on all aspects of the proposal, including information on the economic, national security, and other relevant impacts. We will consider additional information received prior to making a final decision on critical habitat designation.

The schedule for the hearings is:

Moloka’i
Monday, August 8 5:30-8 pm
Mitchell Pauole Center
90 Ainoa Street
Kaunakakai, HI 96748

Maui
Tuesday, August 9 5:30-8 pm
Kihei Community Center
303 E. Lipoa St.
Kihei, HI 96753

Kaua’i
Wednesday, August 10 5:30-8 pm
Kaua’i War Memorial Convention Hall
4191 Hardy St., Exhibit Hall B
Lihu’e, HI 96766

O’ahu
Thursday, August 11 5:30-8 pm
McCoy Pavilion at Ala Moana Park
1201 Ala Moana Blvd.
Honolulu, HI 96814

Hawai’i
Monday, August 15 5:30-8 pm
Mokupapapa Discovery Center
308 Kamehameha Ave., 109
Hilo, HI 96720

Tuesday, August 16 6:30-9 pm
Kahakai Elementary School
76-147 Royal Poinciana Drive
Kailua Kona, HI 96740

Written comments must be received before August 31, 2011 or you can submit them at www.regulations.gov. 

Pacific Ocean Environmental Issues in the News - Rare Earth and Plastics

Lots of ocean environmental issues in the news today. 

The Star Advertiser reports that Japanese researchers discovered rare earth minerals in the Pacific Ocean, apparently beyond the U.S. Exclusive Economic Zone.  Several interviewed, including my former colleague Robert Harris, have expressed some concerns about the environmental impacts of such action.  This is an interesting discovery - stay tuned for my thoughts on the legal issues, like Law of the Sea, Global Commons, and the Precautionary Principle.

Separately, the Christian Science Monitor reports on the impact of the plastic-laden garbage patch in the North Pacific. To date, news reports are focused on the impact of the garbage patch on seabirds, as bird carcasses full of plastic are regularly found on the Northwestern Hawaiian Islands.  This was an interesting report on the impact of the plastics on the fish which are more commonly part of the food chain that can impact humans.  The Scripps release is here.

Trust Territory Revisited - Compacts Updated by Congress

The Compacts of Free Association had a comprehensive update recently passed by the U.S. House of Representatives.  This amendment was sent to the Senate last week, here.  These Compacts affect the countries of the Federated States of Micronesia, the Republic of the Marshall Islands and the Republic of Palau.

The defeat of Japan at the end of World War II left numerous island chains ungoverned.  This status prompted the creation of the Trust Territory of the Pacific Islands.  This U.N. sponsored affiliation was a protectorate with the United States acting as the government and perhaps more importantly, the department of defense for these islands.

Rather than transitioning towards statehood, several island chains opted for "free association" with the United States in the 70's and 80's.  This arrangement allowed for sovereignty to pass back to the various "countries" combined, however, with a residual relationship with the former "trustee".  The Compact of Free Association provides for favorable treatment for citizens of the former Trust Territory to include immigration and military service.

Some interesting provisions of the Amendment.  Section 5 provides that citizens of Palau, Micronesia and the Marshall Islands are entitled to receive services from the Legal Services Corporation.  This was a vexing issue in Hawaii where the Legal Aid organization could not provide indigent legal services to Hawaii residents from the former Trust Territory, explained here.  If approved by the Senate and signed by the President, FEMA would remain obligated to provide funding for disaster assistance.  Finally, Palau would be entitled to transmit U.S. videotaped programming, apparently Palau was left off the list when Trust Territory of the Pacific Islands terminated.

As the amendment demonstrates, laws relating to these countries, both international and U.S., typically present very diverse issues resulting from the historical relationship between them and the United States.