THE
DEED IS DONETHUNDER BAY
THE
DEED IS DONE
The Bay City Times reported on June 20, 2000 that Governor Engler signed the agreement which will create the Thunder Bay National Marine Sanctuary. Under the agreement, state and federal officials will share the responsibility of managing the 448 square mile preserve.
There will be no user fees, but the preserve will need $1 million over the next five years from the state's general fund.
SANCTUARY NOT DEAD YET
While both the Department of Natural Resources and the Department of Environmental Quality have expressed negative opinions toward the Proposed Thunder Bay National Marine Sanctuary, the federal government has not given up.
According to the National Oceanic and Atmospheric Agency (NOAA), it is in the process of preparing a Final Environmental Impact Statement/Management Plan which is planned for publication in early 1999 and will be published in the Federal Register. The designation is not final until the end of a 45-day review period of continuous Congressional session, during which time the Governor of Michigan and the U.S. Congress can take action. This process should be completed in 1999.
Apparently, no matter what the voters think (who voted in an informational election against the sanctuary), no matter what the Michigan agencies which would have to deal with the sanctuary say, the federal government will not go away until Governor Engler tells them "NO" or the Congress kills the idea.
For more information about the status of the Proposed Sanctuary, you can contact Ellen Brody at (734) 741-2270 or Karen Brubeck at (616) 526-8434. You can also visit the NOAA website http://glerl.noaa.gov.glsr/thunderbay
You can also contact Governor Engler at migov@mail.state.mi.us and Sen. Walter North at (517) 373-2413 or by e-mail, SenWNorth@senate.state.mi.us
DNR SAYS NO TO NOAA
On November 20, 1997, the Michigan Department of Natural Resources (DNR) wrote to Ms. Ellen Brody, the Project Coordinator of the Thunder Bay National Marine Sanctuary Proposal, stating:
"Given these concerns at this time, the Department of Natural Resources cannot support the establishment of the Thunder Bay National Marine Sanctuary as currently proposed."
K. L. Cool, Director of the DNR sent a 5 page letter to Ms. Ellen Brody, the Project Coordinator for the Proposed Sanctuary which was less than enthusiatic about the project.
The letter states that ". . . it has been the DNR's position from the beginning that the State should not subjugate its trust responsibilities to the Sanctuary." This has been a major concern of area anglers who fear "federal control could result in changing priorities for fisheries management and restriction of fishing areas."
While a Memorandum of Understanding (MOU) has been drafted, only an outline is provided in the Environmental Impact Statement/Management Plan. This document also contains a number of technical errors which are specified in the letter to Brody.
This letter, like that of the Department of Environmental Quality, expresses concerns that the money that the NOAA is offering along with the projected expenses (with no indication of the source of revenue) was a major part of the problem. This was also a concern with respect to the funding of the Law Enforcement officers who would be expected to enforce the proposed regulations.
The economic analysis provided by NOAA is seriously questioned with the observation that not only is the report internally inconsistent, but also that there is no apparent basis for the projected revenue, expense and activity projections.
While this letter does not support the Sanctuary, it does not appear to close the door.
We await word from the Governor who has not, as of this time, taken a formal position on the sanctuary.
DEQ NIXES SANCTUARY
On November 18, 1997, the Michigan Department of Environmental Quality (DEQ) wrote to Ms. Ellen Brody, the Project Coordinator of the Thunder Bay National Marine Sanctuary Proposal, stating:
"Therefore, the Department of Environmental Quality cannot support the establishment of the Thunder Bay National Marine Sanctuary as currently proposed by the NOAA."
Lawrence N. Witte of the DEQ indicated that the Governor had not yet stated a formal position on the matter.
According to Donna Stine, Chief of the Operations Section of the Parks and Recreation Division of the Department of Natural Resources (DNR), the DEQ has the lead on this issue.
Mr. Witte indicated that Ms. Stine and K. L. Cool, Director of the DNR were also less than enthusiatic about the project. The general feeling seems to be that the little bit of money that the NOAA is offering along with the projected expenses (with no indication of the source of revenue) was a major part of the problem. No significant increase in the protection of underwater cultural resources could be expected from the program.
Mr. Witte also indicated that the lack of local support for the Sanctuary was a major factor in the DEQ's decision.
We await further word from the Governor.
THUNDER BAY NOVEMBER VOTE
A fifteen member Advisory Board has been chosen from the affected communities to meet with NOAA to further discuss the proposed National Marine Sanctuary. The City of Alpena has an advisory referendum on the ballot for November 4. The Presque Isle County Commissioners are against the proposal, the Alcona County Commissioners have approved it. Alpena County Commissioners have not taken a position on the Sanctuary, probably waiting until after the vote in the City.
The Governor has not yet taken a position.
The Advisory Board will be meeting with representatives from other areas where Sanctuaries have been established including someone from Florida, where the Sanctuary has been particularly controversial.
One of the questions with which the Board anticipates dealing is the issue of how many controls can the agreement put on the Federal Government to make certain that there will not be restrictions on fishing, normal boating, or other activities and to make certain that no access fees will be charged. Another question being considered is whether the Community will be able to withdraw in five years if the citizens are dissatisfied with the implementation of the Agreement.
UPDATE: Approximately 2000 votes were cast on the issue in the City of Alpena on November 4th. The persons against the Sanctuary outnumbered those in favor of it by about 3 to 1.
MORE ON THUNDER BAY PROPOSED SANCTUARY
In an effort to learn more about the Proposed Thunder Bay National Marine Sanctuary, the author obtained records from the Michigan Departments of Natural Resources (DNR) and Environmental Quality (DEQ). While requests were also sent to the NOAA offices, it was clear through conversations with Sherrard Foster, the NOAA representative in the Washington, DC area, and Ole Varner, general counsel for NOAA, that they had no interest in making a records review easy or available. Ultimately, NOAA would require a check for just short of $1000 to even look at the records. The writer had indicated a willingness to go to Ann Arbor and review the records there to determine what, if anything, should be copied. Before even that step would be allowed, the check was required. (Sharrard Foster has been involved with other sanctuaries and was previously employed by Defenders of Wildlife.)
However, the State offices were very cooperative, made it clear that they had nothing to hide, and showed the files of both departments in their entirety. It is also clear that neither the DEQ nor the DNR is convinced that the designation is a good idea.
The concern which appears throughout the DNR and DEQ files is that there is no guarantee that the Federal Government will not change the rules after the designation is made. This appears to be a legitimate concern.
Congressman Gerry E. Studds, (D - MA) wrote in the 1993 Spring/Summer issue of Marine Sanctuary --when he was chairman of the US House of Representative Committee of Merchant Marine and Fisheries:
"Yet, the program [marine sanctuaries] has a full complement of legal and administrative tools for ecosystem protection. I cannot imagine needing additional statutory changes in the near future. What we do need is a complete revision of program regulations--one that will consolidate the statutory strengthening achieved during the past decade, build on the historic and strong support an agenda to improve marine ecosystem management.
"Ecosystem management is the future for environmentalism. In the past, it has always seemed an unattainable goal, but today, we have both the management tools and the technology to reach this goal. The National Marine Sanctuary Program is in position to lead the way.
"To those of you who have fought with us for the last two decades, I recommend that you give yourself a good strong pat on the back. You helped bring the sanctuary program through the barrage of Reagan, Watt, and Stockman. Now in their places, we have new leaders in Clinton, Gore, Brown, Babbitt, and Panetta. So to old-timers and newcomers alike, I say get ready for a new kind of challenge--one that is no less daunting, be eminently more rewarding.
"By the turn of the century, the words 'National Marine Sanctuary' should be synonymous with ecosystem protection...."
NOAA has, on occasion, been quite candid in its response to State personnel when discussing its intentions. When asked whether the Sanctuary could adopt State regulations and laws as Sanctuary regulations, NOAA responded:
"Nothing in the Marine Protection, Research, and Sanctuaries Act or its regulations explicitly either forbids or authorizes NOAA to adopt State laws as Sanctuary regulations. However, there are certain statutory provisions that make such a result unlikely.
"First, before designating an area as a Sanctuary, the Secretary of Commerce MUST FIND that:
existing State and Federal authorities are inadequate or should be suppplemented to ensure coordinated aand comprehensive conservation and management of the area, . . .
16 U.S.C. Sec. 1433(b). Thus, NOAA would not designate a Sanctuary and then simply declare that no Sanctuary regulations are required because State laws adequately cover all necessary activities. . . ."
NOAA's "bottom line" was that they would not propose a draft plan unless the State agreed that two general regulations were included. NOAA asserts trusteeship over submerged cultural resources over which the State has no jurisdiction.
There is NO DEDESIGNATION PROVISION in either the statute or program. It would probably take a Congressional action to rescind the Sanctuary.
While the regulations which are set forth in the proposal put forth by NOAA do not seem on their face to be overly broad, the National Marine Sanctuaries Act defines a "sanctuary resource" as "any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, research, educational, or aesthetic value of the sanctuary". The language of the Statute controls the Federal government's reach, not the proposed regulations. These regulations can be changed. It is clear that NOAA intends to review the regulations, at the latest, in five years. The Memorandum of Understanding (MOU) between NOAA and the State expires in 5 years. What happens then?
Despite the fact that NOAA has stated repeatedly that it does not "intend" to regulate fishing in Thunder Bay, in the MOU outline proposed by NOAA specifically states: "Fishing activities (provided they do not harm Sanctuary resources) would not be regulated by NOAA." 11/13/96 (Emphasis added.)
According to NOAA's publication An Overview of the Sanctuaries and Reserves Division, March 1995:
"Under the National Marine Sanctuaries Act (NMSA), NOAA is responsible for protecting sanctuary resources and facilitating multiple uses within the sanctuaries that are compatible with resource protection. The NMSA provides sufficient regulatory authority to accomplish these management objectives, including necessary authority to further regulate fisheries should measures be necessary to supplement the National Marine Fisheries Service (NMFS) and/or state regulations, where applicable, to address specific problems at a particular sanctuary."
When looking at National Marine Sanctuaries, it is instructive to see what has occurred at other sanctuaries which previously have been dedicated. In November of 1990 the Florida Keys National Marine Sanctuary was dedicated. It includes 3,700 square miles partially within State of Florida jurisdiction. This means that the Governor of Florida can only veto the plan for the areas entirely within Florida waters. (Remember, in Michigan, the Sanctuary would be entirely within State waters, so if the Governor vetoes the plan, no portion of the plan can be implemented.) NOAA had 30 months to complete the management plan and final regulations. Like all marine sanctuaries, drilling for oil and gas was prohibited. By 1993, a draft management plan was drawn. The plan was controversial from the beginning, but NOAA and the State of Florida had formed a council to participate in the planning. According to the Florida Keys Keynoter, the vast majority of commercial fishermen, small-business owners, marine interests and property owners do not want NOAA's program in the Keys. Apparently, the groups opposed to the designation were not allowed to attend the meetings.
The draft plan was released in April 1995. Activities prohibited in the Sanctuary include removing or damaging natural or historical resources or marine life; discharging substances; and using wire fish traps, trawls, explosives, spear guns, or dangerous weapons. Certain areas have been designated as "no-fish" zones. Seizure of boats and personal property is allowed for suspicion of a "probable violation" of the Act.
In an effort to block a sanctuary referendum proposal sponsored by local groups opposed to the Keys Sanctuary designation, NOAA awarded $35,000 to The Nature Conservancy (TNC). The money was earmarked for ecological site studies and volunteer programs. Using a Freedom of Information Act request, a local sanctuary opponent uncovered the documents which detailed the NOAA and TNC arrangements. The expenditure was pre-approved by NOAA.
One of the major objections the Floridians had to the plan was the increase of user fees by 400% in a very short time. NOAA officials have said that as far as Thunder Bay is concerned, user fees are no longer an issue, at least for the time being. This issue, however, is subject to annual review and budget negotiations.
Remember that one way of imposing regulations which do not go through any state or local review is through the legal system. Environmental groups sue a Federal Agency arguing that a certain unfavored activity is harming the environment. The Agency and the group then enter into a Consent Judgment which prohibits or restricts the unfavored activity in order to obtain a dismissal of the suit. That Consent Judgment has the force of law even though no legislative body voted on it and the only input was from people of like mind who favor maximum regulation.
Not all litigation is friendly. In 1991 a Department of Commerce Administrative Law Judge fined seven Los Angeles-area SCUBA divers a total of $132,000 ($100,000 against the divemaster alone) in a civil action brought by the National Park Service and NOAA. The regulation at issue prohibited "alteration of, or construction on, the seabed. . . ." The divers actions which gave rise to their convictions consisted of hand fanning of the bottom sediments and/or the striking of rocks with a hand-held geologist's hammer. Among the arguments the divers made was that they had salvage rights under admiralty law. The Court said that even if the divers had pre-existing rights, the Secretary (of Commerce) could still regulate that right when the regulations came into effect.
The Court stated that "when the federal government creates a national park in navigible waters, possession of resources beneath those water vests in the United States." The court specifically stated that this principle applied to marine sanctuaries. The statute allows for the imposition of a $50,000 fine for each violation of regulations to implement the Sancturies Act, and the Judge refused to upset the fines.
It is interesting to note that the Sanctuaries and Reserves Division of NOAA holds a seat on the Marine and Coastal Ecosystems Directorate of the UN Man and the Biosphere Program as that Directorate's representative to the Coordinating Committee for Biosphere Reserves.
WHAT'S HAPPENING IN
THUNDER BAY?
AND SHOULD YOU CARE?
In 1981, Thunder Bay was established as the first State of Michigan underwater preserve to protect "abandoned property of historical value or ecological, educational, geological, or scenic features or formations having recreational, educational, or scientific value." The Preserve is 288 square miles and goes from the high water mark to the 150 foot depth line with Middle Island (the Alpena County line) as its northern border and South Point (southern Alpena County line) as its south border. This was done at the request of local SCUBA divers to protect the shipwrecks in shallower waters from being scavenged so that there would be interesting sights to see when diving in the Bay.
In 1983, at the request of then-Governor Blanchard, Thunder Bay was placed on the Site Evaluation List for consideration as a National Marine Sanctuary under the US Dept of Commerce, National Oceanic and Atmospheric Administration (NOAA). In 1991, NOAA put it on the active list and has been working at taking over the site ever since.
The Sanctuary proposed by NOAA encompasses 808 square miles running from Rogers City to Harrisville and involving three counties, Presque Isle, Alpena and Alcona. It would also stop at the water's edge, but would involve construction of a Visitor's Center and administrative offices and related land based projects. The Federal Government states that at this time they have no plans to regulate fishing or water quality, but would concentrate on the Sanctuary waters. It states that the State would have the primary role in regulating the Preserve but the Federal Government would regulate those areas not covered by the State -- approximately 2/3 of the site. The Federal Government also plans on imposing regulations in areas where the State does not regulate -- such as property which is not abandoned. This, for example, would apply to a boat which was swamped or sunk in the sanctuary which the owner or his insurer wants to recover and repair. Generally, the Federal Government would prohibit all activities which might adversely affect the shipwrecks, old docks, dumpsites and the like unless they are minor projects. Any other activity would require a permit. Dredging of the shipping channel would be severely limited and much more expensive since the dredged sand would have to be placed on land, away from the shoreline, rather than in the open waters as is now the case.
One might ask if Thunder Bay is unique in the number of shipwrecks. According to the NOAA consultant, there are estimates of as many as 10,000 shipwrecks on the Great Lakes. There are an estimated 126 to 160 in the proposed Sanctuary area. There are 34 known losses. There are 11 areas in Michigan alone which have been designated as Underwater Preserves, six of which are in Lake Huron. While, at this time, the Site Evaluation List for further designations is not active due to lack of funding, several other Great Lakes sites have been on this list in the past, and could be again. Therefore, it is obvious that Thunder Bay is not unique and what is happening to the people in that area could happen to you.
A number of local organizations are not in favor of the designation or any change in the regulations that govern the area. Most people seem to feel that the State is doing a fine job of management. The Presque Isle County Board of Commissioners has adopted a Resolution against the designation. Also in opposition are the Michigan Salmon and Steelhead Fisherman's Association (MSSFA), the Michigan United Conservation Clubs and the Thunder Bay Steelheaders, according to a September 10, 1996 article in the Alpena News. Jim Vandermaas, president of MSSFA, was quoted as saying: "Focus groups are being deliberately and very selectively stacked to achieve the goals that NOAA . . . wants to reach. . . .Along with them is the 'powerful' backing of Michigan State University because of the 'raw pork' they expect to get in the form of grant funding, along with the position of sanctuary manager. NOAA wants total control . . . it's the only result they will be satisfied with." The fishing groups are concerned that NOAA will turn control of the fishery resource over to the US Fish & Wildlife Service which is on record against the introduction of salmon and determined to concentrate on Lake Trout. Jim Johnson, the Alpena DNR Fisheries researcher is very concerned and wants to make certain that NOAA be permanently excluded from controlling research and fishing activities. Don Inman of the Roscommon MDNR District Office has also expressed concern.
According to the Alpena News, local divers and those from all over the State of Michigan are opposed to the Sanctuary. In one Sanctuary area, user fees rose over 400% in a very brief time. Most recreational divers do not dive below 60 feet. Very few of the shipwrecks in Thunder Bay are at that depth or shallower. While salvage divers with a lot of experience can and do dive deeper, they need to use lights to see anything and have to take special precautions to avoid the bends. The reason that these shipwrecks are in such good shape and have such appeal to researchers is precisely because they are virtually inaccessible to divers. That statement is true, however, of most of the shipwrecks in the Great Lakes. They are very well preserved because of the extremely cold water at those depths.
Other than MSU professors and NOAA representatives, is anyone in favor of this Sanctuary? According to Sue Adams, a representative of US Congressman Bart Stupak, ". . . Rep. Stupak does support the sanctuary. He said that there are other communities in his district that would welcome this sanctuary with open arms if the people here don't want it."
Despite obvious objections from local people and DNR representatives, NOAA proceeds onward. Maureen Rudel spoke to Ole Varner, NOAA General Counsel on July 8, 1997 and asked what it would take to make NOAA go away. He indicated that the only way to stop the project was to have Governor Engler veto it. Since NOAA was asked to come in by a Governor (even if it wasn't this one) only a Governor can make it go away. According to Lawrence N. Witte, Chief of the Land and Water Management Division of the DEQ, Governor Engler has not yet taken a position on the proposed Sanctuary. At present the DEQ is reviewing the Draft Environmental Statement/Draft Management Plan and will make recommendations to the Governor.
According to the Office of Ocean and Coastal Resource Management of NOAA, NOAA is committed to the preservation and management of historic and cultural resources within sanctuaries. The designation of the Florida Keys National Marine Sanctuary has focussed NOAA's attention on the controversial issue of treasure hunting. It holds that the "removal of financially valuable artifacts for private profit is incompatible with responsible cultural resource management as described in the Federal Archaeological Program and is prohibited within the sanctuaries. Treasure hunting is prohibited within the Sanctuaries to preserve cultural resources for non-destructive uses such as research, education, and recreation."
It further states: "Consistent with the Abandoned Shipwreck Act (ASA) of 1987, recovery of artifacts may be permissible under limited circumstance where no natural resources are destroyed and historically significant artifacts are preserved in museums with public access. NOAA is prohibited by statute from permitting the sale of archaeologically important materials found within the sanctuaries. Federal title to archaeological materials may only be transferred to private individuals under certain conditions where the material is proven to be of no archaeological value.
"NOAA has successfully prosecuted divers for illegally recovering artifacts in the Channel Islands NMS (Clifton B. Craft, et al. vs. National Park Service, et al., NO. 92-1769 [C.D. Cal.]). This case was significant for the determination that NOAA can regulate salvors whose rights under admiralty existed before the designation of a sanctuary."
It is clear from the proposed Memorandum of Understanding (MOU) from August of 1996, that NOAA intends to take a very active role in regulating the activities which would take place in the proposed Sanctuary. The Assistant Attorney General of the State of Michigan who reviewed this draft noted:
"Unless otherwise specifically prohibited, there is no general prohibition on any activity within a sanctuary. 15 CFR Sec. 922.42. Thus, it is inaccurate to state that
"Under Sanctuary regulations, the following activities are prohibited within the Sanctuary: 1) constructing on or otherwise altering or constructing on the bottomlands (including dredging, disposal, filling, channeling or placing any man-made structure or installed device or facility);. . ." Draft MOU at page 2.
After cautioning the DNR that the MOU must specifically state the purpose for which the Sanctuary is being proposed and should affirmatively state that it does not authorize federal regulation or oversight of state regulation of fishing boating or diving activities that do not directily threaten identified underwater cultural resources, the Assistant Attorney General noted:
"Under regulations of general applicability, the federal government regulates the exercise of otherwise prohibited activities. Even activities permitted by existing state permit may be regulated by the federal government. 15 CFR Sec. 922.47(a). Holders of existing state permits must have them certified pursuant to federal regulations if the state permitted activity is prohibited within the Sanctuary. 15 CFR 922.47(b)."
The language of the proposed MOU leaves many DNR officials concerned about the scope of the the federal government's regulatory reach. They are concerned that fishing, boating, dredging, etc. will be limited in ways which are not necessary to protect the shipwrecks. They are also concerned that the MOU only lasts for five years. After that time, will the federal government simply expand its jurisdiction into areas which have been traditionally regulated by the State?