, Gloucester, MA

September 14, 2009

Lawyers: Pew wrongly 'taking control' of oceans

By Richard Gaines

Well endowed and powerful environmental philanthropies — notably the Pew Charitable Trusts — have wrested control over the agenda for ocean policies from traditional, broad-based political forces, according to lawyers writing in an American Bar Association newsletter.

The authors James P. Walsh and Gwen Fanger of the San Francisco firm Davis Wright Tremaine LLP warn that Pew and similar groups — though no others are named — are moving aggressively and even cynically to shape ocean policies.

The case study in point was Pew's alliance with and support for former President George W. Bush who claimed what Walsh and Fanger describe as dubious constitutional authority to unilaterally declare three massive Pacific Ocean sectors to be Marine Protected Areas — together representing an ocean area of 335,488 square miles, larger than the land mass of California.

The authors traced the history of the efforts to cordon off the three unattached areas from most forms of commercial fishing and resources extraction and noted that indigenous interests which opposed the takings were swept aside in the claimed authority of the President to act without Congressional authorization.

Writing in the August issue of the bar association's Maritime Resources Committee Newsletter, Walsh and Fanger concluded that the action by Bush was probably "unlawful."

They were harsh in chastising Pew for praising Bush's expansion of executive power and anointing him with a "Blue Legacy." "Given the Pew Charitable Trusts' environmental views, particularly on global warming" — a development the ex-president continually denied — the praise struck the authors as seeming to be "like a Faustian bargain." The newsletter notes that the authors were not writing on behalf of the bar association.

Jane Lubchenco, at the time a member of the faculty of Oregon State University and now the administrator of oceans for the Obama administration, had urged complete shutdown of commercial fishing in the Marianas.

Lubchenco was a leading scientist in the global network of university grant recipients from Pew which along with the Environmental Defense Fund, has locked arms with Lubchenco to push a privatization of fisheries that would convert the commonly held resources into tradeable "catch shares."

The regulation by catch shares — and the impact of it - is in the spotlight in Gloucester today because of the New England Fishery Management Council's June vote to go along the NOAA-pushed catch share format for regulating the New England fishery next year.

Pew played a lead role in the campaign that ended with Bush's decision to use the 1906 Antiquities Act, enacted to allow the creation of national monuments on federal land, to create a marine protected area around the Commonwealth of the Northern Mariana Islands; the remote islands of Wake, Howland, Baker, Jarvis, Johnson Atoll, Kingman Reef and Plymra Atoll; and the Rose Atoll, near American Samoa.

Earlier, he had used the same authority to create a marine protected area in the Northwestern Hawaiian Islands. In all cases, the claimed authority of the Antiquities Act allowed Bush to achieve the goal without the need of publishing environmental impact statements, or put the ideas to congressional vetting.

Pew initiated the campaign to create a marine protected area around the Northern Marianas — the American territory farthest west from the mainland — and successfully threw a public information veil around the isolated islands that prevented the widespread objections of the governor and indigenous peoples to penetrate the mainstream media.

The plea of commonwealth Gov. Benigno R. Fitial for a "full and complete" analysis of the cultural, economic and environmental impacts fell on deaf ears. The Marine National Monument, he wrote, would "greatly reduce or eliminate the ability of the (commonwealth's) government to carefully balance cultural, environmental and economic considerations."

The governor reminded the president that the commonwealth's Constitution gives ownership of the submerged lands to the indigenous people; he also recalled that for "over 20 years," the people had been "engaged in discussions regarding ownership and management."

Fitial also explained to President Bush that the commonwealth "is working to expand its fishing fleet to fill the vacuum in the nation's economic base due to the recent closure of the garment industry and the contraction of tourism."

In a lengthy letter to Bush, Manuel P. Duenas II, president of the Guam Fisherman's Cooperative, traced the islanders' long colonial history, then argued that the idea itself, which came from Pew, represented false science.

"The closing of these areas would only benefit foreign, industrialized fishing fleets that fish along and at times within the fringes of the U.S.' exclusive economic zone," wrote Duenas. He said he feared the federal motive for the action was to clear the region for military exercises.

Until recently, Walsh and Fager, the authors of the paper on Bush and Pew wrote, "the main impetus to ocean policy was broad-based — including ocean industries, scientists and environmental groups — and relied on strong bipartisan Congressional leadership.

"Today," they said, "pressures for change in ocean policy seem to emanate primarily from a few private trust funds, the administrators, and trust family leaders who are pursuing aggressive programs to influence specific outcomes through public "campaigns.'

"One such trust," they wrote, "is the Pew Charitable Trusts."

Founded in Philadelphia by heirs of the founder of the Sun Oil Co., Pew is endowed with more than $4 billion, and recently acquired a 10-story building in Washington, D.C., where it intends to move its headquarters.

Richard Gaines can be reached at