Whether a president can change federal regulations established through government agency rule-making procedures was debated in a Honolulu courtroom Tuesday as a potential linchpin of a lawsuit over commercial fishing in a Pacific marine monument.
A U.S. Department of Justice attorney from Washington, D.C., could not cite legal precedent or other authority for such power, though a U.S. District Court judge hearing the case did not make an immediate ruling.
The case pertains to an April 17 proclamation from President Donald Trump allowing fishing by U.S.-flagged vessels in parts of the Pacific Islands Heritage Marine National Monument south and west of Hawaii.
Shortly after the proclamation and an April 25 U.S. National Marine Fisheries Service letter to all commercial fishing permit holders declaring the change effective, fishing within some parts of the monument resumed by vessels in Hawaii’s longline fleet that provides most of the fresh tuna and swordfish catch for the local market.
A hui of Hawaiian cultural practitioners called Kapa‘a, along with the Conservation Council for Hawai‘i and the Center for Biological Diversity, filed the lawsuit May 22 alleging that Trump and the Fisheries Service can’t undo federal regulations prohibiting commercial fishing in parts of the monument without formally amending those regulations through a process that includes an opportunity for affected parties to provide input.
On Tuesday, U.S. District Judge Micah Smith heard arguments in the case, and repeatedly pressed DOJ attorney Sara Warren for the basis of Trump repealing a Fisheries Service prohibition on commercial fishing in the monument.
“We’ve spent a significant amount of time during this argument where I’ve asked you for some basis for your view, and I haven’t heard one yet,” Smith said. “What is the case, what is the principle, what is the authority for the position that a proclamation can wipe away a formal regulation that has been promulgated through notice and comment? … What are you relying on for your position?”
Warren gave an answer that didn’t appear convincing to the judge, who characterized it as a restatement of the administration’s position instead of support for the validity of the position.
“Can you cite me a single case from a single court that has ever held that the president can simply, by stroke of the pen, erase formal regulations that have been promulgated through notice and comment procedures?” Smith pressed further.
“Your honor,” Warren replied, “we haven’t identified that case, but I don’t think that is an issue that arises very often.”
Smith then questioned whether the issue would not indeed arise quite often if presidents could exercise such power.
The judge recognized that well-established presidential power and practice exists for one president to issue proclamations that reverse proclamations of prior presidents.
But David Henkin, an Earthjustice attorney representing plaintiffs in the case at hand, argued that Trump went further with his April 17 proclamation because the Fisheries Service previously went through a formal rule-making process to restrict commercial fishing in parts of the monument area following proclamations by earlier presidents.
President George W. Bush in 2009 established an initial form of the monument, originally known as the Pacific Remote Islands Marine National Monument, by proclamation to create national wildlife refuges with commercial fishing bans radiating out 50 miles around Howland, Baker and Jarvis islands; Johnston, Wake and Palmyra atolls; and Kingman Reef.
Shortly thereafter, the Fisheries Service issued a letter to commercial fishing permit holders advising them of the change that it said became immediately effective under Bush’s proclamation.
Henkin said in his argument before Smith that this was fine because Bush’s proclamation did not alter any existing federal regulation.
Four years later, in 2013, the Fisheries Service codified the prohibition in its regulations through the formal rule-making process.
A similar effort began in 2014 when President Barack Obama by proclamation expanded the protected area to 200 miles around Jarvis Island, Johnston Atoll and Wake Atoll to create the world’s largest marine protected area.
The Fisheries Service later codified Obama’s prohibition in its regulations through the rule-making process, though the changes did not eliminate what Bush established earlier by proclamation followed by formal rules.
Attorneys representing the Trump administration argued in a written brief that Trump’s proclamation calls for formal rule-making in line with the proclamation, but that the proclamation also immediately repealed the fishing prohibitions established under Obama in waters from 50 to 200 miles around Jarvis Island, Johnston Atoll and Wake Atoll.
“As with the previous Proclamations concerning the Monument, the provisions related to commercial fishing had immediate effect,” the attorneys said in their filing.
Henkin disagreed, telling Smith that the formal regulation that Trump aims to undo can only be undone through the rule-making process.
“These regulations remain on the books,” he said. “They need to revise this regulation.”
No such rule-making process has begun, Warren told the judge.
Smith said he intends to issue a written decision expeditiously.
Source: The Garden Island