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ARTICLES
An Historical Look at Planning for
the Federal Public Lands: Adding
Marine Spatial Planning Offshore
by Robin Kundis Craig*
1. Introduction
The oceans are presumptively the federal government's to
manage, control, and regulate. The U.S. Supreme Court
has made this point clear on numerous occasions,' and the
U.S. Congress itself has insisted upon it even when it gives
states authority to manage various aspects of coastal marine
resources. For example, in the Submerged Lands Act, Con-
gress largely returned control of the first three miles of the
ocean to the coastal states, but it continued to reserve to
itself authority over the use, development, improvement,
or control by or under the constitutional authority of the
United States of said lands and waters for the purposes of
navigation or flood control or the production of power
. . 2 In the Coastal Zone Management Act, Congress
insisted on federal approval of state Coastal Zone Manage-
ment Plans3 and left the Secretary of Commerce in charge
of the National Estuarine Research Reserve System.' The
Magnuson-Stevens Fishery Conservation and Management
Act explicitly recognizes the federal government's sovereign
right to regulate fisheries in the U.S. Exclusive Economic
Zone (EEZ, the 200 miles of ocean surrounding the
United States').'
* William H. Leary Professor of Law, University of Utah S.J.
Quinney College of Law. The author may be reached at robin.
craig@law.utah.edu. I would like to thank Jessica Wentz and
the other organizers of the 2014 JB. and Maurice C. Shapiro
Conference at the George Washington University School ofLaw, The
Role of Planning and Federal Land Management, for inviting me
to participate. I would also like to thank my Quinney Fellow, Jeffrey
Mathis, for his excellent research for this Article. Nevertheless, this
Article remains my sole responsibility.
1. See, e.g., United States v. Maine, 420 U.S. 515, 524-26 (1975) (upholding the
federal government's paramount authority offshore despite Congress's passage
of the Submerged Lands Act).
2. 43 U.S.C. § 1311(d) (2012).
3. 16 U.S.C. §§ 1454, 1455(d) (2012).
4. Id. § 1461 (2012).
5. U.S. COMM'N ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CEN-
TURY 274-75 (2004) [hereinafter 2004 USCOP REPORT].
6. 16 U.S.C. § 1811(a) (2012).
Legally (albeit not politically), there is nothing that pre-
vents the federal government from reasserting federal control
over all of the 200-mile-wide band of ocean waters and con-
tinental shelf that the United States currently claims under
customary international law. Even assuming the continued
state control over the first three miles of coastal waters, how-
ever, the federal government retains exclusive control over an
enormous swath of marine waters and submerged lands. As
I have argued elsewhere, the continental shelf, in particular,
should be considered federal public lands to the same degree
as national parks, national forests, national monuments, and
other federally-owned terrestrial lands.7
There is one critical management difference between the
federal government's offshore holdings and its terrestrial
properties, however: a planning mandate. Almost all federal
terrestrial holdings are now subject to some form of legal
mandate that the relevant federal agencies plan for those
lands' management and use. Not so the oceans, despite the
numerous and often conflicting uses that citizens and visitors
make of these marine waters and submerged lands.' While
implementation of planning for the oceans has been compli-
cated by the multiply-fractured jurisdiction over its resources,
there is no real debate scientifically or legally that the nation's
marine resources would benefit tremendously from a more
rational management scheme, including planning.'
Even Congress understood this point in 2000, when it
enacted the Oceans Act and instigated a now fourteen-year-
and-counting process of trying to more rationally and pro-
ductively manage the nation's oceans. This process quickly
embraced ecosystem-based management and marine spa-
tial planning as important and necessary goals. Neverthe-
less, given the National Ocean Council's April 2013 final
7. Robin Kundis Craig, Treating Offshore Submerged Lands as Public Lands: A
Historical Perspective, 34 PUB. LAND & RESOURCES L. REV. 51, 91-92 (2013).
8. Robin Kundis Craig, Ocean Governance for the 21st Century: Making Marine
Zoning Climate Change Adaptable, 36 HARV. ENVTL. L. REV. 305, 309-13
(2012); Robin Kundis Craig, Regulation of U.S. Marine Resources:An Overview
of Current Complexity, 19 NAT. RESOURCES & ENV'T 3, 4-9 (2004).
9. 2004 USCOP REPORT, supra note 5, at 76-121; PEW OCEANS COMM'N,
AMERICA's LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE 14, 21-24
(2003) [hereinafter 2003 PEW OCEANS REPORT].
JOURNAL OF ENERGY & ENVIRONMENTAL LAW
Wi nte r 2015](ViewImageLocal?handle=hein.journals/gwjeel6&div=1&collection=&method=preview&ext=.png&size=3)
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