September 14, 2016 (NCFC) — In a letter today to Christy Goldfuss, Managing Director of the White House Council on Environmental Quality, representatives of the Atlantic offshore lobster, red crab, squid, and whiting fisheries challenged the legality of the use of the Antiquities Act in the declaration of a new marine monument off the coast of New England.
I. THE ANTIQUITIES ACT DOES NOT ALLOW FOR MARINE MONUMENT DESIGNATION IN THE EXCLUSIVE ECONOMIC ZONE
The letter, which was authored by attorneys from law firm Kelley Drye & Warren, representing the fisheries, argued the President’s use of the Antiquities Act to declare new marine monuments in the United States’ exclusive economic zone (EEZ) is “an illegal and illegitimate use of presidential authority.” The letter specifically notes the legal contradiction between the applicability of the Antiquities Act – passed in 1906 – and the EEZ, which was not established until 1976.
“The Antiquities Act did not apply to areas to which Congress staked its MSA [Magnuson-Stevens Act]-based claims, moreover, because the United States had never claimed any right or authority to manage the area for fisheries, natural resource protection, or anything else, prior to 1976”, the letter states. “Indeed, the MSA provides that it is “to maintain without change the existing territorial or other ocean jurisdiction of the United States for all purposes other than the conservation and management of fishery resources.”
II. FISHERIES ARE BEST MANAGED UNDER THE MSA
According to the letter, fisheries should instead be managed under the process established by the Magnuson-Stevens Act, particularly the successful marine conservation efforts undertaken by the New England and Mid-Atlantic Fishery Management Councils. The councils are required to operate according to science-based management.
“The MSA requires decisions to be made based on the best scientific information available,” the letter states. “In complete and total contrast, the monument ultimately designated in the Atlantic was largely the result of a series of political compromises layered with a thin veneer of public outreach.”
III. THE PROPOSAL IS NOT NARROWLY TAILORED AS REQUIRED UNDER THE ANTIQUITIES ACT
Finally, existing federal law requires monuments to be as tightly confined to the area necessary to accomplish their objectives as possible. The letter states this is not the case for the proposed monument in the Atlantic.
“The proposal for a monument designation in the Northwest Atlantic canyons is not narrowly tailored to achieve its objectives,” the attorneys wrote. “Unlike the deliberative, scientifically- based fishery management council activities to protect habitat based on the presence of or suitability for corals, a restricted fishing area based solely on geographic location and depth contour is neither narrowly tailored, nor practically defensible.”
For further information or to arrange interviews with any of the fishermen mentioned in the letter, please contact NCFC Executive Director Bob Vanasse at bob@savingseafood.org.