Saving Seafood

SEAN HORGAN: Chief Justice Roberts Takes Aim At Antiquities Act

March 30, 2021 — It sounds as if Supreme Court Justice John Roberts thinks the practice of presidents abusing the Antiquities Act, to accomplish what they never could in the usual three-corner offense of American democracy, has gotten old.

Last week, the Supreme Court rejected a petition, with the Massachusetts Lobstermen’s Association as lead plaintiff, that challenged then President Barack Obama’s legal use of the 1906 Antiquities Act to designate the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts.

Viewed through the narrowest of prisms, the Supreme Court no-call was a victory for marine conservationists and another blow to the commercial fishing industry. But viewed with a wider lens, it could also serve as the starting gun for even more challenges to the presidential use of the Antiquities Act to designate monuments and landmarks when all other political measures fail.

The chief justice, according to a Bloomberg Law story, questioned how much scope presidents actually should have under the law “that was intended to protect prehistoric Indigenous artifacts and the smallest area compatible with protection.

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” Roberts wrote. “A statute permitting the president in his sole discretion to designate monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

Court watchers and the legal community were agog. This, they said, almost never happens. Color us agog, too.

“Fishing groups opposed to the Northeast canyons monument are disappointed the court refused to hear the case,” the Bloomberg Law story stated, adding though that Roberts’ statement was being viewed by the industry (well, its lawyers) as a silver lining.

“It’s a big deal for the chief to file a statement like that,” Jonathan Wood, senior attorney at the Pacific Legal Foundation, who represented the fishing interests. “I read it basically inviting similar cases. It’s trying to send a signal to the Supreme Court bar of, ‘This is an issue I’m interested in. Start bringing me the cases’.”

We here at FishOn have never been to the Supreme Court bar, but we too would like them to start bringing us some cases. Start with the Jameson and we’ll work our way around the dial.

Read the full opinion piece at the Gloucester Daily Times

Top Natural Resources Republican asks Haaland for details on national monuments

March 29, 2021 — Rep. Bruce Westerman (Ark.), the top Republican on the House Natural Resources Committee, requested further information Monday from Interior Secretary Deb Haaland on the department’s review of the boundaries and protections of national monuments.

The Trump administration reduced the boundaries of two Utah sites, Bears Ears and Grand Staircase-Escalante.

Biden in January ordered a review of the boundaries with a report of its findings issued within 60 days. However, the department has since announced it will publish the report after Haaland completes a visit to the monuments in April, after the 60-day window.

“While the planned visit to Utah, as well as reports of DOI [Department of the Interior] aides meeting with stakeholders, are encouraging steps, many matters remain unclear. For example, there is uncertainty whether DOI plans to initiate a formal, public comment period and how local support for the Trump administration’s decision will factor into future analysis,” Westerman wrote.

Read the full story at The Hill

Supreme Court won’t hear fishermen case against ocean monument

March 23, 2021 — The Supreme Court on Monday rejected an appeal from a fishing group that challenged the creation of a large federally protected area in the Atlantic Ocean.

The group sued to try to get rid of the Northeast Canyons and Seamounts Marine National Monument, which became the first national ocean monument in the Atlantic when President Barack Obama created it in 2016. The area consists of 5,000 square miles off New England, and it is home to fragile deep-sea corals.

The fishermen sued in federal court saying the establishment of a protected zone where they have historically fished for lobsters and crabs could hurt their livelihoods. Federal district and appellate courts ruled that the monument was created appropriately by Obama, who used the Antiquities Act to establish it.

The high court denied a request to take a look at the case. Chief Justice John Roberts wrote that the creation of a national monument was “of no small consequence,” but the petitioners did not meet the criteria to bring it before the Supreme Court.

Roberts also wrote that the court has never considered how such a large monument can be justified under the Antiquities Act, which President Theodore Roosevelt created more than a century ago to preserve artifacts such as Native American ruins. Roberts wrote it’s possible the court could be presented a better opportunity to consider that issue in the future.

Read the full story at the Associated Press

Lobstermen ask high court to hear monument challenge

July 31, 2020 — The legal battle over the creation of the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts is starting to feel like the Hundred Years’ War in Europe of the 14th and 15th centuries.

Commercial fishing interests, with the Massachusetts Lobstermen’s Association as lead plaintiffs, this week filed a petition asking the U.S. Supreme Court to hear its challenge of the use of the federal Antiquities Act by President Barack Obama in 2016 to create the 5,000 square-mile marine national monument about 130 miles off Cape Cod.

The petition represents the third time fishing interests have tried legal challenges to the creation of the only marine national monument in the Atlantic Ocean. They were unsuccessful in the first two.

In the petition, attorneys representing the MLA and other commercial fishing stakeholders, question whether the Antiquities Act “applies to ocean areas beyond the United States’ sovereignty where the federal government has only limited regulatory authority.”

The petition charges the use of the Antiquities Act circumvents the National Marine Sanctuaries Act and questions whether Obama evaded the Antiquities Act’s “smallest area requirement” by designating “ocean monuments larger than most states.” It also maintains that the use of the act to create the marine national monument is a threat to the Constitution’s separation of powers.

Read the full story at The Salem News

Environmental groups fight rollback of marine monument protections

June 10, 2020 — Environmentalists are vowing they will sue to reinstate fishery closures to a marine national monument 130 miles southeast of Cape Cod that President Donald Trump removed by executive order last Friday at a meeting held in Maine.

 

The Northeast Canyons and Seamounts Marine National Monument was created by President Barack Obama in 2016 using the Antiquities Act of 1906, a process President George W. Bush used to create a national marine monument off Hawaii in 2006, as well as 15 presidents dating back to Theodore Roosevelt. The Antiquities Act was used, proponents said, because it can be put in place more quickly than fisheries regulations that can take years, if not decades, to be implemented. Also, the protections are in theory permanent, whereas other fisheries regulations are often amended.

“We’re taking them to court,” said Peter Shelley, senior counsel at the Conservation Law Foundation. “It’s a matter of putting the paperwork together and getting the strongest case possible.”

“It’s very clear that the president can establish these areas, but he has no authority to modify or remove them,” said Gib Brogan, fisheries campaign manager at Oceana.

Similar cases are being fought around two other national monuments, Bears Ears and Grand Staircase-Escalante, both in southern Utah. Trump stripped both monuments of federal protections by dramatically reducing them in size in December 2017 to allow for mineral extraction, mining, and off-road use.

Brad Sewell, director of the Natural Resources Defense Council’s oceans division, said his organization also intends to challenge the Northeast Canyons rollback in court.

Read the full story at the Cape Cod Times

Trump opens sea monument to commercial fishing

June 8, 2020 — We here at FishOn get most of our news from the man with cleft stick that visits our village, barring the monsoon, on a semi-regular basis. It’s a bit cumbersome, but that’s the price you pay for enlightenment. At least he doesn’t do a podcast.

That’s how we learned that President Donald Trump traveled up to our neck of the woods — well, Maine — last Friday and held a roundtable discussion with members of the Pine State’s seafood industry. Though, according to our crack FishEye investigative team onsite, the tables were actually horizontal. We plan a 10-part series.

Trump, as you might have heard, signed a proclamation re-opening the 5,000 square-mile Northeast Canyon and Seamounts — which lie about 130 miles of Cape Cod — to commercial fishing. With one sweep of the pen, Trump heartened commercial fishing interests in Maine and beyond and enraged conservation and environmental groups throughout the solar system.

The marine national monument has been a wren’s nest of contention from the day in 2016 that President Barack Obama signed it into existence. Obama used the 1906 Antiquities Act —not exactly the bedrock legislation for national fisheries management — to create the first marine monument in the Atlantic Ocean.

Read the full story at the Gloucester Daily Times

Trump issues proclamation reopening national monument to fishing

June 5, 2020 — U.S. President Donald Trump has issued a proclamation reopening the Northeast Canyons and Seamounts Marine National Monument, located off the coast of New England, to commercial fishing.

The 4,913-square-mile protected area was created under the Antiquities Act in 2016 by then-President Barack Obama, resulting in a ban on commercial fishing, mining and drilling there, though he made a seven-year exception for the lobster and red crab industries.

Read the full story at Seafood Source

Trump administration loses bid to dismiss monument lawsuits

October 2, 2019 — A federal judge has rejected the Trump administration’s bid to dismiss lawsuits challenging the constitutionality of a 2017 decision to downsize two sprawling national monuments in Utah.

U.S. District Court Judge Tanya Chutkan’s written decisions issued Monday night means the legal challenges seeking to return the Bears Ears and Grand Staircase-Escalante national monuments to their original sizes can move forward.

Chutkan didn’t decide the key question at the core of the lawsuits: Does the Antiquities Act give presidents the power to create monuments as well as reduce them?

The government has already created new management plans for the downsized monuments. President Donald Trump downsized Bears Ears by 85% and Grand Staircase by nearly half.

The lawsuits were filed by environmental organizations, tribal coalitions, an outdoor recreation company and a paleontology organization.

Those groups celebrated getting over an initial hurdle as they attempt to reverse decisions they say left sensitive lands and sites vulnerable to damage. Lands cut from the monuments are still under protections afforded to federal lands but are now open to oil and gas drilling and coal mining.

Read the full story at the Associated Press

REP. ROB BISHOP: It’s Time for Congress to Reform the Antiquities Act

May 3, 2019 — As the new Democratic chairman and top Republican on the House Natural Resources Committee, respectively, Arizona Congressman Raul Grijalva and I recently presided over a hearing examining the status of presidentially declared national monuments under the Antiquities Act, including Utah’s Bears Ears and Grand Staircase-Escalante National Monuments.

I followed-up with a letter to Chairman Grijalva with a simple invitation: Let’s write a national monuments reform bill together that does exactly what he said he wants during that panel.

While the hearing initially focused on two Utah monuments, it didn’t take long for the whole room to realize we were confronting a deeper problem. Republicans, Democrats, and local stakeholders have all expressed frustration with the Antiquities Act. As written, the act incentivizes presidents of both major political parties to sidestep transparent democratic processes by mandating unilateral land use decisions. Consequently, voices from all sides of the political spectrum have been silenced and ignored even as generational decisions about their futures were being made behind closed White House doors.

The Antiquities Act is the law by which presidents have designated monuments ranging from Devil’s Tower in Wyoming to Arizona’s Casa Grande Ruins and Montezuma Castle. Rightly, some monuments enjoy overwhelming local support prior to designation. Due to a lack of a Congressional review requirement for  presidential declarations, designations under the Antiquities Act can be promulgated quickly to protect against imminent threats.

That feature of speedy monument designation can also be a curse. This fact has been amply, painfully demonstrated to communities across my state. In the last few decades, presidents have outright abused the Antiquities Act in Utah. Regardless of how you feel about the areas that were designated, the fact that Presidents Clinton and Obama came in the dead of night — without any input from state or local elected officials! — and locked up millions of acres of land is outrageous. Local representation opposed the massive monuments. The livelihoods of ranchers and access for recreators was scuttled overnight, and the traditions of families with generations of responsible land stewardship were suddenly upended without due process.

Read the full opinion piece at The Daily Caller

Western Pacific Council Director: Marine Monuments ‘Major Impediment’ to U.S. Fisheries

WASHINGTON — May 1, 2019 — The following was released by the National Coalition for Fishing Communities:

In testimony before a House subcommittee today, Kitty Simonds, the Executive Director of the Western Pacific Regional Fishery Management Council (WPRFMC) labeled the increasing number and size of marine monuments a “major impediment” to U.S. fisheries. According to Ms. Simonds, these designations force fishermen to travel farther, longer, and at greater costs, with little conservation benefit.

Members of Saving Seafood’s National Coalition for Fishing Communities also submitted a letter to the Subcommittee, which was entered into the committee hearing record, asking that fishing inside of the marine monuments be managed under the Magnuson-Stevens Act, and that future monument designations include input from commercial fishermen. The letter notes that previous monument designations were made “with no formal public hearings, cost-benefit analyses, or input from affected constituents, and despite no compelling reason or threat to marine resources.”

“The Council process allows for stakeholders, scientists, and concerned citizens to review and debate policy decisions in a transparent manner,” the letter states. “In contrast, the Antiquities Act authorizes the president to take away public areas and public resources with no public input. Using executive authority, the President can close any federal lands and waters in an opaque, top-down process that too often excludes the very people who would be most affected.”

The letter was signed by 20 fishing organizations and 8 fishing vessels, representing fishermen from 11 states: California, Connecticut, Florida, Hawaii, Massachusetts, Maryland, North Carolina, New Jersey, New York, Oregon, and Rhode Island.

Ms. Simonds cited other negative consequences of the policy, including making it harder to prevent illegal fishing by foreign vessels in the U.S. EEZ; limiting, along with other closures, fishermen to operate in as little as 17 percent of the U.S. EEZ; and a decrease in the number of longline vessels and the amount of their catch.

“These prohibitions have forced our fishermen out of more than half of the U.S. [Exclusive Economic Zone] EEZ in the [Western and Central Pacific Ocean] and onto the high seas, where they are forced to compete with foreign fleets on the fishing grounds,” said Ms. Simonds in her testimony, delivered before the Natural Resources Subcommittee on Water, Oceans, and Wildlife. “Currently 70 percent of the Hawaii longline effort is on the high seas. We also know, based on expert scientific knowledge, that forcing U.S. vessels out of U.S. waters has no conservation benefit to tuna and highly migratory stocks or to protected species.”