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    • Fishing Terms Glossary

US Chief Justice’s remarks set up likely showdown with Biden over fishing bans

March 25, 2021 — Did US Supreme Court justice John Roberts throw down the gauntlet for president Joe Biden and invite another lawsuit by the commercial fishing industry earlier this week when he expressed his disdain for past use of the Antiquities Act to block off certain parts of the ocean?

That’s what it looks like to seafood attorney Andrew Minkiewicz, a partner at the firm Kelly Drye, in Washington, D.C.

“This doesn’t happen every day or even in a lifetime,” Minkiewicz said of the apparent opportunity for the industry. “The chief justice really outlined his skepticism of the way presidents are using the power that is, or is not, granted to them in the Antiquities Act. And he raises questions a lot of us have had, like, ‘How did we go from trying to protect ancient dwellings from people robbing their artifacts to now 580,000 square miles of ocean being locked up with the stroke of a pen?”

In his four-page explanation, issued Monday, March 22, for why the high court rejected the petition for certiorari led by the Massachusetts Lobstermen’s Association (MLA) and four other fishing groups as part of an effort to allow commercial fishing on nearly 5,000 square miles in the Atlantic Ocean, Roberts practically drew a bull’s eye around the right case to be made next time, Minkiewicz and others believe.

The Pacific Legal Foundation, a libertarian public interest law firm, had argued on behalf of MLA and the other fishing groups that president Barack Obama overstepped his bounds in Sept. 2016 when he used the 1906 antiquities law and proclamation 9496, an executive order, to create the Northeast Canyons and Seamounts Marine National Monument. Roberts said the request didn’t meet the standards necessary to warrant a Supreme Court review, but his explanation indicated he strongly agreed with the sentiment.

Read the full story at Undercurrent News

US Supreme Court turns down marine monuments challenge, for now

March 23, 2021 — Conservationists earned a victory on Monday, 22 March, when the U.S. Supreme Court opted against taking a case that questioned the establishment of national marine monuments. However, Chief Justice John Roberts strongly hinted the court may welcome future challenges of a similar ilk.

The Massachusetts Lobstermen’s Association had asked the nation’s top court to consider its case against the federal government and its use of the Antiquities Act to establish marine monuments, which then-President Barack Obama used to create the Northeast Canyons and Seamounts Marine National Monument in 2016. While the court decided that the lobstermen’s case did not warrant consideration, Roberts took an unusual step in issuing a statement raising issues about the scope of the monuments.

Read the full story at Seafood Source

SCOTUS Won’t Review Marine Monument Case But Issues Warning

March 22, 2021 — The U.S. Supreme Court won’t take up a challenge to Obama-era protections for a marine monument off the coast of New England, in a win for conservationists and blow to fishermen who have fought restrictions in the area for years.

But the denial came with a warning from Chief Justice John Roberts, who expressed concern that presidents have been exercising “power without any discernible limit” when they create new national monuments.

The high court on Monday rejected a petition from the Massachusetts Lobstermen’s Association and other groups that say the 2016 establishment of the Northeast Canyons and Seamounts Marine National Monument exceeded the president’s authority under the Antiquities Act.

In a statement on the court’s denial of the petition, Roberts questioned the scope of presidential authority under the law, which governs monuments. Roberts noted that the act was intended to protect prehistoric Indigenous artifacts and “smallest area compatible” with protection.

That’s of little consolation to fishermen affected by restrictions in the Northeast Canyons monument, said Grant Moore, president of the Atlantic Offshore Lobstermen’s Association, a party to the case.

“His statement leads me to believe that he realizes and understands the complexity of this issue,” Moore told Bloomberg Law. “Unfortunately for the fishing industry, we are just a speck of dust.”

Read the full story at Bloomberg Law

Roberts Harangues Marine Monument as Appeal Runs Aground

March 22, 2021 — The U.S. Supreme Court nixed a challenge Monday to a fishing ban in a massive swath of the Atlantic Ocean that the federal government enshrined as the first-of-its-kind marine monument.

That the court is selective about what cases it hears is widely known — dozens of cases are summarily rejected every week, and today’s order list proved no exception. Singling out this case for attention, however, Chief Justice John Roberts took the unusual step this morning of essentially calling it open season for challenges of the marine monument.

“A statute permitting the president in his sole discretion to designate as 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,” Roberts wrote in a statement about the case.

The statute to which Roberts is referring is the federal Antiquities Act, invoked in 2016 by former President Barack Obama to designate a Connecticut-sized area of commercial fishing zone as the Northeast Canyons and Seamounts Marine National Monument.

“The monument contains three underwater canyons and four undersea volcanoes. The ‘objects’ to be ‘protected’ are the ‘canyons and seamounts themselves,’ along with ‘the natural resources and ecosystems in and around them,’” Roberts added. “We have never considered how a monument of these proportions — 3.2 million acres of submerged land — can be justified under the Antiquities Act.”

Considering that national parks can be established only by an act of Congress, the Antiquities Act gives the president a fair amount of flexibility to protect land and sea. It does specify, however, that any parcels of land granted protection must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

Read the full story at the Courthouse News Service

Chief Justice Roberts Expresses Concerns Over Atlantic Monument Designation

March 22, 2021 — In a decision released this morning declining to review the case the Massachusetts Lobstermen’s Association brought against the federal government, Chief Justice John Roberts indicated he has grave reservations regarding the creation and formulation of the Northeast Canyons and Seamounts Marine National Monument. While he rejected the legal arguments made by the plaintiff’s attorneys as to why the Supreme Court should take the case, the Chief Justice was clear in expressing his concerns about the monument’s designation and scope.

“The Antiquities Act originated as a response to widespread defacement of Pueblo ruins in the American Southwest… A statute permitting the President in his sole discretion to designate as 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. The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery.”

He also suggested that the Supreme Court could take action on this monument and others, noting that several cases that could soon come before the court may raise issues that could truncate or invalidate monuments created using the Antiquities Act.

Statement of Chief Justice Roberts respecting the denial of certiorari:

Which of the following is not like the others: (a) a monument, (b) an antiquity (defined as a “relic or monument of ancient times,” Webster’s International Dictionary of the English Language 66 (1902)), or (c) 5,000 square miles of land beneath the ocean? If you answered (c), you are not only correct but also a speaker of ordinary English.  In this case, however, the Government has relied on the Antiquities Act of 1906 to designate an area of submerged land about the size of Connecticut as a monument—the Northeast Canyons and Seamounts Marine National Monument.

The creation of a national monument is of no small consequence. As part of managing the Northeast Canyons and Seamounts Marine National Monument, for example, President Obama banned almost all commercial fishing in the area with a complete ban to follow within seven years.  Presidential Proclamation No. 9496, 3 CFR 262, 266–267 (2016). According to petitioners—several commercial fishing associations—the fishing restrictions would not only devastate their industry but also put severe pressure on the environment as fishing would greatly expand in nearby areas outside the Monument.  Although the restrictions were lifted during this litigation, Presidential Proclamation No. 10049, 85 Fed. Reg. 35793 (2020), that decision is set to be reconsidered and the ban may be reinstated, Exec. Order No. 13990, 86 Fed. Reg. 7037, 7039 (2021). Either way, the Monument remains part of a trend of ever-expanding antiquities. Since 2006, Presidents have established five marine monuments alone whose total area exceeds that of all other American monuments combined. Pet. for Cert. 7–8.

The Antiquities Act originated as a response to widespread defacement of Pueblo ruins in the American Southwest. Because there was “scarcely an ancient dwelling site” in the area that had not been “vandalized by pottery diggers for personal gain,” the Act provided a mechanism for the “preservation of prehistoric antiquities in the United States.” Dept. of Interior, Nat. Park Serv., R. Lee, The Antiquities Act of 1906, pp. 33, 48 (1970) (internal quotation marks omitted).  The Act vests significant discretion in the President, who may unilaterally “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”  54 U. S. C. §320301(a). The President may also reserve “parcels of land as a part of the national monuments,” but those parcels must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.” §320301(b).

The broad authority that the Antiquities Act vests in the President stands in marked contrast to other, more restrictive means by which the Executive Branch may preserve portions of land and sea. Under the National Marine Sanctuaries Act, for example, the Secretary of Commerce can designate an area of the marine environment as a marine sanctuary, but only after satisfying rigorous consultation requirements and issuing findings on 12 statutory criteria.  See 16 U. S. C. §1433(b).  The President is even more constrained when it comes to National Parks, which may be established only by an Act of Congress. See 54 U. S. C. §100101 et seq.

While the Executive enjoys far greater flexibility in setting aside a monument under the Antiquities Act, that flexibility, as mentioned, carries with it a unique constraint: Any land reserved under the Act must be limited to the smallest area compatible with the care and management of the objects to be protected. See §320301(b). Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint. A statute permitting the President in his sole discretion to designate as 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.

The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery. The Monument contains three underwater canyons and four undersea volcanoes. The “objects” to be “protected” are the “canyons and seamounts themselves,” along with “the natural resources and ecosystems in and around them.” Presidential Proclamation No. 9496, 3 CFR 262.

We have never considered how a monument of these proportions—3.2 million acres of submerged land—can be justified under the Antiquities Act. And while we have suggested that an “ecosystem” and “submerged lands” can, under some circumstances, be protected under the Act, see Alaska v. United States, 545 U. S. 75, 103 (2005), we have not explained how the Act’s corresponding “smallest area compatible” limitation interacts with the protection of such an imprecisely demarcated concept as an ecosystem.  The scope of the objects that can be designated under the Act, and how to measure the area necessary for their proper care and management, may warrant consideration—especially given the myriad restrictions on public use this purely discretionary designation can serve to justify.  See C. Vincent, Congressional Research Service, National Monuments and the Antiquities Act 8–9 (2018) (detailing ways in which “management” of a monument limits recreational, commercial, and agricultural uses of the surrounding area).

Read the full statement here

Cape Cod lobstermen get free gear to protect endangered right whales

March 22, 2021 — Provincetown lobsterman Bill Souza walked back to his truck carrying a swag bag filled with what looked to be fluorescent orange bucatini. They were like the “bamboo finger trap” puzzles he’d seen as a kid, Souza explained, pulling one “noodle” out of the bag.

The weave on the fabric expanded as Souza stuck a finger in one end of the hollow piece of rope known as a South Shore Sleeve. As he tried to pull his finger out, the weave on the fabric tightened, gripping his finger until he pulled hard enough for it to let go.

This was not a child’s toy that the Massachusetts Lobstermen’s Association, the Lobster Foundation of Massachusetts and the state Division of Marine Fisheries were handing out to fishermen gathered Friday at the Cape Cod Commercial Fishermen’s Alliance building. These sleeves and spools of red 3/8-inch rope were developed and given to fishermen around the state to introduce them to the gear they will be using in the coming fishing season. That change is part of a suite of measures passed by the state Marine Fisheries Commission to comply with a judge’s order to reduce entanglements of endangered right whales in state waters.

Read the full story at the Cape Cod Times

A legal war, a Biden win: What’s next for a marine monument?

December 11, 2020 — When Grant Moore first started lobstering, he thought of the ocean as a vast expanse with an endless supply of marine life ripe for the catching.

But when he took to his boat off the coast of Massachusetts, it wasn’t long before he began bumping up against the operations of Canadian fishers. And over the course of his 40-year career, he has seen new restrictions and closures that have further reined in the claims he and his competitors had laid on the seas.

“The ocean got smaller and smaller and smaller,” said Moore, who serves as president of the Atlantic Offshore Lobstermen’s Association.

It’s about to shrink again — unless Moore and other fishers can convince the Supreme Court to get involved in a legal battle over a marine monument that will soon block crab and lobster operations in a Connecticut-sized chunk of the Atlantic Ocean where the two fisheries generate an estimated $15 million in annual revenue.

Read the full story at E&E News

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

MASSACHUSETTS: Fishing sectors, nonprofits seek federal pandemic aid

May 1, 2020 — Fishing stakeholders are urging Congress to expand federal assistance in the next round of funding to include fishing-related nonprofit associations and Northeast fishing sectors to help them keep their employees working during the pandemic.

In a letter to the respective chairmen of the U.S. House and Senate small business committees, stakeholders called on lawmakers to redress inequities toward many non-profits that have been precluded from sharing in benefits — specifically the Paycheck Protection Program — contained in the federal Coronavirus Aid, Relief, and Economic Security Act.

“Our primary principle concern is for the equitable treatment of the Northeast groundfish industry sectors organized pursuant to the Internal Revenue Code section 501(c)(5), and for those U.S. fishing industry trade associations organized pursuant to IRS section 501(c)(6),” the stakeholders stated in the letter.

Those associations include the Gloucester-based Northeast Seafood Coalition, the Massachusetts Lobstermen’s Association, the Fishing Partnership Support Services and other fishing nonprofit organizations.

Read the full story at the Gloucester Daily Times

MASSACHUSETTS: Unmoored and unsure, fishermen make do

April 15, 2020 — On Saturday, folks came to Menemsha to buy directly off the decks of local scallop boats. Business was brisk. Captain Sam Hopkins, aboard the Endurance, mongered to a steady queue of masked customers. Like the nearby Martha Rose, sea scallops off the Endurance sold for $15 per pound.

“It was really nice to have some local support and have people who bought scallops right off the boat,” Hopkins said.

Lobsterman Jason Gale has also turned to direct boat sales. From the deck of the Watch Out at Lake Street Landing he sold lobsters at $8 apiece, regardless of weight, on Saturday. Gale said he put a 10 lobster cap per customer and sold out.

“I’ll just keep going as long as people want them,” he said.

Gale said the wholesale price was roughly $5.50 to $6 per pound

That jibes with an estimate from Beth Casoni, executive director of the Massachusetts Lobstermen’s Association.

Read the full story at the MV Times

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