Northeast Canyons and Seamounts Marine National Monument Archives

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

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

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

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

Supreme Court denies fishing industry challenge to marine monument, while opening the door to future challenges

March 23, 2021 — In a ruling that could be a Pyrrhic victory for conservation groups in New England, the Supreme Court on Monday rejected a lawsuit brought by Massachusetts fishermen that challenged president Barack Obama’s creation of a vast marine monument in the Atlantic Ocean, the first of its kind off the East Coast.

Yet Chief Justice John Roberts in a concurring opinion raised significant concerns about the size of the Northeast Canyons and Seamounts Marine National Monument, a controversial, Connecticut-sized sanctuary that lies about 130 miles southeast of Provincetown.

Indeed, his sharply worded opinion provided a potential roadmap for a legal challenge against the monument and seemed to signal that the court would be willing to consider truncating or invalidating the 5,000 square miles of federally protected waters.

Roberts criticized Obama’s decision to use the 1906 Antiquities Act to designate the monument, which he described as “part of a trend of ever-expanding antiquities” that have become national monuments.

“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.

Read the full story at The Boston Globe

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.

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

East Coast Fishermen Call for Fair Monument Policy From Biden Administration

March 19, 2021 — Over a dozen representatives of the New England and Mid-Atlantic seafood industry met with members of the Department of Interior and NOAA Fisheries officials, including Sam Rauch, Deputy Assistant Administrator for Regulatory Programs last Friday to hear their case for a fair and science-based marine monument policy.

East Coast industry members specifically asked to allow commercial fishing in areas within the monument as stated in an Executive Order from last June. That order, issued by the Trump Administration, was an amendement to the Obama Executive Order that created the monument on the basis of the Antiquities Act. President Obama’s proclamation prohibited commercial fishing, with a phase-out period for American lobster and red crab fisheries, within the monument’s boundaries.

President Biden asked the Secretary of the Interior to “… conduct a review of the monument boundaries and conditions that were established by … Proclamation 10049 of June 5, 2020 (Modifying the Northeast Canyons and Seamounts Marine National Monument), to determine whether restoration of the monument boundaries and conditions that existed as of January 20, 2017, would be appropriate.”

Industry members raised concerns about creating marine monuments without input from the regional councils, without a basis of the best scientific advice available, and when the final economic and social impacts on the area’s communities would be negative.

They noted that allowing fishing in the Atlantic monument area is consistent with the Biden Administration’s goals of following the best available science, as well as its commitment to economic and environmental justice.

Read the full story at Seafood News

Outgoing NOAA leaders see ‘solid progress that helps commercial and recreational fishing industries’

January 28, 2021 — As our tenure in the National Oceanic and Atmospheric Administration (NOAA) ends, we want to share the progress our agency team has accomplished. Working with the National Marine Fisheries Service leadership, we sought to increase fishing opportunities, reduce unnecessary burdens, expand market access, and continue to improve the status of fish stocks. As NOAA transitions to a new political leadership team, it is important to build upon the achievements of these past four years, and continue to support the commercial and recreational fishing sectors:

Advance fisheries conservation.

NOAA continued to make significant progress working with fishermen to improve the status of U.S. fish stocks. Two additional fish stocks were rebuilt last year, making a total of 47 fish stocks rebuilt since 2000. The overfishing list dropped to 22 stocks, setting an all-time low. Ninety-three percent of the stocks managed by NOAA are not subject to overfishing and 81 percent are not overfished.

Cooperate with the regional fishery management councils to reduce regulatory burden.

A total of 62 deregulatory actions were finalized between fiscal years 2017 and 2020, saving fishermen over $50 million per year. More importantly, there are approximately 30 deregulatory actions currently in the pipeline within NOAA fisheries. Further, under section 4 of Executive Order 13921, Promoting American Seafood Competitiveness and Economic Growth, NOAA fisheries is required to review and add new deregulatory actions to its agenda that are recommended by the councils, and report annually for the next 3 years on their status.

Read the full story at National Fisherman