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Close Quarters: Ocean zoning pushes fisheries to the brink

September 23, 2021 — The following is an excerpt from an article published in National Fisherman by Dr. Roger Mann, professor of Marine Science at the College of William and Mary’s Virginia Institute of Marine Science. It is based on an article published by the Journal of Shellfish Research. That paper, “An Ecosystem is Not a Monument, and Other Challenges to Fishing in the 21st Century,” is based on a talk given by Dr. Mann at the annual meeting of the National Shellfisheries Association.

Managing fisheries is no longer simply about [the Magnuson Stevens Act’s] directives to “conserve and manage” a sustainable resource to serve the “social and economic needs of the States.” It is about managing fisheries in a changing landscape of competition for ocean resources, where the environment is changing faster than in living history, and species footprints are on the move.

Part of this changing landscape is the creation of large, no-take MPAs, like the Northeast Canyons and Seamounts Monument off the coast of Cape Cod. Designated by President Obama with the sweep of a pen using the Antiquities Act of 1906, the 4,913 square miles of the monument are now managed by multiple federal agencies under a bewildering patchwork of legislation, including Magnuson, the Endangered Species Act, the Marine Mammal Protection Act, the National Wildlife Refuge System Administration Act, the Refuge Recreation Act, Public Law 98-532, and Executive Order 6166. Then there is the National Marine Sanctuaries Act, through which the government can designate and protect marine areas of national significance.

This plethora of confusing legislation lacks uniform definitions. It is not clear on how — or even if — MPA designations are required to be revisited, even when species move. In addition, it does not state who has precedent over whom in the management hierarchy.

Even as questions remain over existing MPAs, activists are pushing for more with a “30×30” campaign to protect 30 percent of our nation’s land, inland waters and oceans as conservation areas by 2030. But what is “protected” in this context? Is a region protected only by excluding fishermen through a no-take MPA? Or does the Magnuson Act directive to “conserve and manage the fishery resources” and “exercise sound judgment in [their] stewardship” rise to the level of protection? If so, then is not the entire exclusive economic zone already protected?

MPAs are far from the only competition fishermen are facing in the ocean. Environmental advocacy, communications corridors, mining, national defense, and shipping all threaten fishermen’s access to ocean resources. Perhaps the biggest incursion of all is offshore wind development: the U.S. East Coast continental shelf already has 1.7 million acres of federal bottom under lease for offshore wind, with the Biden administration seemingly poised to expand such efforts along the Atlantic, Pacific and Gulf coasts. Offshore wind projects have a projected lifespan of 50 years, with turbine spacing restricting access for both commercial fishing vessels towing mobile gear and federal survey vessels. Stock assessment surveys will be compromised, resulting in reduced quotas for fishermen.

With so many competitors muscling their way into the ocean, who will be the winners and losers? Over what time frames will winners emerge? Where does preservation of the fishing industry sit in the pecking order? At the bottom?

The “space” for fisheries is shrinking. Commercial fishing won’t be the largest economic player as development of our oceans continues, but it is historically an important part of the economic and social structure of coastal communities. Fisheries are based on moving species distributions that do not function well within fixed boundaries, like those being zoned for MPAs and offshore wind.

Read the full article at National Fisherman

Biden may return seamount protections

June 21, 2021 — A couple years ago, the fight over the Northeast Canyons and Seamounts Marine National Monument was all the rage.

The monument, created in 2016 by President Barack Obama, preserved about 3.2 million acres southeast of Cape Ann and about 130 miles off Cape Cod from commercial activities of all manner — including fishing. Lobster and crab harvesters were being phased out over seven years. It protected three underwater canyons, four seamounts and the surrounding resources and ecosystems.

Obama’s presidential successor, Donald Trump, did his best to gut the monument’s designation and protections during his term.

Last year, Trump reopened the area to commercial fishing and removed most of the monument’s protections. The fishing industry was ecstatic. Environmentalists were aghast. The fish had no comment.

And now the battle is rejoined.

The Biden administration, according to several reports last week, is moving in the direction of reinstating full protections to the Canyon and Seamounts and two other land-based national monuments in Utah.

According to a report in the Washington Post, Interior Secretary Deb Haaland “recommended in a confidential report that President Biden restore full protection for the three national monuments” diminished by Trump.

Read the full story at the Gloucester Daily Times

MAINE: U.S. Interior Secretary to visit Acadia National Park on Friday

June 17, 2021 — U.S. Interior Secretary Deb Haaland will visit Maine on Friday to talk with state and tribal leaders about the Biden administration’s support for public lands.

Haaland will join Gov. Janet Mills and all four members of Maine’s Congressional delegation at Schoodic Point, a smaller and lesser-known part of Acadia National Park located on a peninsula in eastern Hancock County.

The visit kicks off with a special sunrise musical performance by renowned cellist Yo-Yo Ma and several Wabanaki musicians at 4:05 a.m. That event is by invitation only.

Haaland is the first Biden administration Cabinet member to visit Maine.

Haaland’s approach is likely to be radically different from that of Ryan Zinke or David Bernhardt, her predecessors under former President Donald Trump. The Washington Post reported this week that Haaland has recommended restoring protections to three national monuments that had been rolled back by Trump. They are Bears Ears and Grand Staircase-Escalante monuments in Utah, as well as the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts.

There had been some concern in 2017 that Maine’s Katahdin Woods and Waters National Monument also might be targeted for a reduction in size, but that never happened.

Read the full story at Central Maine

Haaland recommends reimposing fishing restrictions in the Northeast Canyons and Seamounts Marine National Monument

June 14, 2021 — Interior Secretary Deb Haaland has recommended in a confidential report that President Biden restore full protections to three national monuments diminished by President Donald Trump, including Utah’s Bears Ears, Grand Staircase-Escalante and a huge marine reserve off New England. The move, described by two people who spoke on the condition of anonymity because it was not yet public, would preserve about 5 million acres of federal land and water.

A broad coalition of conservationists, scientists and tribal activists has urged Biden to expand the Bears Ears and Grand Staircase-Escalante national monuments, which were established by Presidents Barack Obama and Bill Clinton, respectively, to their original boundaries. Trump cut Bears Ears by nearly 85 percent, and Grand Staircase-Escalante almost in half, in December 2017. A year ago, he permitted commercial fishing on the Northeast Canyons and Seamounts Marine National Monument, which removed most of the monument’s protections.

The White House is still deliberating, according to these people, but Biden favors the idea of overturning Trump’s actions. Employing the 1906 Antiquities Act, which gives the president broad latitude to protect threatened land and water, ranks as one of the easiest ways for Biden to conserve areas unilaterally.

All three areas have been embroiled in legal fights for years. Fishing operators challenged Obama’s 2016 decision to restrict commercial activities for 4,913 square miles off Cape Cod, Mass., which banned seabed mining and some fishing activities immediately while giving lobster and red crab operators seven years to stop fishing there. The region is home to many species of deep-sea coral, sharks, sea turtles, seabirds and deep-diving marine mammals, as well as massive underground canyons and seamounts that rise as high as 7,700 feet from the ocean floor.

“This area is very important to us,” Jim Budi, an official with the American Sword and Tuna Harvesters, said in an interview. He added that his members brought in about 25 percent of their annual catch from the region last summer after Trump lifted commercial fishing restrictions. They’ve sustainably caught swordfish by staying below limits set by federal regulators, he said.

Reviving the Obama-era limits, Budi said, “doesn’t do any conservation good, whatsoever.”

Still, Chief Justice John G. Roberts Jr. gave some conservatives hope three months ago when he sharply criticized the expanse of the Northeast Canyons and Seamounts Marine National Monument. Noting that the law was initially aimed at protecting Pueblo artifacts in the Southwest, he said the accompanying protected land must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

“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, as the Supreme Court declined to hear an appeal of a lower court decision on the monument. “The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery.”

Atlantic Red Crab Company owner Jon Williams, who has intervened in an ongoing lawsuit to defend Trump’s changes to the monument, said he wouldn’t hesitate to challenge the administration should it reimpose restrictions there.

“I’m already standing by,” he said. “And we’ve already been given a road map to the Supreme Court.”

Read the full story at The Washington Post

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

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