Saving Seafood

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

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

Biden plans review of national monuments, including Northeast Canyons and Seamounts

January 22, 2021 — Recently inaugurated U.S. President Joe Biden announced – just hours after he was sworn in – that he plans to perform a review of the Trump administration’s actions regarding a number of national monuments, including the Northeast Canyons and Seamounts monument.

The Northeast Canyons and Seamounts National Monument is the first national monument in the Atlantic Ocean, and one of just five marine monuments in the U.S. Located off the east coast, the monument was created in 2016 by U.S. President Barack Obama and encompasses 4,913 square miles of ocean.

Read the full story at Seafood Source

Saving Seafood Statement on President Biden’s National Monuments Order

January 22, 2021 — Saving Seafood members believe that the lack of benefit from a prohibition on commercial fishing in the Northeast Canyons and Seamounts Monument, the harm to domestic sustainable seafood production and coastal communities, the lack of scientific evidence demonstrating any harm from decades of commercial fishing in the region, and the inherent unfairness of the Obama administration’s decision to ban commercial harvesting while permitting recreational fishing have already been well-documented in the press and reviewed by appropriate government agencies.

However, we appreciate that President Biden has requested a review of the Trump administration’s actions on the monument rather than issuing an immediate reversal. Our members look forward to discussing these issues with Rep. Deb Haaland as soon as she is confirmed as Interior Secretary, just as we met with Secretary Ryan Zinke and Secretary David Bernhardt.

Contrary to the dramatic tone of some press releases and online campaigns from conservation groups, the Trump administration action last June did nothing more than create parity between recreational and commercial fishing in the monument, allowing both recreational and commercial fishermen to harvest sustainably in accordance with the Magnuson-Stevens Act. The Magnuson-Stevens Act has been hailed by U.S. conservation groups and by international bodies as one of the most successful laws in the world for managing fisheries responsibly and sustainably.

Sustainable fishing has taken place in the Northeast Canyons and Seamounts area for decades. Conservation groups and proponents of the monument have described the area where fishing has taken place as “pristine.” There is no evidence that commercial fishing has ever damaged these canyons and seamounts or the corals and other marine life that exist there.

Our members have worked diligently with officials and members of Congress on both sides of the aisle since secret proposals for an Atlantic Marine Monument were revealed in emails between conservation groups and former Obama administration officials through a public records request in 2015.

The region now encompassed by the Northeast Canyons and Seamounts Monument is important to the offshore lobster, red crab, and swordfish and tuna fisheries. And displacement of the offshore lobster fishery from their historic location would likely harm the highly successful and sustainable Atlantic scallop industry. We appreciated that the Obama administration recognized that an immediate closure would have serious negative consequences to the red crab and offshore lobster fisheries, and were grateful for the seven-year extension which allowed those fisheries to continue to operate. Unfortunately, no such extension was granted to commercial swordfish and tuna fishermen, who were harmed from the time the closure went into effect until last summer when parity and fairness were restored.

President Biden has vowed to make science a central theme of his administration. In an online briefing introducing his team of top five science advisors before the inauguration, he said, “As president, I’ll pay great attention” to science and scientists.

As long as the review ordered by President Biden is conducted fairly and honestly, and in accordance with science and data, we believe the results should be to continue to allow sustainable fishing, both commercial and recreational, under the Magnuson-Stevens Act.

President Biden’s flurry of actions to protect the environment reignites a controversy about the Atlantic’s only marine monument

January 22, 2021 — Last June, as part of a concerted campaign to dismantle the environmental policies of the Obama administration, Donald Trump met with fishermen in Maine and signed a proclamation that allowed commercial fishing in nearly 5,000 square miles of federally protected waters southeast of Cape Cod.

But elections have consequences, and on Wednesday President Joe Biden signed an executive order that could overturn Trump’s decision and restore the first marine national monument in the Atlantic Ocean to its former status, part of a flurry of executive actions Biden took on his first day in office to reverse many of the Trump administration’s environmental rollbacks.

Environmental advocates called the first steps promising, a welcome change from the policies of the past four years.

In response to Biden’s order, representatives of fishing groups urged the new administration to consult them before overturning Trump’s policies.

“The hope of the fishing industry is that if the Biden administration is endeavoring to unite the country, then the Biden administration will actively reach out to fishing communities and not only discuss the marine monument with them but listen to the fishing communities’ concerns and act upon those concerns,” said Andrew Minkiewicz, an attorney at the Fisheries Survival Fund in Washington, D.C.

He and others urged the Biden administration to respect the traditional fishery management process, which allows for councils composed of fishermen, environmental advocates, and regulators to determine where and how much fishing can occur.

“I believe, as long as this is reviewed fairly, in terms of the science and law, there’s no reason that fishing shouldn’t be allowed there,” said Bob Vanasse, executive director of Saving Seafood, a Washington-based group that represents commercial fishermen. “It’s sustainable. But if it’s a political decision and about Obama’s legacy, then it’s going to be a problem.”

Read the full story at The Boston Globe

President Biden to review Trump’s changes to national monuments

January 20, 2021 — Trump’s decision to downsize the Bears Ears National Monument by 85% on lands considered sacred to Native Americans in southeastern Utah and to shrink Grand Staircase-Escalante National Monument by nearly half earned him applause from Utah’s Republican leaders, who considered the monuments an example of federal government overreach.

Environmental, tribal, paleontological and outdoor recreation organizations have pending lawsuits to restore the full sizes of the monuments, arguing presidents don’t have the legal authority to undo or change monuments created by predecessors.

Pat Gonzales-Rogers, executive director of the Bears Ears Inter-Tribal Coalition, said the group has told the Biden transition team the monument should first restored to the size Obama created and later to a larger size tribes originally requested.

The lands are sacred to tribes in the coalition: Hopi Tribe, Navajo Nation, Ute Mountain Ute Tribe, Pueblo of Zuni, and Ute Indian Tribe, he said. The area includes thousands of archaeological sites on red rock lands including cliff dwellings. The Bears Ears buttes that overlook a grassy valley are particularly sacred.

“The Bears Ears is a church and the place of worship for many of our tribes,” Gonzales-Rogers said. “It should be viewed with the same type of gravitas and platform that you would view the Cathedral of Notre Dame.”

The Northeast Canyons and Seamounts conservation area comprises about 5,000 square miles east of New England. It contains vulnerable species of marine life such as right whales and fragile deep sea corals. The monument was the first national marine monument in the Atlantic Ocean.

Read the full White House release here

Read the full story from the Associated Press at The Chicago Tribune

Biden to rejoin Paris agreement, revoke Keystone XL permit

January 20, 2021 — President-elect Joe Biden on Wednesday will rejoin the Paris agreement, revoke a permit for the Keystone XL pipeline and take a slew of other environmental actions after he’s sworn in as president.

Biden plans to sign two executive orders among the 15 he will issue on his first day in office that will have ramifications for the environment as well as numerous rollbacks put in place by the Trump administration.

While one will rejoin the global climate agreement, another directs agencies across government to reconsider a number of actions taken under the previous administration, sending along a nine-page hit list of Trump era actions likely to be reversed under the Biden administration.

iden has pledged to rejoin the Paris climate accord on his first day in office, part of his commitment to get the U.S. on a path to reach net-zero emissions by 2050.

And in his second order he aims to halt a number of oil and gas activities, revoking the Keystone XL pipeline set to cross the border with Canada and placing a temporary moratorium on oil and gas leasing activities at the Arctic National Wildlife Refuge.

The action stops short of Biden’s ultimate goal of halting all new fossil fuel leasing on federal lands and in federal waters, though it’s an action he has pledged his administration will take.

The order also directs agencies to review boundaries for the Grand Staircase-Escalante, Bears Ears and Northeast Canyons and Seamounts Marine National Monument.

Trump shrunk the Grand Staircase-Escalante and Bears Ears national monuments over objections from environmentalists as well as Native Americans, who argued the lands were sacred to their tribes.

In the case of the Northeast Canyons and Seamounts Marine National Monument, Trump lifted protection of the area in a bid to open it to more commercial fishing.

The Wednesday action will also direct agencies to review standards for vehicles, appliances and buildings.

Read the full story at The Hill

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