Saving Seafood

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

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

Supreme Court to Review Endangered Species FOIA Case

March 3, 2020 — The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.

The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.

Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.

“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.

Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.

Read the full story at Bloomberg Law

US Supreme Court ruling impacts marine insurance rates

June 26, 2019 — The United States Supreme Court on Monday, 24 June issued a decision likely to result in lower insurance premiums for U.S. fishing vessels.

The court ruled in favor of the defendant in the case Dutra v. Batterton. The plaintiff, a seaman employed by Dutra Group, who was injured when a hatch on a dredge vessel blew open and crushed his hand, sued Dutra seeking general and punitive damages, asserting that the vessel on which he was working was unseaworthy.

Lawyers representing Dutra Group argued that the claims for punitive damages are not eligible on the basis of unseaworthiness. Justices sided with Dutra, ruling that the plaintiff may not recover punitive damages on a claim of unseaworthiness, which reversed a previous ruling by the Ninth Circuit that the plaintiff was eligible for punitive damages.

Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts, as well as Justices Gorsuch, Kagan, Kavanaugh, and Thomas. Justice Ginsberg wrote the dissenting opinion and was joined by Justices Breyer and Sotomayor.

Isaak Hurst, a lawyer at the International Maritime Group, a law firm in Seattle, Washington, U.S.A., said that the court’s decision was a “big win for vessel owners because of the conflicting body of law that has developed around ‘unseaworthiness.’”

Read the full story at Seafood Source

‘This Ruling Gives Us Hope’: Supreme Court Sides With Tribe in Salmon Case

June 12, 2018 — There was a time when the murky waters of the Skagit River offered bountiful salmon harvests to the Swinomish Indians of Washington State. They could fill an entire boat with one cast of the net back then, and even on a slow day, they could count on hauling in dozens of fish.

But on a cloudy morning last month, the tribal community chairman, Brian Cladoosby, was having no luck. Drifting in his 21-foot Boston Whaler, he spotted his 84-year-old father, Michael, standing in yellow overalls in another boat, pulling an empty net from the water.

“Where’s the fish, Dad?” the son asked.

That has been the dominant question for years among the Swinomish and other Native Americans, who have seen their salmon harvests dip by about 75 percent over the past three decades.

But on Monday, they got reason to hope that their salmon harvests would tick back up.

The Supreme Court, in a 4-to-4 deadlock, let stand a lower court’s order that the state make billions of dollars worth of repairs to roads that had damaged the state’s salmon habitats and contributed to population loss.

It was a momentous outcome in a decades-long legal battle that drew attention because of its implications for Native American treaty rights and state sovereignty.

“This ruling gives us hope that the treaty we signed was not meaningless, and the state does have a duty to protect this most beautiful resource,” Mr. Cladoosby, 59, said on Monday.

Read the full story at the New York Times

Supreme Court says bearded seal still threatened, despite legal battle

January 23, 2018 — While the federal government was shut down on Monday, the federal courts were still making decisions.

The U.S Supreme Court decided to keep the bearded seal as threatened under the Endangered Species Act — rejecting an oil and gas industry challenge to the animal’s protection status.

The marine mammal was listed in 2012, due to melting sea ice. But the Alaska Oil and Gas Association or AOGA and the American Petroleum Institute thought the listing was premature.

Joshua Kindred, an environmental counselor at AOGA, said he was “disappointed” in the supreme court’s decision.

He said the National Marine Fisheries Service didn’t provide enough evidence to warrant a listing.

“They didn’t ever really show from a scientific point of view why the seasonal sea ice was so critical to their long-term health of the species,” he said.

Kindred said there also wasn’t sufficient guidance for a plan moving forward. He said excessive critical habitat designations can slow oil and gas development.

The Center for Biological Diversity has fought to keep the bearded seal’s protection status.

Read the full story at KTOO Public Media

 

David Goethel: NOAA Fisheries rule should alarm taxpayers

October 16, 2017 — NOAA Fisheries has discovered a devious way to increase their budget without the checks and balances guaranteed by our forefathers, and the courts have let it stand.

I have been involved in a lawsuit with NOAA Fisheries over who pays for at-sea monitors (ASM) for the last three years. These are basically our own personal state police men who ride along on the boat and watch and record everything fishermen do at sea. Fishermen have been forced to sign contracts with for-profit third-party companies that provide this service for $710 per day. Recently, the Supreme Court refused to hear our case, effectively ending our pursuit of justice. Readers should be concerned, not only because this job-killing regulation effects their ability to obtain local seafood, but also because the loss leaves in place a precedent that will allow regulatory agencies to tax citizens by passing regulations while bypassing Congress.

Readers should forget most of what they learned in civics class and anything they see on courtroom television. You do have equal access to justice but it comes at a very high price. Taking this case through the legal system probably cost in excess of half a million dollars. Regulatory agencies make shrewd calculations about who can afford to sue over an action. They assume large corporations and environmental non-government organizations (NGOs) will sue and regulations are tailored accordingly. Absent a group like Cause of Action (COA) providing pro-bono counsel to someone like me, I and by extension ordinary citizens, are effectively blocked from seeking justice by the cost.

Read the full op-ed at Foster’s Daily Democrat