Saving Seafood

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

JONATHAN WOOD: Here’s why Congress, not the president, should lead on environmental protection

March 26, 2019 — Last month, Congress approved a massive, bipartisan federal lands bill, designating five new national monuments, 1.3 million acres of wilderness, 620 rivers as wild and scenic, and permanently reauthorizing the Land and Water Conservation Fund. This legislative undertaking “touches every state, features the input of a wide coalition of our colleagues, and has earned the support of a broad, diverse coalition of many advocates for public lands, economic development, and conservation,” said Senate Majority Leader Mitch McConnell (R-Ky.). That consensus is impressive in these partisan times, and it suggests these protections will endure.

It is unimaginable that these designations by Congress will be as controversial in two decades as, say, Grand Staircase-Escalante National Monument remains today, 20 years after President Clinton unilaterally proclaimed the monument under the Antiquities Act. The long-simmering political dispute over Clinton’s actions ultimately led to President Trump substantially reducing the size of the monument last year. That, too, is the source of significant conflict.

These two cases reflect conflicting visions of how environmental decisions should be made. When Congress decides, the outcome likely will reflect consensus and compromise. Everyone may not get exactly what they want, but no one completely loses, either. The compromise also is more likely to reflect careful deliberation (the recent public lands bill was in the works for four years) and open debate.

When the executive alone decides, however, the result is more likely to be a one-sided outcome, made with limited public process and without considering opposing views. That’s what happened with the Grand Staircase, which was denounced by former Rep. Bill Orton (D-Utah) as “going around Congress and involving absolutely no one from the state of Utah in the process. There was a major screw-up in the way it was done and how it was drafted.” Utah’s governor and congressional delegation opposed the monument, which is entirely contained within the state. When Clinton announced his decision, Utah officials were excluded in favor of celebrities and environmental activists, including Robert Redford.

Read the full story at The Hill

Lawsuit against national marine monument moving forward

March 29, 2018 — A lawsuit against a national marine monument, started nearly a year ago, is moving forward once more after a U.S. District Court Judge lifted a stay placed on the case.

The Northeast Canyons and Seamounts National Marine Monument, established via executive order using the Antiquities Act by President Barack Obama, set aside 4,913 square miles (12,724 square kilometers) of ocean 130 miles (209 kilometers) off the coast of New England. Soon after the monument was established, several fishing groups sued the federal government arguing that the move exceeded the President’s authority.

The motivation behind the lawsuit stems from the monument’s blanket ban on all commercial fishing. While a grandfather period of seven years was given to the lobster and deep-sea red crab fisheries, all other fishing operations have been banned from the area.

Now, thanks to U.S. District Court Judge James E. Boasberg’s lift of a stay granted on 12 May 2017, the lawsuit will begin to move forward once more. The lawsuit argues that Obama did not have the authority to establish the monument based on the Antiquities Act, given that the ocean is not “land owned or controlled by the federal government.”

Secretary of the Department of the Interior Ryan Zinke recommended, in a review released in December 2017, that the proclamation of the monument be amended to allow the local fishery management council to make decisions as authorized by the Magnuson-Stevens Act.

“There is no explanation in the proclamation as to why the objects are threatened by well-regulated commercial fishing,” wrote Zinke in his recommendations. “The proclamation should be amended, through the use of appropriate authority.”

Since that recommendation, however, the Trump administration has failed to act.

“Fishermen have waited a year for the government to respond to their lawsuit challenging a clear case of Antiquities Act abuse – locking fishermen out of an area of ocean as large as Connecticut,” said Jonathan Wood, an attorney with the Pacific Legal Foundation who is representing the plaintiffs. “The court’s decision to lift the stay will now require President Trump to decide whether to act on the secretary’s recommendation or defend President Obama’s unlawful monument decision in court.”

So far, said Wood, they haven’t heard whether or not the administration plans to defend the monument in court.

Read the full story at Seafood Source

 

Fate of First Marine National Monument May Be Decided in Court

August 28, 2017 — The future of the first Atlantic marine national monument will likely be decided in court. A lawsuit that challenges the designation of the Northeast Canyons and Seamounts Marine National Monument remains on hold, as fishermen’s groups wait to hear specific recommendations from Interior Secretary Ryan Zinke.

Zinke announced this week he would not recommend eliminating any national monuments, but he would propose some changes. Supporters of the marine monument off of Cape Cod say if any changes go through, they’ll mount a legal challenge.

The creation of the 5,000 square-mile monument on the edge of Georges Bank this past September closed the area to commercial fishing. Soon after, five fishing organizations across New England filed a lawsuit. The attorney who represents them, Jonathan Wood of the Pacific Legal Foundation, says the suit was put on hold while the monuments were under review.

“It remains on hold, and I suppose until we know what the president is going to do, it will stay on hold,” Wood says.

The lawsuit challenges the authority that President Obama used when he created the monument. Wood says federal law only allows presidents to designate monuments on land owned or controlled by the government.

“And the ocean, 100 miles from the United States, is obviously not land,” says Wood. “But it’s also not owned or controlled by the federal government.”

Read and listen to the full story at Maine Public Radio