Lawsuit against national marine monument moving forward

Published on
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.

“We should find out something on 16 April,” he said. “We’re waiting on pins and needles until we find out what that is.”

According to Wood, the best-case scenario from the fishermen’s perspective would be the complete rescinding of the monument. While lifting the prohibition would help the fishermen temporarily, keeping the monument in place could allow for restrictions on commercial fishing to be put back in place at any time.

“It would be really easy for a future president to put the prohibitions back,” Wood said. “It’s relief in the short-term but it’s not a lot of long-term protection.”

Wood argues that the use of the Antiquities Act – which was established in 1906 – to create national monuments has become problematic from a process standpoint. A sitting president can use the act to establish a monument with little oversight. Normally a year of consultations and extensive public input are required in the establishment of a monument, but using the Antiquities Act can bypass the process.

“The process is broken, and it’s because the statute is a hundred years old and wasn’t meant to be dealing with situations like this,” he said. “There are literally no constraints on the political decisions the president can make, and that should trouble everyone.”

Conservation organizations argue that the Antiquities Act is an important part of the U.S.’s long-standing effort to preserve delicate and high-valued natural areas, and that conserving the Northeast Canyon and Seamounts monument is important from an environmental and legal perspective.

“These public waters belong to the American people, and we stand ready to defend them from encroachments on the centuries-old corals, endangered whales and other precious marine life this special ocean area encompasses,” said Brad Sewall, senior attorney and fisheries director of the Natural Resources Defense Council. “Attacking Antiquities Act protection of our marine national monuments is not only an attack on our natural heritage that we safeguard in order to pass on to future generations, but it is a blow to businesses and the whole coastal economy that relies on healthy oceans and sustainable fisheries.”

Peter Shelley, senior counsel for the Conservation Law Foundation, said his organization was supportive of the monument’s creation and continues to support leaving the commercial fishing ban in place.

“That area has been identified by more than 100 marine scientists as being of great scientific interest, and in need of protection from commercial activities that would damage resources or the wildlife that are in the area,” he said. “The ocean is under tremendous stress and great threat from climate change and commercial activities, and this monument is a very small area where the ocean can be kept in a natural condition so that scientists can understand better how it would work in the absence of commercial activity.”

For Shelley and other members of conservation organizations, any fishing at all would be too much.

“Contrary to maybe some people’s idea, fishing gear has significant impacts both on the ocean floor and in the water column. It is not a benign activity,” Shelley said. “The marine scientists have, we think, made a very strong case for why it’s justified.”

Members of the plaintiff organizations say they’re not opposed to the monument’s goal of preserving the area, they just wish the process had involved them from the beginning.

“The things that’s most relevant for us, is that above all, there was a better way to do this,” said Greg DiDomenico, executive director of the Garden State Seafood Association.

The industry as a whole, said DiDomenico, is not averse to conservation efforts and often undertakes efforts on their own.

“Our organization won an award from the World Conservation Society that’s housed in New York and the Monmouth University Coastal Institute for our work in creating a situation at the Mid-Atlantic Council about four years ago that led to the protection of 33,000 square miles of deep-water coral habitat,” he said. “My point is that the industry has something to offer, and we were able to set aside these areas through the Mid-Atlantic Council because they did it in an open process, a council process, everybody came to the table.”

He said the process to create the Northeast Canyon and Seamounts monument didn’t involve anyone from the industry.

“If there’s something that’s worth protecting, let’s talk about it,” DiDomenico said. “If we didn’t have a track record of doing the right thing, I’d say ‘Yeah, I get it.’ But we can stand up on what we did in the Mid-Atlantic.”

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