Is the Ocean ‘Land Owned or Controlled’ By Feds? Antiquities Act Lawsuit Aims to Find Out

by Kathy Hoekstra
March 28, 2017
in Homepage, News

Despite a lifetime of fishing off the New England coast, Eric Reid was like a fish out of water when President Barack Obama grabbed a piece of his livelihood.

“I’m just a fish guy but I learned a lot about politics in a big hurry,” said Reid, general manager of Seafreeze Shoreside Inc., a seafood processing facility in Rhode Island.

He is referring to Obama’s September 2016 designation of nearly 5,000 square miles of ocean as the Northeast Canyons and Seamounts National Monument, using his unilateral authority under the Antiquities Act of 1906.

‘Losing opportunity’

The area 130 miles off the coast of Cape Cod is the first national monument in the Atlantic Ocean. It’s also rife with fish that have fed New Englanders — and the New England economy — for generations.

But the monument designation makes commercial fishing off limits.

WATER GRAB: A national monument designation in the final months of the Obama administration puts 5,000 square miles of fish-rich ocean off limits to a major New England industry. PHOTO CREDIT: Pacific Legal Foundation

“We’re losing opportunity as we speak,” Reid told Watchdog.org. “It could easily be millions of dollars just this winter.”

Reid is part of a coalition of New England fishing organizations suing the federal government over the designation. The Pacific Legal Foundation is representing the coalition in Massachusetts Lobstermen’s Association v. Ross. PLF attorney Jonathan Wood says the economic impact is magnified when considering the shoreside businesses that have grown up around the commercial fishing industry.

“It’s not just the fishermen. It’s all the bait dealers, the mechanics and the marinas and all the businesses that only exist because there’s a commercial fishing industry,” he told Watchdog.org.

The PLF complaint argues that the president was out of line because the ocean is beyond the reach of the Antiquities Act.

“The statute only authorizes monuments on ‘land owned or controlled by the federal government,’ said Wood. “And the ocean, particularly this far out, is not land and it’s not owned or controlled by the federal government.”

President Theodore Roosevelt signed the Antiquities Act into law in 1906 to protect antiquities and artifacts from looting and prevent the destruction of Native American sites in the Southwest. Devil’s Tower in Wyoming was the first national monument created under the law. Others include familiar sites such as Fort McHenry and the Statue of Liberty.

In recent decades, the law has been used mostly to bring land, rather than historic sites, under federal control.

In 2006, President George W. Bush created the 139,797 square miles Papahānaumokuākea Marine National Monument in the Pacific Ocean. According to the National Ocean Service, it was created “to protect an exceptional array of natural and cultural resources.”

Obama more than quadrupled the size of Papahānaumokuākea in August, to 582,578 square miles — twice the size of Texas — saying in his proclamation the protection provides opportunities “including understanding the impacts of climate change on these deep-sea communities.”

All told, Obama’s 34 new or expanded monument designations covered 533 million acres of federal land and water, the most of any president.

And as with the New England fishermen, monument status limits what state and local people can do on these public lands.

Not a coral in sight

Reid says the monument in the Atlantic Ocean was purportedly to protect coral, but in parts of the protected area, there’s not a coral in sight. He said,

“Once the designation was given to us a few days before the actual written proclamation itself, it was pretty evident to us that there was quite a bit of political pressure put in by environmental organizations to get a pretty large area closed off that made no sense if in fact corals were the target.”

Wood calls it an attempt by the president to try to establish his legacy with environmental groups who wanted to stake a claim in the Atlantic Ocean, especially because the federal Council on Environmental Quality ignored work already underway by the New England Fisheries Management Council to protect coral while continuing to allow commercial fishing.

The council is one of eight established in 1976 under the Magnuson-Stevens Fishery Conservation and Management Act, which governs marine fishery management in federal waters up to 200 nautical miles from shore. The councils are charged with fostering long-term biological and economic sustainability, and include scientists, environmentalists, fishermen and government representatives.

Reid serves on the New England council. He says his group told the president’s Council on Environmental Quality they could do a better job than a marine monument could of managing the area.

“It would be done in a much more informed manner,” he said. “There’s a lot of analysis that has to be done, National Environmental Policy Act analysis and economic analysis on what would happen to impact the industry.”

The Natural Resources Defense Council was a driving force behind the monument, a National Geographic blogger wrote in September. According to the post,

“The NRDC’s push for the monument began in 2001 and ran up until … the president announced the establishment of the protected area. … NRDC created online petitions, geospatial analyses, technical research, polling events, media outreach, meetings and a letter-writing campaign.”

A June 30, 2016 letter, for example, addressed to Obama and copied to a number of lawmakers, urged the monument’s creation. The NRDC wrote:

“While the area is largely untouched and wild today, it is highly vulnerable to disturbance and should be protected now from the push to fish, drill, and mine in ever deeper and more remote places. As climate change and ocean acidification continue to affect ocean life, it also becomes more and more urgent to establish blue parks in important and relatively pristine ocean habitats such as this one.”

Neither the NRDC nor the Council on Environmental Quality responded to Watchdog.org requests for comment on the lawsuit.

—

In the meantime, Wood says while there’s essentially no limit to what the president might do under the Antiquities Act, there is irony in what the statute cannot do, such as prevent navigation in the area or laying of cables and pipelines through it.

MONUMENTAL OVERREACH: Lawsuit, lawmakers step up efforts to fight Obama’s Antiquities Act abuse and save fishing jobs.
PHOTO CREDIT: Pacific Legal Foundation

“So they are essentially forbidding fishing that has no impact on the coral while doing nothing to prevent oil tankers from going through the area or other nations from laying telecommunications cables that actually destroys the coral,” he said.

In addition to the lawsuit, some legislative relief may be on the way for the fishermen.

Utah GOP Sen. Mike Lee vowed to repeal the Antiquities Act, following the late December creation of a 1.35 million acre Bears Ears National Monument in the southern part of his state. That would end future unilateral monument proclamations by presidents; but it would take additional congressional action to abolish existing designations.

Another Utah Republican, Rep. Rob Bishop, chairman of the House Natural Resources Committee, took a fact-finding trip to the New England area where he spent some time with Reid.

“We spoke for a very nice, long time,” Reid said. “Rep. Bishop is extremely well-versed in the Antiquities Act.”

Bishop, along with Delegate Aumua Amata Coleman Radewagen (R-American Samoa), sent a letter to President Donald Trump on March 7, urging him to remove all marine monument fishing prohibitions and allow fisheries to be managed through the existing regional fishery management councils.

The letter read,

“Using the Antiquities Act to close U.S. waters to domestic fisheries is a clear example of federal overreach and regulatory duplication and obstructs well managed, sustainable U.S. fishing industries in favor of their foreign counterparts. You alone can act quickly to reverse this travesty.”

And on March 15, the Natural Resources Subcommittee on Water, Power and Oceans held a hearing to examine the creation and management of marine monuments.

The hearing included written testimony from Jon Mitchell, the Democratic mayor of New Bedford, Mass. Mitchell said the Port of New Bedford generates $9 billion in direct and indirect economic output each year, and encouraged Congress to return the New England Fisheries Council to its “rightful place as the critical arbiters of fisheries management matters.”

Unless the president or Congress acts, Massachusetts Lobstermen’s Association v. Ross will proceed.

“President Obama was the biggest abuser of the Antiquities Act in presidential history,” said Wood. “This marine monument is beyond the nation’s territory. The Antiquities Act simply doesn’t fit this far out.”

Article originally published at Watchdog.org.

Photo by Moyan_Brenn

Comments

Yes, the oceans are included in areas that can become monuments. Monuments can be created out of areas that lie offshore, so long as they lie within the US Exclusive Economic Zone, which extends 200 miles from shore. The Supreme Court upheld a marine expansion of California’s Channel Islands National Monument in the 1970s, ruling that the government retained an interest in the area , despite the waters in question becoming state-owned after the expansion was put in place. And Cameron Vs Us , which held that large monuments are permitted under the Antiquities Act, remains binding precedent nearly 100 years after it was decided in 1920. The Northeastern Canyons monument lies within the Atlantic EEZ, stretching out from 150 miles out to the 200 mile boundary. Those waters are controlled by the federal government, and are considered part of the United States. areas outside of those zones are considered international waters. For instance, the deepest part of the Marianas Trench, Challenger Deep, lies within the borders of Micronesia, and thus is not included within the Marianas Trench National monument. The part of the trench that lies within US waters is included in the monument. These offshore monuments were set aside for scientific reasons, to protect the wildlife that call those areas home.

Historically, there are two kinds of monuments. Historic monuments, like the Statue of Liberty, Pullman or Reconstruction Era, are small in area, they preserve buildings or objects important to US history. Scientific monuments, like Grand Canyon, Papahanamokuokea, or Mojave Trails, are large in size, in order to preserve natural formations, ecosystems, and wildlife habitat. The courts have upheld every monument ever challenged in court, regardless of size or location. There have been monuments upheld that are far larger than Northeastern Canyons. Most of Carters Alaska monuments covered at least 2 million acres, and 2 covered over 10M acres. They have consistently deferred to the president, saying their review of monument proclamations is very limited. Further, by granting the president discretion to create a monument, Congress left the size of the monument up to him. each monument is unique, some only require small areas, others need huge areas. The courts have further said they will not second-guess the president, so long as he believes a monument contains things of historic and/or scientific importance, they will take him at his word. Wyoming, Alaska and Utah have all challenged monuments, on various grounds. Not only did they lose the challenges, but the courts held they had no standing to challenge in the first place. While congress has imposed limits on monuments in Wyoming and Alaska, those limits have never been tested in court, and given Cameron remains precedent, it is unlikely those limits would survive court scrutiny. Large monuments in Alaska and Wyoming would be upheld, rendering the limits a dead letter

1 Discussion on “Is the Ocean ‘Land Owned or Controlled’ By Feds? Antiquities Act Lawsuit Aims to Find Out”

Nick says:

March 31, 2017 at 12:06 pm

Yes, the oceans are included in areas that can become monuments. Monuments can be created out of areas that lie offshore, so long as they lie within the US Exclusive Economic Zone, which extends 200 miles from shore. The Supreme Court upheld a marine expansion of California’s Channel Islands National Monument in the 1970s, ruling that the government retained an interest in the area , despite the waters in question becoming state-owned after the expansion was put in place. And Cameron Vs Us , which held that large monuments are permitted under the Antiquities Act, remains binding precedent nearly 100 years after it was decided in 1920. The Northeastern Canyons monument lies within the Atlantic EEZ, stretching out from 150 miles out to the 200 mile boundary. Those waters are controlled by the federal government, and are considered part of the United States. areas outside of those zones are considered international waters. For instance, the deepest part of the Marianas Trench, Challenger Deep, lies within the borders of Micronesia, and thus is not included within the Marianas Trench National monument. The part of the trench that lies within US waters is included in the monument. These offshore monuments were set aside for scientific reasons, to protect the wildlife that call those areas home.

Historically, there are two kinds of monuments. Historic monuments, like the Statue of Liberty, Pullman or Reconstruction Era, are small in area, they preserve buildings or objects important to US history. Scientific monuments, like Grand Canyon, Papahanamokuokea, or Mojave Trails, are large in size, in order to preserve natural formations, ecosystems, and wildlife habitat. The courts have upheld every monument ever challenged in court, regardless of size or location. There have been monuments upheld that are far larger than Northeastern Canyons. Most of Carters Alaska monuments covered at least 2 million acres, and 2 covered over 10M acres. They have consistently deferred to the president, saying their review of monument proclamations is very limited. Further, by granting the president discretion to create a monument, Congress left the size of the monument up to him. each monument is unique, some only require small areas, others need huge areas. The courts have further said they will not second-guess the president, so long as he believes a monument contains things of historic and/or scientific importance, they will take him at his word. Wyoming, Alaska and Utah have all challenged monuments, on various grounds. Not only did they lose the challenges, but the courts held they had no standing to challenge in the first place. While congress has imposed limits on monuments in Wyoming and Alaska, those limits have never been tested in court, and given Cameron remains precedent, it is unlikely those limits would survive court scrutiny. Large monuments in Alaska and Wyoming would be upheld, rendering the limits a dead letter

Is the Ocean ‘Land Owned or Controlled’ By Feds? Antiquities Act Lawsuit Aims to Find Out

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