Lobstermen’s Claim Submerged by the Antiquities Act
Mass. Lobstermen's Ass'n v. Ross, 945 F.3d 535 (D.C. Cir. 2019).
By: Spring Gaines
The issue presented here to the D.C. Circuit Court of Appeals is the extent of Executive Authority in the Exclusive Economic Zone.[1]
On September 15, 2016, President Obama, by proclamation,[2] established the Northeast Canyons and Seamounts Marine National Monument (“Monument”) under the Antiquities Act.[3] This area, the first major marine national monument established off the U.S. coast in Atlantic Ocean, is approximately 5,000 square miles and is located 130 miles southeast of Cape Cod. It contains geological and ecological features that creates “diverse and vibrant ecosystems" which is inhabited by an “assort[ment of] marine flora and fauna, including rare species of deep-sea corals.”[4] While this area is unique as a home for marine wildlife as well as underwater canyons and extinct volcanoes, it is also located in the Exclusive Economic Zone (“EEZ”), where the U.S. exercises sovereign rights.[5] The issue at hand is whether the President had the statutory authority to establish the Monument. Several commercial-fishing associations (“Associations”) spoke out in the contrary, making this claim the first direct challenge to the President’s ability to create an offshore marine monument under the Antiquities Act. The district court dismissed the complaint, and the associations brought this appeal to the D.C. Circuit.
The associations argued that the President exceeded his authority for four reasons: (1) the ocean does not constitute ‘land’ under the Antiquities Act, (2) there is a lack of compatibility with the Sanctuaries Act, (3) the federal government does not control the EEZ, and (4) the protected area is not the “smallest area compatible.”[6]
The D.C. Circuit court looked at each of these claims in turn. For the first claim, whether the ocean constituted ‘land’ under the Antiquities Act, the court relied on Supreme Court precedent, particularly that of Alaska v. United States[7], which concerned Glacier Bay National Monument. The Supreme Court held in that case, as it has done consistently, that “the Antiquities Act empowers the President to reserve submerged lands,”[8] which also includes the waters associated with such lands. The D.C. Circuit followed this precedent.
For the second claim, the associations suggested that the process used by the Sanctuaries Act to protect marine environments precludes the President from using the Antiquities Act for such protective measures. In essence, use of the Antiquities Act in this manner makes the Sanctuaries Act "entirely redundant."[9] The judges of the court disagreed with this supposition. Application of the Antiquities Act to oceans does not nullify the Sanctuaries Act because the reasoning and process of designation for both are completely different. The court stated that overlapping protections do not defy the intent or scope of their dual purposes. Thus, ocean-based monuments designated under the Antiquities Act are compatible with the Sanctuaries Act.
The circuit court determined that the third claim, that the federal government does not control the EEZ, was a miscalculation by the associations based upon a misunderstanding of statute. The associations involved in this matter read the statute to where ‘control’ and ‘own’ are analogous, but this court held that these are distinct terms. In fact, the federal government may ‘control’ land even if it lacks ownership. When it comes to the EEZ, the federal government has unrivaled control over this area under both international and domestic law; and therefore, the government has the authority to “protect[] the marine environment”[10] in this part of the ocean.
Finally, the associations argued that the Monument was not the "smallest area compatible"[11] with management because an ecosystem is not an ‘object.’ The court held that this argument failed under its own circuit’s precedence. In Tulare County v. Bush, the D.C. Circuit held that that ecosystems are indeed protectable ‘objects’ under the Antiquities Act.
Thus, the circuit court affirmed the district court’s decision to dismiss with one minor alteration. The district court dismissed the claim pursuant to Fed. R. Civ. P. 12(b)(1). This was inappropriate. When plaintiffs fail to make claims challenging national monument designations, those should be Rule 12(b)(6) dismissals.
Author’s Note: Although this decision upheld the designation, on June 5, 2020, President Trump issued a proclamation that could allow commercial fishing in this area or revoke, shrink, or otherwise change its protective status. Environmental groups have submitted legal briefs to protect this and other monuments such as Bears Ears and Grand Staircase-Escalante from such action.[12]
[1] As formally adopted in 1982 by the UN Convention on the Law of the Sea, the Exclusive Economic Zone starts at the seaward edge of a state’s territorial sea and extends outward 200 nautical miles (370 km) from the baseline.
[2] Proclamation No. 9496, 3 C.F.R. 262, 262 (2017).
[3] 54 U.S.C. §§ 320301 et seq. (2018).
[4] Id. at 263.
[5] Mass. Lobstermen's Ass'n v. Ross, 945 F.3d 535, 538 (D.C. Cir. 2019).
[6] Massachusetts Lobstermen's Association v. Ross, 349 F. Supp. 3d 48, 51, 58 (D.D.C. 2018).
[7] 545 U.S. 75 (2005).
[8] Alaska v. United States, 545 U.S. 75, 103 (2005).
[9] Mass. Lobstermen's Ass'n,, 945 F.3d at 541.
[10] Id. at 543.
[11] 54 U.S.C. § 320301(b) (2018).
[12] Earthjustice, The Northeast Canyons and Seamounts Marine National Monument (2020), https://earthjustice.org/features/explainer-marine-national-monument.
