Nearly three years ago, I expressed concern about what this President might do to the Northeast Canyons and Seamounts Marine National Monument, a protected area off the New England coast, and a haven for whales (see here and here), deep sea corals, and literally thousands of other species (see also here).
On June 5th, it finally happened, albeit in a somewhat surprising fashion. With social and medical crises rocking the nation, President Trump took a road trip to Maine to sign an order opening up the Monument to industrial fishing. By the stroke of a pen, the most environmentally-ruinous leader in the country’s history added the only marine national monument off the continental U.S. to his fire sale of the nation’s natural heritage.
Well, the other shoe dropped last week, as we said it would.
NRDC and our partners sued the Trump Administration to challenge its illegal action. In the Antiquities Act of 1906, Congress, which generally has exclusive power under the Constitution over disposal and regulation of U.S. property, gave the president the limited power to create a national monument and confer protections. But Congress reserved for itself the power to revoke that designation or those protections. By claiming that power for himself, President Trump overstepped the limits of his statutory authority and violated the separation‐of‐powers doctrine under the U.S. Constitution.
Commercial fishing—while an important source of sustenance and jobs for people around the world—is not an environmentally-benign activity. One pass of a large weighted bottom trawl net can destroy sensitive habitat, including deep-sea corals like those in the Monument that have been growing for hundreds or even thousands of years. Commercial fishing gears also inadvertently catch, injure, and kill non-targeted wildlife, include marine mammals, seabirds, and sea turtles—a phenomenon called “bycatch.” And vertical lines connecting traps and pots to buoys at the surface are known for entangling whales, often fatally, as well as sea turtles. Commercial fishing gear is frequently lost or abandoned in the ocean, causing bycatch and entanglement from so-called “ghost gear.” Finally, commercial fishing also results in increased vessel traffic and underwater noise, and an increased risk of ship strikes of marine mammals.
We’ve already successfully defended the Monument in court once before. In a case commercial fishermen filed to challenge the monument’s designation, both a federal district court and a federal appeals court have ruled that presidents have the authority under the Antiquities Act of 1906 to establish marine national monuments. We are confident that we will prevail once again in the courtroom.
The exact motivations of the President and his advisors remain a puzzle. Before its designation, Maine commercial fishermen didn’t fish in the Monument, which is 300 miles away. Given this President, politics were almost certainly the primary motivator behind the June 5th event. Trade was also a focus of the President’s remarks and there was discussion of a recently-issued seafood executive order (see my colleague’s blog here), but the Monument has no tie to either.
For its part, members of commercial fishing industry have seemed to support Trump’s order, and have offered the following reasons: (1) the regional fishery management councils carrying out the mandates of the Magnuson-Stevens Act, the federal fisheries law, can adequately protect the Monument (President Trump’s order also makes this argument); (2) the Monument has caused economic harm to fishermen; and (3) the commercial fishing industry was shut out of the Monument’s designation process.
But the commercial fishing industry’s support is sorely off base, and here’s why:
1. The regional fishery management councils can’t sufficiently protect the Monument’s unique and sensitive ecosystems under Magnuson.
Unlike the Antiquities Act, the Magnuson-Stevens Act is not primarily a preservation statute. Its goal is not to protect ocean biodiversity, ecosystem health or objects of historic or scientific interest, but to promote sustainable fisheries. Congress did not intend its provisions, including those relating to bycatch, habitat, and deep sea corals, to provide the kind of holistic and long-term protection that President Obama’s 2016 Proclamation creating the Monument provides.
Here’s an example of these differences in action: the New England Fishery Management Council and the Mid-Atlantic Fishery Management Council have acted to put some protections in place in parts of the Monument area pursuant to the Magnuson-Stevens Act’s essential fish habitat and deep-sea coral provisions. But these actions—contrary to the New England council’s press release issued the morning NRDC filed its lawsuit—offer far less protection than what the 2016 Monument Proclamation provides. Specifically, prior to Monument’s designation, the two councils prohibited bottom trawls in certain deeper portions of two of the Monument’s canyons. Since designation, the New England Council has also developed an action (yet to be implemented) that would prohibit bottom trawls and lobster traps in Monument areas deeper than 600 meters. Both of these actions were intended to prevent possible future expansion of these gears’ use, but not to interfere with existing or recent fishing practices. Specifically, the councils’ actions do not restrict bottom trawling and lobster traps in the shallower portions of the Monument, where all such fishing has historically occurred (and where known deep-sea coral habitat exists). In other words, what the councils have chosen to protect in the Monument under Magnuson is extremely limited, i.e., they wholly don’t address impacts occurring as a result of existing fishing.
In addition, the council actions are limited to bottom trawling. They do not prohibit red crab fishing (which is done with heavy pots and vertical lines), other types of trawling, or pelagic longlining in the Monument. As described above, these gears can cause bycatch of non-target species (including seabirds, turtles, whales, and dolphins); entanglement of marine mammals and other species; disturbance of fish foraging, breeding, nursery, and other essential activities; and the removal of fish prey. Commercial fishing generally also makes the Monument less suitable for scientific research.
2. There is simply no evidence the Monument is harming the commercial fishing industry.
Like nearly every other industry, commercial fishing is suffering great hardship during the COVID-19 crisis. Prior to the pandemic, however, fishermen could catch their quotas without having access to the marine monument. Since the Northeast Canyons and Seamounts designation and before the pandemic, government landings and revenues data show no indication that the Canyons and Seamounts monument has caused any economic loss for the commercial fishing industry. In fact, landings and revenues in the fisheries that had previously operated in the Monument area, the U.S. Atlantic squid, mackerel and butterfish fishery and the tuna and swordfish fishery, have either increased or remained essentially the same since the designation.
3. The Monument’s designation process solicited and received significant input from both the commercial fishing industry and regional fishery management councils.
The Northeast Canyons and Seamounts was created after a deliberative process extending over two years that incorporated multiple public meetings and meetings with stakeholders. That included the fishing industry. The NOAA Fisheries Regional Administrator at the time described the extensive exchange of information here (pages 128-129).
Specifically, the extensive public engagement process included:
- A “town hall” meeting in Providence in September 2015, where many fishermen attended and spoke;
- Spring 2016 meetings between Obama Administration officials, fishermen, state agency officials, and representatives of elected officials in Boston, New Bedford, and Providence;
- May-June 2016 meetings between Administration officials, fishing industry representatives and representatives from the Atlantic States Marine Fisheries Commission in Washington, D.C.;
- An August 2016 meeting between Administration officials and fishermen in Washington, D.C.;
- September 2016 meetings between Administration officials and fishermen in the region; and,
- Frequent (almost weekly) informal communications between Administration officials and fishing industry representatives in the months leading up to the designation.
In fact, the commercial fishing industry’s input in these exchanges had an impact: the Obama administration cut the Monument’s canyons unit by more than half from its original proposal and provided a seven-year phase out for the lobster and red crab fisheries.
The Northeast Canyons and Seamounts Marine National Monument represents the future. It is intended to be a “blue park,” safeguarding a unique and fragile piece of our ocean for the benefit of future generations. Marine protected areas serve a broader purpose as well. By providing a safe haven for marine life, free from the pressures caused by commercial extractive activities like fishing, drilling and mining, such areas help support healthier and more resilient populations.
To help combat the twin crises of biodiversity loss and climate change, scientists are calling for strongly protecting at least 30 percent of the world’s ocean by 2030. We cannot afford to be stripping protections from areas like this. Indeed, the best science dictates that we need to work together to affirmatively protect more of our ocean, and fast.
NRDC is fighting for this future, and we’ll see Trump and his officials in court.