UPDATE: On March 22, 2021, the U.S. Supreme Court declined to hear a case brought by the commercial fishing industry challenging the president’s authority to create marine monuments under the Antiquities Act.
The federal appeals court in Washington, D.C., is poised to decide the fate of America’s first marine national monument in the U.S. Atlantic Ocean: the Northeast Canyons and Seamounts Marine National Monument. A federal district court upheld Northeast Canyon’s legality in a well-reasoned opinion last year, but commercial fishing industry groups have appealed that decision to the U.S. Court of Appeals for the D.C. Circuit. NRDC, the Conservation Law Foundation, the Center for Biological Diversity, and a whale-watch naturalist based in Maine previously intervened to help defend the Northeast Canyons and Seamounts. Just last week, we filed a brief urging the D.C. Circuit to affirm the district court’s decision.
The United States’ oceans are an invaluable part of our natural heritage. Marine national monuments, including Northeast Canyons, play an important role in protecting these resources for the benefit of future generations. In a 1906 law called the Antiquities Act, Congress authorized the President to designate “objects of historic or scientific interest” located on “land owned or controlled by the Federal Government” as national monuments, and to reserve those lands for the protection of the objects. The Antiquities Act is one of America’s longest-lived and most successful conservation laws. It’s the same law that allowed for the protection of Muir Woods in California, and even the Grand Canyon and the Statue of Liberty. Bears Ears and Grand Staircase-Escalante are also notable national monuments created through the Antiquities Act that NRDC is fighting to protect.
The district court judge importantly found that the word “land” in the Antiquities Act isn’t limited to dry land, as the commercial fishing groups argue. It also includes submerged land, as all three branches of the federal government have long agreed. Starting in the 1930s, Presidents have used their Antiquities Act authority to protect special marine ecosystems off America’s coast. And Congress, too, has passed legislation for the creation or expansion of multiple monuments in the ocean, eventually re-designating some of them as national parks. One of America’s most iconic early examples is Glacier Bay, which President Franklin Roosevelt expanded in 1939 to include submerged lands and waters within three nautical miles off Alaska’s coast. Considering Roosevelt’s actions, the Supreme Court in 2005 called it “clear” that “the Antiquities Act empowers the President to reserve submerged lands.”
In recent decades, presidents have designated marine monuments further out in the ocean, in what is known as the United States’ exclusive economic zone—an area stretching out to 200 nautical miles from our coasts. These marine monuments reflect advances in both the land under the United States’ “control”—which is required by the Antiquities Act—and scientists’ understanding of marine ecosystems. For example, President George W. Bush designated several national monuments in the Pacific Ocean to protect coral reefs, marine life, and biological hotspots: Papahānaumokuākea Marine National Monument, Pacific Remote Islands Marine National Monument, Marianas Trench Marine National Monument, and Rose Atoll Marine National Monument.
Following in this tradition, President Obama established the Northeast Canyons and Seamounts in 2016. Located about 130 miles off the coast of Cape Cod, the Northeast Canyons and Seamounts national monument protects a dramatic undersea landscape—featuring three deep underwater canyons and four extinct volcanoes, known as “seamounts”—along with the fragile, interconnected ecosystems found in and around them. These ecosystems include endangered whales, sea turtles, seabirds, and rare deep-sea cold-water corals. Many of these corals are hundreds or thousands of years old, and their slow growth rates make them particularly vulnerable to irreparable damage.
Through his proclamation, President Obama permanently protected this area from commercial extractive activities—oil and gas development, deep seabed mining, and commercial fishing (with a limited phase-out period for lobster and crab fishing)—thereby safeguarding a national treasure to be passed down to generations to come. The Monument helps ensure that the diverse and abundant ecosystems of the canyons and seamounts remain intact and pristine. The protections also help improve ocean resilience to warming temperatures and other threats.
Even as they have much more to learn, scientists have already made a string of important discoveries in the Monument. A series of survey overflights have shed light on the extraordinary importance of the area to marine mammals, with more than 600 dolphins and whales observed in less than four hours during a recent flight. During submersible dives in the Monument last year, scientists found two likely new species of “bubblegum” coral. As President Obama’s proclamation stated, “[m]uch remains to be discovered about these unique, isolated environments,” and the monument’s protections ensure that future generations may continue to benefit from the treasure trove of knowledge waiting to be found there.
The commercial fishing groups filed their original legal challenge to the Monument in March 2017. They argued that President Obama lacked authority to designate the Northeast Canyons for essentially three reasons: the Antiquities Act applies only to dry land, not to submerged lands and waters; the Antiquities Act does not apply in the exclusive economic zone; and the Northeast Canyons covered too large an area. The first two of these arguments could jeopardize not just Northeast Canyons but other existing ocean monuments. Although the commercial fishing groups lost in the district court on all three of their arguments, they are making the same arguments to the D.C. Circuit in their appeal.
In response, the brief filed by NRDC and our partners highlights that the Supreme Court found, some forty years ago, that there is “no serious question” that the Antiquities Act authorizes the President to protect submerged lands and waters in the ocean. Our brief also explains that the U.S “controls” its exclusive economic zone for purposes of the Antiquities Act and that the President acted entirely within his statutory authority when he protected Northeast Canyons’ ecosystems as objects of scientific interest. The U.S. Department of Justice also filed a brief in support of the monument last week. Briefing in the appeal will be completed in July 2019 and will be updated on our Court Battles page.
This blog provides general information, not legal advice. If you need legal help, please consult a lawyer in your state.