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  • Court Dismisses Challenge to
    Marine National Monument Designation

  • October 25th, 2018 — by Terra Bowling — Category: Marine Monuments


  • In 2016, President Obama designated the Northeast Canyons and Seamounts Marine National Monument under the Antiquities Act. The monument, which encompasses 4,913 square miles off the coast of New England, marked the first marine national monument in the Atlantic Ocean. Recently, in Massachusetts Lobstermen’s Association v. Ross, the U.S. District Court for the District of Columbia rejected a challenge to the designation. (2018 WL 4853901 (D.D.C. Oct. 5, 2018)).

    The Antiquities Act grants the President the authority to establish national monuments to protect “...historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government... .” 54 U.S.C. § 320301(a). The President may reserve parcels of land as part of the monument; however, the reserved land must be “confined to the smallest area compatible with the proper care and management of the objects to be protected.” Id. § 320301(b). In Massachusetts Lobstermen’s Association, several commercial fishing associations argued that the Antiquities Act does not give the President the authority to designate the Northeast Canyons and Seamounts for several reasons: “first, because the submerged lands of the monument are not ‘lands’ under the Antiquities Act; second, because the federal government does not ‘control’ the lands on which the Canyons and Seamounts lie; and third, because the amount of land reserved as part of the Monument is not the smallest compatible with its management.”

    The court first addressed the claim that the Antiquities Act does not cover submerged lands. The court cited U.S. Supreme Court precedent concluding that the Antiquities Act does, in fact, encompass submerged lands. The court noted that “executive practice” supported designation: past presidents have frequently reserved submerged lands as national monuments. For example, President George W. Bush designated the Papahānaumokuākea Marine National Monument in Hawaii in 2006. The court also reasoned that the ordinary meaning of “land” includes submerged land. Finally, the court rejected the notion that the National Marine Sanctuaries Act (NMSA) precludes Antiquities Act designations in marine areas. The court reasoned that, although both Acts address ocean conservation, “they do so in different ways and to different ends.” The Antiquities Act is focused primarily on preservation, while the NMSA addresses a broader range of values within a marine area, including recreation.

    The court next addressed the argument that the federal government does not “control” the lands within the monument. The Antiquities Act specifies that designations may be “on land owned or controlled by the Federal Government... .” 54 U.S.C. § 320301(a). The court rejected the plaintiff’s argument that the government must exercise “complete control” over the Exclusive Economic Zone. The court concluded that the government adequately controlled the area for the purposes of the Act.

    Finally, the court addressed whether the monument was the smallest area compatible with the area’s management. The plaintiffs argued that the monument includes areas that are well outside the canyons and seamounts, which are the defining physical characteristics of the area. The court noted that “The Proclamation makes clear that the ‘objects of historic and scientific interest’ include not just the ‘canyons and seamounts’ but also ‘the natural resources and ecosystems in and around them.’”

    Ultimately, the district court granted the government’s motion to dismiss the challenge. The ruling confirms that the Antiquities Act may be used to establish national marine monuments. Despite this, change may still be afoot for the Northeast Canyons and Seamounts Marine National Monument.

    In two separate executive orders issued in 2017, President Trump ordered the review of certain national monuments and national marine sanctuaries. Secretary of the Interior Ryan Zinke subsequently reviewed 27 monuments, including the Northeast Canyons and Seamounts. In December 2017, Secretary Zinke issued a final report that recommended changing management practices at the Northeast Canyons and Seamounts to allow its fisheries management council to make fishery management decisions. The President has not yet issued an executive order to implement these changes.


  • Terra Bowling
    Senior Research Counsel
    tmharget@olemiss.edu


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