New Executive Order Adds to Legal Controversy Surrounding Marine National Monument

On his first day in office, President Biden issued an Executive Order broadly resetting environmental policy at the federal level in the United States. Executive Order 13,990 creates a policy to restore and expand national monuments, and also directs the Secretary of Interior to review monument boundaries and Presidential Proclamations affecting national monuments. One of the monuments listed for review is the Northeast Canyons and Seamounts Marine National Monument (Monument).

Controversy has surrounded the Monument since its creation in 2016. President Obama established the Monument by Presidential Proclamation under authority from the Antiquities Act. The Antiquities Act grants the President authority to create national monuments on federal lands to protect significant natural, cultural, or scientific features. President Obama’s Proclamation called for a phased-out ban on fishing in a 5,000 square mile area located approximately 130 miles off Cape Cod. This area encompasses three underwater deep-sea canyons and four underwater mountains, which are collectively home to unique deep sea corals, endangered whales, sea turtles, and other species. Supporters of the Monument highlight the need to protect rare and endangered species, and claim that protection for species within the Monument will lead to increased fish populations and healthier ecosystems outside of the Monument boundaries.

Several fishermen’s associations, however, express deep concern about restricting fishing within the Monument’s boundaries. In the past, the Monument area contained commercial fishing grounds for lobster, crab, scallops, swordfish, and tuna, with these fisheries collectively generating approximately $15 million in annual revenue. The fishermen’s associations argue that a prohibition on fishing within the boundaries is not needed, and argue that traditional fisheries management programs, such as those developed by the Regional Fishery Management Councils under the Magnuson-Stevens Act, should guide these decisions.

The establishment of the Monument was challenged in the United States District Court for the District of Columbia. In the complaint, the plaintiff fishermen’s associations asserted that President Obama lacked authority under the Antiquities Act to create the Monument because the Monument was not on “land owned or controlled by the federal government.” Among other arguments, the fishermen’s associations contended the Monument had to be established under the National Marine Sanctuaries Act, which has different procedural requirements than the Antiquities Act. The district court, however, rejected the plaintiffs’ arguments and held that President Obama had the authority to issue a Presidential Proclamation under the Antiquities Act. The plaintiffs appealed to the District of Columbia Circuit Court of Appeals, which was likewise unpersuaded by the plaintiff’s arguments.

While the legal challenges to the Monument’s establishment were making their way through the courts, President Trump issued a Presidential Proclamation in June 2020 to resume commercial fishing within the Monument’s boundaries. After the appellate court’s decision the following month, the fishermen’s associations filed a Writ of Certiorari to the United States Supreme Court that asked the Court to overturn the DC Circuit Court of Appeals’ decision. Several environmental organizations and other parties, however, argued the Supreme Court should not review the appellate court decision because the issue was moot, as the fishermen were no longer prohibited from commercial fishing within the Monument boundaries as a result of President Trump’s Proclamation. As of the inauguration, the Supreme Court had not issued a decision on whether it would take the case.

President Biden recently became the third President to weigh in on policy affecting the Monument. Through his Executive Order, President Biden directed the Secretary of Interior to conduct a review of monument borders and Presidential Proclamations affecting national monuments. Additionally, the Attorney General was directed to halt or delay further litigation of legal issues affecting monuments. In response to the Executive Order, the fishermen’s associations sent a letter to the Supreme Court asking for the Court to consider President Biden’s Executive Order when evaluating whether to accept the fishermen’s associations’ appeal from the DC Circuit Court. The letter suggested the Executive Order was further evidence that the legal issues affecting the Monument were not moot. The Supreme Court only accepts a small percentage of cases a year and, at this time, has yet not added the fishermen’s associations’ case to its docket. If the Supreme Court ultimately declines to review the case, the appellate court decision will remain binding, keeping the Monument intact under the terms originally set out in President Obama’s Proclamation.