Atlantic Ocean’s First Marine Monument Survives Court Challenge

Researchers with the NOAA ship Okeanos Explorer included this image of an octopus in its collection of images from a 2013 expedition in the canyons that make up the Northeast Canyons and Seamounts Marine National Monument. NOAA via Courthouse News Service)

WASHINGTON (CN) — The D.C. Circuit upheld national monument status Friday for a 5,000 square-mile network of undersea canyons and mountains off the coast of New England.

Designated in September 2016 by then-President Barack Obama, the Northeast Canyons and Seamounts Marine National Monument sits 130 miles off of Cape Cod and covers an area roughly the size of Connecticut.

The Pacific Ocean is home to three such monuments, but Obama’s marks the first in the Atlantic Ocean, encompassing a unique ecosystem that is home to endangered whales and turtles, as well as a bounty of fish and rare deep-sea corals.

Triggering the litigation at issue, however, the seascape is also one that fishermen have trawled for centuries.

One area covers three parallel canyons that plunge as deep as 3,200 feet and cut into the edge of the continental shelf. The second portion draws a triangle around four extinct underwater volcanoes that soar as high as 8,200 feet off of the seabed.

A collection of commercial fishing groups appealed after failing to persuade a federal judge that the administration overstepped its authority in cordoning off the area.

In his October 2018 ruling, U.S. District Judge James Boasberg invoked the words of Teddy Roosevelt praising American natural sites.

“Dating back 100 million years — much older than Yosemite and Yellowstone — they are home to ‘vulnerable ecological communities’ and ‘vibrant ecosystems,’” Boasberg wrote. “And, as was true of the hallowed grounds on which Roosevelt waxed poetic, ‘much remains to be discovered about these unique, isolated environments.’”

The fishing groups failed as well on Friday. Citing Supreme Court precedent and the federal government’s control over the high seas, the D.C. Circuit explained that that the Antiquities Act can be used to cover both features found on dry land and those submerged under the ocean’s waves.

Map of the Northeast Canyons and Seamounts Marine National Monument. Credit: NOAA/U.S. Fish & Wildlife Service
An aerial survey

In an earlier brief made in support of the marine monument, environmental organizations disputed claims made by fishing groups that the monument is too expansive, arguing that the goal of the monument was to protect both the area and its ecosystem.

“Reading such a requirement into the Antiquities Act would be grossly impracticable and unnecessary, stymieing presidential action in exactly those situations where monument protection can be most merited: where the deserving objects exist at a significant scale and complexity and where they have not yet been fully studied,” the brief stated.

One argument that proved unsuccessful for the challengers was that the government lacks authority over the band of ocean 12 to 200 nautical miles offshore.

Writing for a three-judge panel, U.S. Circuit Judge David Tatel, a Clinton appointee, emphasized that the Antiquities Act allows national monuments to be created on land “owned or controlled by the federal government,” a requirement met in this case because no other government or private entity exercises control over that stretch of open ocean.

“Like one of America’s very first national monuments, the Grand Canyon, the Northeast Canyons and Seamounts is a natural treasure,” Kate Desormeau, senior attorney for the Natural Resources Defense Council, said in a statement.

The Trump administration has acted to protect the marine monument, which was created by former President Obama during his time in office. Although President Trump has loosened environmental protections in favor of commerce, his Federalist administration could have interest in protecting the presidential power of establishing national monuments.

The Justice Department argued last year that the case should be dismissed based upon the Antiquities Act, which allows presidents to declare historic landmarks.

“Put simply, because the President lawfully exercised his authority under the Antiquities Act to create the Northeast Canyons and
Seamounts Marine National Monument, Plaintiffs’ case should be dismissed,” the DOJ stated in court documents.

The fishermen also failed to convince the panel that the government could have achieved its goals with a smaller monument. A Clinton appointee, Tatel noted to this end that the monument was not meant to protect just the canyons and the mountains, but the surrounding ecosystem. He said the challengers did not provide evidence the monument does anything more than that.

“The fishermen failed to do so: the complaint contains no factual allegations identifying a portion of the monument that lacks the natural resources and ecosystems the president sought to protect,” the 18-page opinion states.

Damien Schiff, an attorney for the commercial fishing associations with the Pacific Legal Foundation, did not immediately return a request for comment.

Jonathan Wood, an attorney for the fishing groups, said in a previous interview with Courthouse News that the monument will be worse for the environment.

“By locking fishermen out of this healthy fishery, the monument designation will ironically put pressure on other, less healthy fisheries,” Wood said. “The monument designation will force fishermen to seek out other areas, which are less healthy. It also undermines the collaborative regulatory process that has made this fishery healthy.”

The Department of Commerce and the Department of the Interior did not return requests for comment. Tatel was joined on the panel by Patricia Millett, an Obama appointee, and Douglas Ginsburg, a Reagan appointee.

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