Roberts Harangues Marine Monument as Appeal Runs Aground

The chief justice said this particular monument challenge did not meet the Supreme Court’s bar but that several issues with the Antiquities Act make it ripe for future review.

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 U.S. Supreme Court nixed a challenge Monday to a fishing ban in a massive swath of the Atlantic Ocean that the federal government enshrined as the first-of-its-kind marine monument.

That the court is selective about what cases it hears is widely known — dozens of cases are summarily rejected every week, and today’s order list proved no exception. Singling out this case for attention, however, Chief Justice John Roberts took the unusual step this morning of essentially calling it open season for challenges of the marine monument.

“A statute permitting the president in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects’ — along with the smallest area of land compatible with their management — has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea,” Roberts wrote in a statement about the case

The statute to which Roberts is referring is the federal Antiquities Act, invoked in 2016 by former President Barack Obama to designate a Connecticut-sized area of commercial fishing zone as the Northeast Canyons and Seamounts Marine National Monument.

“The monument contains three underwater canyons and four undersea volcanoes. The ‘objects’ to be ‘protected’ are the ‘canyons and seamounts themselves,’ along with ‘the natural resources and ecosystems in and around them,’” Roberts added. “We have never considered how a monument of these proportions — 3.2 million acres of submerged land — can be justified under the Antiquities Act.”

Considering that national parks can be established only by an act of Congress, the Antiquities Act gives the president a fair amount of flexibility to protect land and sea. It does specify, however, that any parcels of land granted protection must “be confined to the smallest area compatible with the proper care and management of the objects to be protected.”

When the law was passed, Roberts notes, hunters of prehistoric artifacts had all but obliterated Pueblo ruins in the American Southwest. “The Northeast Canyons and Seamounts Marine National Monument at issue in this case demonstrates how far we have come from indigenous pottery,” he added.

After Obama left office, former President Trump reversed the Marine Monument designation in June 2020. How that move will fare in the new Biden administration is uncertain, but the groups led by the Massachusetts Lobstermen’s Association warned in a court filing that the reinstatement of fishing restrictions would devastate their industry and pressure sensitive ecologies outside the monument. 

Map of the Northeast Canyons and Seamounts Marine National Monument. (Credit: NOAA/U.S. Fish & Wildlife Service via Courthouse News)

Roberts notes that the case implicates weighty issues — namely “the scope of the objects that can be designated under the act, and how to measure the area necessary for their proper care
and management.”

For the chief justice, however, the fishing groups didn’t adequately plead their case.

“To date, petitioners have not suggested what this critical statutory phrase means or what standard might guide our review of the president’s actions in this area,” Roberts wrote.

Counting five other cases that concern the boundaries of other national monuments now pending in federal court system, Roberts said another challenge — one without what he called “the artificial constraint of the pleadings in this case” — may be present a better opportunity to consider the issue.

In the D.C. Circuit opinion, Judge David Tatel wrote that the challengers failed to show that the monument exceeds the bounds of protecting the underwater ecosystem. 

“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.

Apart from the marine monument case, there were other orders Monday that prompted several opinions from the justices, including Longoria v. United States, a case implicating a sentence reductions that the prosecution has the discretion to offer defendants who plead guilty, forestalling the need to prepare for trial. Justices Sonia Sotomayor and Neil Gorsuch noted Monday that, once the Sentencing Commission retains a quorum of voting members, it should have the opportunity to address whether an evidence-suppression hearing is tantamount to trial preparation.

The high court also passed Monday on reviewing Thompson v. Lumpkin, in which an appeals court denied a request for an evidentiary hearing from a death-row inmate who alleged errors only in his punishment proceeding. “I doubt the Fifth Circuit will repeat its error,” Justice Elena Kagan wrote, joined by Sotomayor and Justice Stephen Breyer.

Sotomayor wrote another opinion Monday, this time dissenting after her colleagues denied review of the case Smith v. Titus, where a trial was briefly closed to spectators for a key evidentiary decision. Sotomayor called Minnesota’s increasing restriction of public access in their courts “disturbing” and said she regret’s the bench’s “refusal to provide much needed guidance” to the lower courts. 

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