An Atlantic Antiquity: A Thriving Fishery About to be Deep-Sixed?

Some old statutes remain very much alive. Should they have a "sell-by" date?

Fisheries everywhere have been collapsing, some at alarming rates.  The Atlantic coast fisheries that traditionally meant the most revenue, the most jobs, and the most stability have been no exception.  (See this recent Science piece suggesting that the latest collapse of cod populations has been helped by rapidly warming waters.)  But now enter the potential of something truly new under the Sun: designating a key habitat region for many north Atlantic fisheries a “national monument” pursuant to the Antiquities Act of 1906 in order to exclude fishing from that habitat.  The Antiquities Act says that the President of the United States (POTUS)

is hereby authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.

16 U.S.C. § 431.

Now marine monuments aren’t that new.  And monuments for essentially environmental purposes aren’t either.  But marine monuments aimed at protecting habitat features in order to support fishers who have, for decades now, proven themselves essentially incapable of successfully protecting their own “resource”?  Well that probably is new.  But it comes with a twist: a second-term President can do it with a stroke of the pen that is virtually immune from legal scrutiny of any kind.  The Antiquities Act might be used to take management authority away from the parties who have thus far failed to manage effectively.

A spate of designations at the end of the Clinton Administration led to years of litigation that changed nothing.  (Indeed, public lands lawyers know this statute for its virtually unequaled run at SCOTUS and in the lower courts affirming executive branch discretion and power.  If the Devil’s Hole pupfish can support a major monument, see Cappaert v. United States, 426 U.S. 128 (1976), the canyons of the Gulf of Maine probably can too.)

This designation is different, though.  The New England Fishery Management Council, the regional body chartered by federal law to collect private, state and federal stakeholders into a single

Gulf of Maine Habitat Regions

Gulf of Maine Habitat Regions

managing body, began hosting a kind of ad hoc deliberative process surrounding the designation earlier this year.  Its own temporary exclusion zones are a constant source of strife at the New England council where politics and science mingle endlessly.  The designation of a monument would be for keeps, though.

You see, the Antiquities Act is quite a throwback.  It empowers POTUS to take action unilaterally that will remain in effect in perpetuity.  And because the final action is by POTUS, the intricate web of statutory controls on discretionary action which was later legislated—laws like the Endangered Species Act, the National Environmental Policy Act (NEPA), the Administrative Procedure Act, etc.—are all inapplicable.  These restrictions essentially don’t exist relative to the Antiquities Act.  But should they?

What Public, NEPA-Like Process Should Attend National Monument Designations?

The National Oceanic & Atmospheric Administration (NOAA) administers most of the environmental laws governing our marine resources.  NOAA staff support the regional councils charged with managing specific fisheries.  And NOAA is fully constrained by the laws mentioned above.  One of those statutes is the National Marine Sanctuaries Act (NMSA), a law that allows for exactly the kind of tool supposedly being fashioned by the Obama Administration out of the Antiquities Act.

Should the NMSA prevent recourse to the Antiquities Act?  The proposal has been more divisive than the Obama Administration probably anticipated.  Some fishing communities view it as an end-run around a carefully constructed “democratic” process (albeit one wrapped within a hybrid administrative structure that bears tenuous connections to any recognizably democratic accountability) otherwise governing Atlantic fisheries.  Alternatively, where some see this as a threat to the money-making uses of the adjacent Atlantic, others view it as safeguarding that very resource.

Finally, many have come to view the quasi-public process in progress with skepticism, especially as the (reported) boundaries and size of this area seem to morph the more the public grows alert to the possibilities.  A “town hall” meeting put together by NOAA in Providence, RI, in September drew a healthy—and divided—crowd.

A polite request shortly thereafter from much of the Massachusetts congressional delegation quietly asked President Obama to expand the public process before deciding.

One Legal Question (or perhaps two): The NMSA

Probably the most potent question, assuming some NEPA issues can be addressed, is the extent to which the National Marine Sanctuary Act, 16 U.S.C. §§ 141-1445b, can or should confine presidential power under the Antiquities Act in the marine context.  The one thing that can limit discretion granted by a federal statute is a cognate federal statute.  The NMSA authorizes the Secretary of Commerce to designate and protect areas of the marine environment for their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational or esthetic qualities as sanctuaries.  In short, there is at least a case to be made that Congress replaced the wide open, uninhibited executive discretion of the Antiquities Act with the NMSA for the marine context.  The NMSA provides standards for designation, see id. at § 1433(a), discrete factors to be weighed and consultations to be conducted, id. at § 1433(b), and, perhaps most importantly, transparent public procedures that must be followed.  See id. at §§ 1434(a)-(f).

Finally, the Commerce Secretary isn’t the President.  S/he isn’t immunized from the APA or other statutory controls that only apply to agency actions.  See Dalton v. Specter, 511 U.S. 462 (1994); Franklin v. Mass., 505 U.S. 788 (1992).  Any NMSA action would presumably trigger NEPA § 102(2)(C), at least if the “sanctuary” being designated changes the legal status quo enough to make a real practical difference in the environment.  Were the Obama Administration to designate the portion of the Gulf of Maine in question pursuant to NMSA, it would have to contend with NMSA procedures and criteria, NEPA procedures and analytical requirements, and judicial review pursuant to the APA.

Without specifics it’s impossible to say whether NMSA should preempt this exercise of Antiquities Act power and, thus, whether NEPA should apply here.  And it will be interesting to see which way the Administration decides.

Good, Bad or Indifferent? Permanent Closure to Fishing Would Mostly Benefit . . . Fishers

At least one operator in the Atlantic region in question rejects this thinking.  This op-ed in The Hill, along with Mr. Williams’ testimony to the House Natural Resources Committee’s Subcommittee on Water, Power and Oceans, made the case that the proposed designation would be overbroad.  According to Williams, a “red crab” fishery would be excluded by the national monument designation—a fishery involving operators who recently spent handsome sums to be certified “Ocean Friendly” by the New England Aquarium and “sustainable” by the Marine Stewardship Council.

In the coming months this process will come to one closure or another.  What it will do for our ailing North Atlantic fisheries, though, is over a much more distant horizon.

{Image: A kelp forest on Cashes Ledge © Conservation Law Foundation}

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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