Two fishermen — one from New Jersey and one from Massachusetts — are suing President Joe Biden and two U.S. secretaries over the closure of a 3.1-million-acre area in the North Atlantic to commercial fishing, a move they say exceeds presidential authority.
The Northeast Canyons and Seamounts Marine National Monument, which sits near Georges Bank, is about the size of Connecticut and was first designated a protected area in 2016 by then-President Barack Obama under the Antiquities Act of 1906.
It’s made up of three undersea canyons and four seamounts (underwater mountains formed by volcanic activity) that host diverse ecosystems of deep sea corals, endangered whales and sea turtles, and several fish species including swordfish and tuna, which the plaintiffs catch.
Tim Malley, one of the plaintiffs, is a 74-year-old Scituate resident who last year purchased a New Bedford fishing vessel for swordfish and tuna fishing. He has been fishing off the coast of Florida and plans to return to the Port of New Bedford in June to begin several weeks-long fishing trips near the monument.
He is concerned about not only the potential financial impact the closure will have, but also the nature of the federal government’s action, which the lawsuit alleges is overreaching and unlawful.
“The fishery is well managed. [The proclamation] is an end run around all management systems in place,” Malley said in an interview with The Light. “I am looking at losing a pretty important part of our fishing grounds.”
He and New Jersey fisherman Patrick Fehily in their complaint argue Congress did not give the president power to ban commercial fishing under the Antiquities Act.
The Biden administration “relied on an expansive reading of the century-old Antiquities Act,” argues the Pacific Legal Foundation, the organization representing the fishermen pro bono. The legal nonprofit “defends Americans from government overreach and abuse,” according to its website.
“The president does not have the authority to prohibit commercial fishing across 5,000 square miles of ocean,” said a statement from the foundation.
In October of 2021, Biden issued a presidential proclamation reinstating Obama’s proclamation and commercial fishing ban after then-President Donald Trump issued a proclamation to allow commercial fishing to resume.
Under the current proclamation, lobster and red crab commercial fishing are temporarily exempt from the ban until 2023, while all other commercial fishing is banned. Recreational fishing and research activity can continue.
Malley said he invested close to $1 million in purchasing and repairing the New Bedford vessel last year, and estimates up to 30% of his income could come from what he fishes in the Northeast.
He previously owned and operated a swordfish vessel in the ’70s and ’80s before shifting to the seafood industry, and said he fished in what is now the monument area for several years.
There are swordfish and tuna outside the monument, but Malley said fishing beyond it could require farther and more dangerous travel from shore.
The Light interviewed a fishing crew based in Fairhaven last fall, who said sometimes “you don’t want to be in there,” but for the past few years, fishing in the monument has been very good. Tuna and swordfish are migratory species, so the prime fishing areas can shift.
The country’s regional fishery management councils previously submitted letters to federal leadership as early as 2016 expressing concern about the monument. The councils said the monument designation can be “counterproductive” to fishery management goals, negatively impact job opportunities and shift fishing to less sustainable practices.
Before Biden issued his proclamation, the New England and Mid-Atlantic fishery councils established coral protections beyond the monument. The New England council’s coral amendment, which took effect in July of 2021, covers 25,153 square miles, including 82% of the monument, according to the council.
Mayor Jon Mitchell in a statement last fall said that in the future, the conservation of ocean habitats “should be left exclusively to NOAA’s regulatory processes, which are set up to carefully balance ecological risks and the economic interests of commercial fishermen and fishing communities.”
In contrast, Biden’s reinstatement of the commercial fishing ban was lauded by environmental groups and institutions, such as Oceana and the New England Aquarium, which categorized commercial fishing as a “harmful” human activity in the monument.
Natural Resources Defense Council, an environmental advocacy nonprofit, called the canyons and seamounts a “spectacular ocean wilderness” and a “critical laboratory” for studying the effects of a warming ocean.
The federal government classifies the entire ecosystem as a monument resource, containing objects of scientific and historic interest under federal ownership or control. According to the White House, the monument status will expand the opportunity for scientific study and exploration, and protect and preserve natural resources threatened by “varied uses” and climate change.
The fishermen’s complaint challenges the application of the Antiquities Act, alleging the monument area is not on “land” under the act; that the protected ecosystems and biodiversity are not “objects of scientific or historical interest” that can be designated as part of a national monument; and that the monument is not the “smallest area compatible” with management as required by the act.
The Antiquities Act and marine national monuments
- June 15, 2006: President George W. Bush establishes the Papahānaumokuākea Marine National Monument through a presidential proclamation and under the authority of the Antiquities Act of 1906.
- January 6, 2009: President George W. Bush establishes three more marine monuments in the Pacific Ocean under the Antiquities Act: the Marianas Marine National Monument, the Pacific Remote Islands National Monument and the Rose Atoll Marine National Monument. The four Pacific marine monuments total nearly 1.2 million square miles, according to NOAA Fisheries. Obama had expanded two during his presidency.
- Sept. 15, 2016: President Barack Obama establishes the Northeast Canyons and Seamounts Marine National Monument and a commercial fishing ban within the monument area under the Antiquities Act. Fishermen in the deep-sea red crab and lobster industries are given an exemption of seven years to phase out their operations in the monument. Recreational fishing may continue.
- June 5, 2020: President Donald Trump amends Obama’s proclamation, restoring some of the fishery management councils’ authority to regulate fishing in those waters and allowing commercial fishing once again.
- Oct. 8, 2021: President Joe Biden issues a proclamation that reinstates Obama’s proclamation. The commercial fishing ban is adopted again with the same exemption for lobster and red crab commercial fishing, which is set to expire in 2023. Recreational fishing may continue.
Credit: Anastasia E. Lennon
Four attorneys with Pacific Legal filed the lawsuit in federal court on April 12. The fishermen are seeking declaratory and injunctive relief.
“Unless a permanent injunction is issued to forbid the implementation of Proclamation 10287’s fishing ban, Plaintiffs will be irreparably harmed,” the complaint states. “The fishermen are suffering and will continue to suffer a diminution of income, reduced fishing opportunities, and depletion of value in their fishing vessels.”
A spokesperson for the Department of the Interior declined The Light’s request for comment from Interior Secretary Deb Haaland, one of the defendants. The White House and office for the Department of Commerce, of which defendant Gina Raimondo is secretary, did not respond to a request for comment.
The Massachusetts Lobstermen’s Association, also represented by Pacific Legal Foundation, in 2020 petitioned the U.S. Supreme Court to hear its challenge of Obama’s proclamation and use of the Antiquities Act for the same monument, citing some of the same arguments this latest lawsuit cites.
The case was dismissed by the district and circuit courts before the Supreme Court in 2021 denied the petition and declined to hear the case.
However, U.S. Chief Justice John Roberts in an opinion on the case raised concerns, writing that the monument “remains part of a trend of ever-expanding antiquities.”
President George W. Bush between 2006 and 2009 established four marine monuments in the Pacific Ocean under the Antiquities Act. Obama expanded two of them during his presidency. Commercial fishing in the Pacific marine monuments is largely prohibited.
“A statute permitting the President in his sole discretion to designate as monuments ‘land-marks,’ ‘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.
Putnam Maclean, the owner of two swordfish and tuna vessels out of Fairhaven, said Roberts’ opinion created a roadmap for future cases challenging the monument.
Frank Garrison, one of the Pacific Legal attorneys on the case, in a written statement to The Light said Roberts recognized the executive branch “overreach” under the Antiquities Act in the dismissed Massachusetts Lobstermen’s Association case.
“We believe we were right on the law before, and we believe the President is exceeding his authority under the Act now,” Garrison said.
Email Anastasia E. Lennon at email@example.com.