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High Court Won’t Wade Into Undersea Monument Case

March 22, 2021 by Dan McCue
Corals were also diverse, but composition and abundance of corals differed between the north and south side of the seamount. We observed this colony of Jasonisis, a bamboo coral, with numerous crinoid associates.

WASHINGTON – The U.S. Supreme Court on Monday declined to consider whether the Obama Administration overstepped its authority in designating nearly 5,000 undersea acres off the Massachusetts coast a national monument, but Chief Justice John Roberts suggested it may be high time for the court to scrutinize the vehicle the president employed to do it.

The case stems from September 2016, when then-President Obama issued a proclamation creating the Northeast Canyons and Seamounts Marine National Monument.

It was the first marine national monument in the Atlantic Ocean, and consists of approximately 4,913 square miles of canyons and seamounts celebrated for their rich biological diversity. 

The acreage is located about 130 miles east-southeast of Cape Cod in an area of the ocean known as the Exclusive Economic Zone, and as part of his executive order, the oil, gas and mineral exploration, as well as most commercial fishing, was banned from the area.

Several commercial fishing organizations, led by the Massachusetts Lobstermen’s Association, sued, questioning whether or not the president had the authority under the federal Antiquities Act to create the monument.

The Act originated as a response to widespread defacement of Pueblo ruins in the American Southwest. Because there was “scarcely an ancient dwelling site” in the area that had not been “vandalized by pottery diggers for personal gain,” the Act provided a mechanism for the

“preservation of prehistoric antiquities in the United States.” 

The Act authorizes the president of the United States to declare “objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”

It further authorizes the president to “reserve parcels of land as a part of the national monuments.” Any parcel must be “confined to the smallest area compatible with the proper care and management of the objects to be protected.”

The fishermen put forward three arguments they said would show the president lacked the authority under the Antiquities Act to declare the Northeast Canyons and Seamounts a national monument.

First, they argued that the submerged lands of the Canyons and Seamounts are not “lands” within the meaning of the Antiquities Act. Secondly, they argued that the federal government does not “control” the lands on which the Canyons and Seamounts lie under the meaning of the Act. Finally, they argued that the amount of land reserved as part of the monument is not the smallest compatible with its management.

In a statement accompanying Monday’s order list from the High Court, Chief Justice John Roberts opined that “while the executive enjoys far greater flexibility in setting aside a monument under the Antiquities Act, that flexibility … carries with it a unique constraint:

Any land reserved under the Act must be limited to the smallest area compatible with the care and management of the objects to be protected. 

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” he continued.

“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.”

According to the Chief Justice, the national monument created by Obama “demonstrates how far we have come from indigenous pottery.” 

“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.

“We have never considered how a monument of these proportions—3.2 million acres of submerged land—can be justified under the Antiquities Act,” he continued. “And while we have suggested that an ‘ecosystem’ and ‘submerged lands’ can, under some circumstances, be protected under the Act, we have not explained how the Act’s corresponding ‘smallest area

compatible’ limitation interacts with the protection of such an imprecisely demarcated concept as an ecosystem.”

Though Roberts agreed with his fellow justices that the Lobstermen’s petition did not satisfy the court’s “usual criteria for granting certiorari,” he noted that no court of appeals has yet addressed how to interpret the Antiquities Act’s “smallest area compatible” requirement.

He went on to note that to date, the petitioners in the case have not suggested “what this critical statutory phrase means or what standard might guide [the court’s] review of the president’s actions in this area.”

“We may be presented with other and better opportunities to consider this issue without the artificial constraint of the pleadings in this case,” Roberts concluded. “I concur in the denial of certiorari, keeping in mind the oft-repeated statement that such a denial should not be taken as expressing an opinion on the merits.”

At present there are five other cases pending in federal courts concerning the boundaries

of other national monuments.

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