How big is too big for a national monument designated by a president? That has been an unanswerable question, legally, for some years, but a U.S. Supreme Court decision declining to hear a challenge to the designation of Northeast Canyons and Seamounts National Monument off the East Coast could move us closer to an answer.
When the Antiquities Act was signed into law in 1906, it gave presidents power to create national monuments "which in all cases shall be confined to the smallest area compatible with proper care and management of the objects to be protected..."
You can go back, at least, to 1996, when President Clinton designated the 1.9-million acre Grand Staircase-Escalante National Monument in southern Utah, to find arguments over what constitutes the "smallest area compatible."
That designation, of course, was met with an uproar from Utah's politicians and Congressional delegation, an uproar that wasn't quelled until President Trump in 2017 redrew the lines to substantially cut a combined 2 million acres from Grand Staircase and Bears Ears National Monument, also in Utah. At the time, Trump maintained that Presidents Clinton, who designated Grand Staircase-Escalante in 1996, and Obama, who established Bears Ears at the end of 2016, "severely abused the purpose, spirit, and intent of a century-old law known as the Antiquities Act."
While litigation continues to this day over whether Trump had the authority to shrink the monuments, another case that challenged the size of Northeast Canyons and Seamounts National Monument, which Obama designated in 2016, has been derailed by the Supreme Court's decision not to consider an appeal from a lower court that upheld the designation in 2019.
The 5,000-square-mile national monument encompasses a biologically robust area located about 100 miles southeast of Cape Cod National Seashore. It became the Atlantic Ocean's first national monument when Obama established it. President Trump last June removed restrictions that kept commercial fishermen out of the monument.
Despite Trump's actions, a group of commercial fishermen continued to pursue their case in court after the loss in the D.C. Circuit Court, hoping the Supreme Court would take up the matter. But the high court refused, and in a brief statement issued Monday the chief justice, John Roberts, said part of the problem with the case was that the fishermen failed to explain what would be too big in designation of a national monument.
"We have never considered how a monument of these proportions—3.2 million acres of submerged land—can be justified under the Antiquities Act. 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," wrote the chief justice. "No court of appeals has addressed the questions raised above about how to interpret the Antiquities Act’s 'smallest area compatible' requirement. The D. C. Circuit ... held that petitioners did not plead sufficient facts to assess their claim that the Monument swept beyond the 'smallest area compatible' with management of the ecosystem. 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."
That said, Chief Justice Roberts noted that the high court might get another chance to rule on that question as there are "five other cases pending in federal courts concerning the boundaries of other national monuments."
The court's decision not to consider the appeal was applauded by the Natural Resources Defense Council, where Kate Desormeau, senior attorney for NRDC, said "The commercial fishing industry’s attack on Northeast Canyons and Seamounts has now failed at every level of the federal courts."
“The Chief Justice’s solo statement raised questions about the size of national monuments in the abstract. But there is ample scientific support for Northeast Canyons and Seamounts’ boundaries, developed through a year-long process during the Obama administration," she added. "In recent years that rationale for the monument has only gotten stronger. And there’s plenty of historical precedent, too: Presidents of both parties have long agreed that special ocean areas like this one can be protected as national monuments – and that means protection from extractive industry uses, like commercial fishing. The fight to protect Northeast Canyons and Seamounts isn’t over with today’s decision. We are still in court with our partners challenging President Trump’s illegal move last year to open the marine monument up to commercial fishing.
“President Biden should restore full monument protections to Northeast Canyons and Seamounts with a new proclamation right away, and his administration has heard an outpouring of public support for the monument," said Desormeau. "Restoring protections is essential to safeguarding its fragile biological resources from industrial exploitation, bolstering the ecosystem’s resiliency in the face of a changing climate, and safeguarding this special place for generations to come.”
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Comments
Sure looks like its in International waters. Why would Canadian fisherman stay away?
They should stay away because all of those monuments are within the US 200-mile exclusive use zone and on the US side of the international maritime border, both of which are shown on the map.
its not in international waters. its in the US Exclusive Economic Zone. Under the Law of the Sea Treaty ratified in the early 80s, an EEZ is a zone out to 200 nautical miles from the territorial waters of any country with an ocean coastline. That zone is under the exclusive control of that country, basically its an extension of the territory of that country. the US has EEZs in the Atlantic , Pacific and Arctic Oceans, most of the Pacific EEZ has been put into marine monuments, such as Pacific Remote Islands, Marianas Trench, Rose Atoll and Papahanamuokuokea NMs. all 4 of them are significantly bigger than the Northeastern Canyons and Saamounts, the smallest-Rose Atoll- covers over 13000 sq miles, the largest covers almost 500000 sq miles. There is no question that the Antiquities Act alllows for marine monuments in the EEZ, as the law makes it clear that the lands to become monuments are on land that the government owns or controls.
The Chief Justice just told opponents how they need to argue against large Presidential NM designations. More to come....
Daniel, I wondered the same thing. This provides some clarification. https://www.reference.com/world-view/many-miles-shore-international-wate...
any ruling by this Supreme Court narrowly interpretting the presidents authority under the Antiquities Act would get reversed by Congress. the courts themselves held in Wyoming v Franke (1945) that Congress is the proper vehicle for complaints that a monument is too big. the courts have very limited judicial review of monument designations, including their size, out of separation of powers concerns. All the courts can do is determine whether the president properly designated the monument and whether he had reason to believe the area contained objects of significant historic or scentific importance. the smallest necessary stipulation does not mean it cant be large. a better reading of that line is ' the smallest area the president deems necessary'. Protecting areas like Bristol Bay in Alaska can require massive areas , like tens of millions of acres.
Further the history of monument designations show that large monuments were set aside almost from the start, with the Grand Canyon (808000 acres) Mount Olympus (640000 acres) and Katmai (1.1 million acres) being created within the first 2 years, 3 years and 12 years, respectively, after the Antiquities Act became law. the marine monument in question here is significantly smaller than its initially propsed size, the roughly 4900 sq miles is only 40% of the initial proposal. Bear Ears is another example, after the tribes proposed 1.9M acres and Public Lands initiative proposed 1.4M acres, Obama settled on 1.35M acres. What Roberts is propsing would undermine over a century of case law, and would invite blowback by Congress. Biden would certainly ask for that authority back and it would be likely that Congress would remove the limits imposed in Wyoming in 1950 and Alaska in 1980, freeing up those states for large monument designations, such as the Tongass in Alaska and the Bighorn Mountains in Wyoming. in other words,those opposed to monuments would see a long term loss out of a short term win.