Mining and drilling for oil are already banned in the Northeast Canyons and Seamounts Marine National Monument, established by former president Barack Obama in 2016 as the first marine monument in the Atlantic Ocean, 150 miles off the coast of Cape Cod. Within five years, too, all commercial fishing will be phased out – or, at least that was the plan.
A federal judge is now weighing the fate of those protections in a lawsuit originally filed in March 2017 by a coalition of New England fishing groups – and it has led to a rare case of President Donald Trump defending his predecessor’s authority.
At stake in the lawsuit is more than just this one decision, but also the president’s power under the federal Antiquities Act to create a marine national monument. In the last decade, the 1906 law has served as a powerful tool for ocean conservation under both George W. Bush and Obama at a time when nations have been working to achieve the United Nations’ goal of protecting 10 percent of the global ocean by 2020.
The plaintiffs – including the Massachusetts Lobstermen’s Association, the Long Island Commercial Fishing Association and the Garden State Seafood Association – argue that the law, enacted by Theodore Roosevelt, allows the president to create monuments on land only. These groups are being represented by the Pacific Legal Foundation, an advocate of limited government and private property rights. In a defense of the president’s broad legal authority rather than the specifics of the monument’s fishing ban, the Trump administration filed a motion to dismiss the lawsuit in April.
“If the fishermen win this lawsuit, it could conceivably amount to the legal opinion that all the Pacific and Atlantic monuments established under the Antiquities Act were created illegally,” said Peter Shelley, a senior counsel with the Conservation Law Foundation – an intervenor in the suit, along with the Natural Resources Defense Council and Earthjustice.
However, even if the lawsuit is dismissed by a judge, environmentalists still worry that the Trump administration will whittle away at the monument’s protections and their best chance to study a unique marine ecosystem functioning in the absence of almost any human activity. In December, the United States Interior Secretary Ryan Zinke recommended “allowing the regional fishery management council to make fishery management decisions” in the Northeast Canyons and Seamounts monument – a statement both fisheries representatives and conservationists have interpreted as a call for opening the area to fishing (the same recommendation was made for management of the Rose Atoll and Pacific Remote Islands Marine National Monuments in the Pacific Ocean.)
Trump has not yet formally responded to these recommendations, but they have ecologists and conservationists on edge. “You’d have the fox guarding the henhouse,” said Scott Kraus, a scientist and marine mammal specialist with the New England Aquarium in Boston. Allowing the fishery management councils to manage underwater preserves “would make the entire Antiquities Act a sham,” he added.
Peter Auster, a University of Connecticut biologist and research scientist for the Mystic Aquarium, stresses the ecological and scientific value of the Northeast Canyons and Seamounts monument and the need to guarantee its protection. “There is potentially nowhere else along the Atlantic coast that we can look at to study the ocean ecosystem in the absence of fishing and these other deep-sea industries,” Auster said.
He calls the underwater landscape of the new monument “an otherworldly place” populated by ancient deep-sea corals, some of which may be hundreds of years old and can be damaged by crab and lobster traps and fishing gear. Auster said several major canyons in the monument act as funnels that send nutrient-rich water upward, nourishing the corals and sponges that cling to the sides of the canyons while providing food to small fish and squids that gather here in schools.
Marine mammals of many kinds come to the monument area, which includes three deep underwater canyons and four underwater mountains – or seamounts – to feed on these forage species, and the region’s protections create one of the largest areas in American waters free of entanglement risks to marine mammals. The New England Aquarium’s recent aerial survey identified four sperm whales, 57 pilot whales, 13 rare Sowerby’s beaked whales and 44 Risso’s dolphins, among other cetaceans, in just several hours.
The plaintiffs say the protections, however, go too far. The Long Island Commercial Fishing Association has estimated that fluke and whiting fishermen will lose $1.6 million a year from the closure, according to Jonathan Wood, a lawyer with the Pacific Legal Foundation. The Massachusetts Lobstermen’s Association “has approximately 250 members who will be adversely affected, directly or indirectly, by the monument,” according to the lawsuit. The Atlantic Offshore Lobstermen’s Association also estimates the impact on the industry will be $3 million annually and warns that the monument’s restrictions will displace fishing pressure to less robust stocks of lobster.
Because deep-sea corals can also damage fishing gear, fishers usually work diligently to avoid operating over known coral gardens anyway, Wood said. More broadly, he said fishing interests worry that more and more of the ocean is being closed to commercial fishing through the Antiquities Act. (The Northeast Canyons and Seamounts Marine Monument itself is only 0.11 percent of the nation’s exclusive economic zone, the monument’s advocates note).
In the last decade, beginning under George W. Bush, a series of moves towards large marine protections in the U.S. have come under the Antiquities Act, which until then had been used solely to create land-based monuments. Previously, noted Wood, marine protections had come under the National Marine Sanctuaries Act, which requires a formal public review process that he says is largely absent in the application of the Act.
“Starting in 2006, presidents began asserting the power to designate ocean monuments beyond the territorial sea,” Wood said. “Since then, they’ve designated roughly 700 million acres, almost all of it ocean.” For example, the Papahanaumokuakea Marine National Monument, created under the Antiquities Act by Bush and expanded under Obama, covers almost 582,578 square miles, or 372 million acres – about twice the area of Texas and today the largest contiguous fully protected conservation area in the U.S.
The Act gives the president the authority to designate “historic landmarks, historic and prehistoric structures and other objects of historic or scientific interest that are situated on land owned or controlled by the federal government.”
Though it is open to interpretation, environmentalists are confident the law applies to the ocean as readily as it does to land. Kraus pointed out that oil and wind energy companies have leased undersea lands and ocean acreage from the federal government for years – what he says sets a clear precedent for treating federal ocean waters as “land.”
Still, the environmentalists are concerned that a legal victory for the plaintiffs could cause a landslide of reverse orders that reopen established monuments to fishing, oil drilling and other industrial activity.
They also argue that the commercial value of the region to the fishing industry is being overstated. Shelley, at the Conservation Law Foundation, said only a tiny fraction of the American Atlantic lobster fishery’s value comes from inside the monument area. Having closely analyzed the catch data, he says American fishermen caught $438 million worth of lobster annually from 2005 to 2014 in Atlantic waters, but just $38,000 of the catch came from within the monument’s 3.14 million acres. “The fishing industry has made wildly exaggerated claims of tens of millions of dollars that will be lost,” Shelley said.
But Eric Reid, general manager of Seafreeze Shoreside, a Rhode Island seafood processor and a member of the Rhode Island Fishermen’s Alliance, said the potential damage caused by the monument is not being exaggerated. He said that the catch data that would illustrate the value of the area is missing or was never properly recorded to begin with. Kraus, however, said commercial fishers have resisted proposals to keep tracking devices on their vessels.
Conservation groups believe they will be defending the monument through the coming years, no matter what, said Kate Desormeau, an attorney with the Natural Resources Defense Council, in an email. Just because Trump is defending the former president’s legal authority to create the monument, she said, “doesn’t mean the Trump administration won’t turn around and try to abolish the monument at some point, or open it up to commercial fishing or other extractive uses.”
Kraus, at the New England Aquarium, said that “at the end of the day, the biggest threat to the monument is the Trump administration.”
“They want to turn management of the monument over to the New England Fishery Management Council,” he said. “That would be like turning over Acadia National Park [in Maine] to the logging industry.”