Active: Federal lawsuit filed to restore separation of powers, economic livelihoods

To hard-working commercial fishermen, the Georges Bank area of the North Atlantic Ocean is an economic lifeline. Its bountiful fisheries have for centuries supported a wide variety of fish and shellfish, giving rise to New England’s iconic fishing communities and an important industry throughout the Northeast.

To President Biden, however, Georges Bank is another opportunity to grant favors to environmental groups, and with the stroke of a pen, he banned commercial fishing there.

Pat Fehily grew up on the Jersey Shore and has been fishing these waters since high school, when he worked on a lobster boat. A few years later, he bought his own lobster boat. He continued to expand his fishing business, and today, he is a dedicated fishing entrepreneur with a fleet of three scallop boats and one longline fishing boat for swordfish and tuna.

Pat wants to see his industry thrive in the decades to come. He considers Biden’s monument proclamation as a direct threat to both the fishing industry and the beloved seaside communities it supports.

Pat recognizes that the health of the fishing industry depends on the well-being of marine ecosystems and their management, and he cares deeply about responsible fishing practices and care of natural resources.

He and his fellow fishermen have long worked under a sweep of government regulation, including the Endangered Species Act, designed to protect marine life, and the Magnuson Stevens Fisheries Act, to safeguard against overfishing. Then there’s the Marine Sanctuaries Act, a 1972 law that empowers the National Oceanic and Atmospheric Administration to set aside areas of the aquatic U.S. in a way that allows multiple uses—including fishing—while comprehensively managing their conservation.

These laws have produced decades of cooperative efforts among public-private councils to regulate equipment and fishing methods, the areas available for fishing, and catch limits to ensure the area’s environmental sustainability.

Nevertheless, in October 2021, President Biden leaned on yet another law—the Antiquities Act—to declare 5,000 square miles (3.2 million acres) of ocean as the Northeast Canyons and Seamounts Marine National Monument.

Congress passed the Antiquities Act in 1906 with a narrow scope for the president to quickly protect Native American Indian archeological sites from looting. The Act limits monuments to federally owned or controlled land that are historic landmarks, prehistoric structures, or other objects of historic or scientific interest. The statute also limits a monument’s size to only what’s necessary for care and management of the protected objects.

President Biden’s proclamation completely ignores these limitations. The monument’s millions of acres and submerged land are not on federal lands. The designation also reels in “ecosystems” and “biodiversity” which are not protected objects under the Act. Finally, the proclamation bans commercial fishing within those waters, a legislative power never delegated by Congress to the president.

A total lack of lawful justification for the designation’s sheer size and scope didn’t deter the president. After all, he merely reestablished and modified the same declaration made by President Obama in 2016. That declaration devastated fishing livelihoods and prompted a lawsuit in which PLF represented several fishing associations challenging Obama’s proclamation as illegal overreach under the Antiquities Act.

The Supreme Court declined to hear the case, despite concerns raised by Chief Justice Roberts over the president’s ever-expanding power under the Act. During—and independent of—the litigation, the Trump administration repealed the commercial fishing ban portion of Obama’s designation.

Now that Biden has resuscitated powers that far exceed what the Antiquities Act was ever meant to do, Pat Fehily and Tim Malley, a 50-year fishing veteran and vessel owner, are fighting back. Represented at no charge by PLF, they’re challenging this renewed violation of the Constitution’s separation of powers and threat to the right of commercial fishermen to earn an honest living.

What’s At Stake?

  • The president violates the Constitution’s separation of powers when he ignores clear laws to achieve his own ends. Presidential action that goes beyond laws passed by Congress undermines the democratic process, and thus requires limitation by the courts.
  • The Antiquities Act authorizes the president to establish national monuments, but Congress put limits on the size and scope of those monuments and did not give the president the authority to ban commercial fishing in a wide swath of ocean.

Case Timeline

April 12, 2022
Complaint
United States District Court for the District of New Jersey