In 2021, President Biden issued a presidential proclamation that banned commercial fishing across millions of acres in the fertile Georges Bank region of the North Atlantic Ocean, a devastating blow to New England’s iconic fishing industry.
Bob Conrad and Frank Green have spent their entire adult lives earning their living from the water, logging more than 90 combined years fishing the Northeast Atlantic. Bob, from Vermont, trawls for whiting, squid, butterfish, and mackerel. Frank, a New Yorker, catches golden tilefish. Both frequented Georges Bank before the sweeping designation of 3.2 million acres of ocean floor as the Northeast Canyons and Seamounts Marine National Monument and the commercial fishing ban within the designation.
Although these fishermen long have adhered to environmental regulations like the Endangered Species Act, Magnuson-Stevens Act, and Marine Sanctuaries Act, Biden circumvented the cooperative processes designed to balance conservation and fishing interests and invoked the Antiquities Act.
Congress created the Act to safeguard Native American archaeological sites from looting, not to protect entire ocean “ecosystems” and cordon off vast expanses of the sea. But presidents have abused the act for decades, declaring immense swaths of land and ocean as protected “monuments.”
Monument designations come with harsh penalties. Violating the monument proclamation risks criminal fines and up to 90 days in jail. And a newly created National Oceanic and Atmospheric Administration regulation adds additional crushing civil fines of up to $100,000 per day, boat liens, and revoked fishing permits.
If the president can designate “ecosystems” and millions of acres of the ocean floor as “a national monument,” there is no meaningful limit on what the president can designate under the Antiquities Act. Nor is there any meaningful limit on how much “land” he can rope off from productive use.
Courts have typically been deferential to the president in challenges to national monument designations. But when the Supreme Court declined to hear a previous PLF case, Massachusetts Lobstermen’s Association v. Raimondo, Chief Justice John Roberts expressed concern over the president’s ever-expanding power under the Act: “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.” More recently, Justices Brett Kavanaugh and Neil Gorsuch indicated that they would have granted certiorari in a similar case. There is clearly interest on the Court to address the Antiquities Act.
Represented by Pacific Legal Foundation at no charge, Frank and Bob are fighting back with a federal lawsuit to rein in the president’s illegal rulemaking, restore the separation of powers, and vindicate the rights of all Americans to earn an honest living.
What’s At Stake?
- The president violates the Constitution’s separation of powers when he ignores clear laws to make policy he wants. 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 set aside lands for national monuments, but Congress strictly limited monuments’ size and scope. Moreover, the Act was never intended to apply to the ocean and certainly doesn’t grant presidential powers to ban commercial fishing in a wide swath of ocean.
