Fishing on an ocean ‘antiquity’

“I know not all that may be coming, but be it what it will, I’ll go to it laughing.”  

—Stubb, the second mate, in Herman Melville’s Moby Dick 

In New Bedford, Massachusetts, sits an old chapel: the Seamen’s Bethel, built in 1832 for sailors to visit and pray before heading out to sea. Herman Melville visited the Bethel before going on a whaling trip; he featured it in Moby Dick, calling it “a Whaleman’s Chapel” filled with “moody fishermen.”  

Written on the walls of the Seamen’s Bethel are the names of whalers and fishermen who have been killed at sea. Also hanging in the Bethel is a life ring from the Michelle and Annette, a New Bedford fishing boat that sank during a storm.  

Massachusetts fisherman Jimmy Kearney was on that boat. He was fishing off Point Pleasant, New Jersey, when a winter storm came in.  

“It was 70-mile-an-hour winds, 30-foot seas,” Jimmy remembers. “And we started to take on water.”  

The captain of the Michelle and Annette was calm—too calm. “He was talking to the Coast Guard, saying, ‘Yeah, we got a little bit of water,’” Jimmy says. “I was like, ‘You better put a little more excitement in your voice, buddy, because we’re definitely going down. And they’re not going to come get us.’” 

Another boat eventually found and rescued the fishermen as the Michelle and Annette sank. Afterward, the life ring for the sunken boat washed up on a beach in France. It was sent to the Seamen’s Bethel, another stark reminder of the dangers of life at sea. 

The Bethel is a historic landmark: It’s included on the National Register of Historic Places, a list managed by the National Park Service. Some sites on that list are federally protected because they were designated National Monuments by a U.S. president under the Antiquities Act. 

The Seamen’s Bethel is not considered a National Monument. But bizarrely, President Barack Obama did declare 3.2 million nearby acres of ocean to be a National Monument—preventing fishermen from fishing there. 

That’s just one of many indignities dealt by the government to fishermen like Jimmy Kearney as they work to make a hard living at sea. 

An ocean ‘antiquity’ 

The Antiquities Act, passed in 1906, allows the president to unilaterally designate land as National Monuments “with the stroke of a pen,” as PLF’s strategic research team put it in a recent report. In 2016, President Obama created the Northeast Canyons and Seamounts Marine National Monument, a huge chunk of ocean off the coast of New England where commercial fishermen are now banned from fishing.  

But Congress never intended for the Antiquities Act to cut off access to millions of acres of ocean. 

“Which of the following is not like the others,” Supreme Court Chief Justice John Roberts wrote after the Court declined a Pacific Legal Foundation case representing Massachusetts lobstermen: 

(a) a monument, (b) an antiquity (defined as a “relic or monument of ancient times,” Webster’s International Dictionary of the English Language), or (c) 5,000 square miles of land beneath the ocean? If you answered (c), you are not only correct but also a speaker of ordinary English. In this case, however, the Government has relied on the Antiquities Act of 1906 to designate an area of submerged land about the size of Connecticut as a monument—the Northeast Canyons and Seamounts Marine National Monument. 

The Antiquities Act “has been transformed into a power without any discernable limit to set aside vast and amorphous expanses of terrain above and below the sea,” the Chief Justice concluded.  

Why does it matter? Because the government is making life harder for commercial fishermen who work an already-grueling job. 

The life of a fisherman 

If he were allowed, Jimmy would fish along the edges of President Obama’s ocean “monument.” Jimmy has fished up to 80 fathoms deep before. “And there were a bunch of scallops there,” he says.  

A scalloping trip will take up to fifteen days. The crew works eight hours on, eight hours off. The government puts a cap on how many pounds of scallops each boat can bring in, so they’re constantly weighing their haul. Sometimes they’re forced to bring a federal observer on board (the subject of Loper Bright Enterprises v. Raimondo, soon to be decided at the Supreme Court). 

It’s a dangerous job. In addition to going down on the Michelle and Annette, Jimmy once sank on a fishing boat at Cape Cod Bay, where there are sharks.  

“That was scariest,” he says, “because we were floating. I thought I was going to die in my survival suit.” Robbie, Jimmy’s captain, couldn’t find the boat’s flare gun; he figured he’d dropped it when the boat sank. It was the Fourth of July. “We were watching the fireworks from our survival suits,” Jimmy says. A boat came nearby, but the people onboard mistook Jimmy and the other fishermen for divers. “I was yelling for all I had,” Jimmy remembers. 

They floated like that for ten hours. Finally, a boat came and pulled the fishermen on board. When Robbie took his survival suit off, the flare gun fell out—in the commotion, he’d stuffed it into his oilers. “I almost punched him right in the nose,” Jimmy says. 

When you’re a fisherman, even docking is dangerous: People can fall in between the boats and slip into water so cold you can’t move. Fishermen have died that way, moving across docked boats at wintertime.  

It’s always been a treacherous life; the names on the wall of the Seamen’s Bethel attest to that. Scallop fishing is particularly dangerous: A CDC study of commercial fishing fatalities between 2000 and 2009 found scallop fishing had the highest of all fishery fatalities. 

Jimmy comes from a fishing family. When his father went out on his first commercial fishing trip, he hated it. “It was the hardest work he’d ever done in his life,” Jimmy says. “He said, ‘Never will I do this again.’” Then the captain gave Jimmy’s father his check. “And he looked at the check,” Jimmy recounts, “and he says, ‘I’ll see you Monday.’” 

Now government restrictions are shrinking where fishermen can go and how much they earn. It’s not just the Antiquities Act abuse; there are additional sections of ocean closed off as habitat areas for certain fish. Also, the government put a cap on scalloping licenses and a moratorium on issuing new ones. A scalloping boat used to cost $350,000. Now, to get a license, you have to buy a boat with an existing scalloping license. “That’ll cost you $6-7 million,” Jimmy says. He doesn’t own the boat that he captains now.  

Still, as captain, he takes responsibility for everyone on his boat. At sea, anything can happen. Once a fishing boat hauled up a torpedo by accident. It detonated, killing most of the crew. 

But on a calm day, Jimmy says, the sea is “like a mirror, you know what I mean?”  

Despite the danger, and the headaches from the government, Jimmy believes fishing is a good life. In his family, when a fisherman dies on land, you spread the ashes at sea. That’s where the person spent a good part of his life, Jimmy explains. 

“And it’s nice,” he adds, “because I get to spend time with them every time I’m out there.” 

PLF represents several fishermen in a lawsuit challenging the illegal commercial fishing ban in the 3.2-million-acre ocean “monument.”