Fishermen challenge fishing ban, Antiquities Act abuse

New York; April 2, 2024: Fishermen in New York and Vermont have filed a lawsuit against President Biden and the National Oceanic and Atmospheric Administration (NOAA) challenging a ban on commercial fishing in the Northeast Canyons and Seamounts Marine National Monument, as well as the unlawful creation of the monument itself.

“President Obama abused his authority when he created this monument in 2016, President Biden abused his authority when he reinstated it in 2021, and now NOAA has abused its authority with this fishing ban,” said Frank Garrison, an attorney at Pacific Legal Foundation. “We’ve now seen three Supreme Court Justices express interest in taking a case on presidential abuse of the Antiquities Act. This case is another example of the presidential abuse that has the Justices’ attention.”

The Antiquities Act was created in 1906 to protect Native American archaeological sites from looting. The Act also limits monuments to federally owned or controlled land and to “objects” on them. And a monument’s size must be limited to only what’s necessary for the care and management of legitimate, validly protected objects. But in recent decades, presidents have abused the Act to cordon off vast swaths of land and, in recent years, ocean from productive use.

The Northeast Canyons and Seamounts designation claims that the “objects” to be protected are “ecosystems” within the ocean and parts of the ocean floor — an absurd and clear violation of the law. The designation is made more absurd by the fact that the Antiquities Act was never intended to apply to oceans. Nor was the Act meant to allow the executive branch to ban commercial fishing through monument designations or without going through mandated procedures that require public input.

In a previous PLF case, Chief Justice John Roberts expressed concern that “[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.” Last week, Justices Brett Kavanaugh and Neil Gorsuch indicated that they would have granted certiorari in another case regarding abuse of the Antiquities Act.

The case is Green v. National Oceanic and Atmospheric Administration, filed in United States District Court for the Eastern District of New York. Bob Conrad and Frank Green are represented free-of-charge by Pacific Legal Foundation.