The Federalist: Courts need to stop presidents from calling oceans ‘national monuments’ to illegally put them off-limits

In Lewis Carroll’s classic “Through the Looking Glass,” Humpty Dumpty says to the befuddled protagonist, Alice, “When I use a word … it means just what I choose it to mean — neither more nor less.” Humpty Dumpty’s theory of linguistics has invaded landmark preservation, which is just one of the compelling reasons the Supreme Court must wade into the waters of historic preservation at sea.

Massachusetts Lobstermen’s Association v. Ross, a pending cert petition filed by my colleagues at Pacific Legal Foundation, asks the justices to resolve a curious circuit court split to clarify that the ocean is not land, up is not down, and words have meaning.

The case involves the Antiquities Act of 1906, which allows the president to proclaim landmarks and structures with historic and scientific interest as national monuments. The act has been used to protect the Grand Canyon before it became a national park, the Statue of Liberty, Aztec Ruins in New Mexico, Lincoln’s Cottage in the District of Columbia, and many other important sites throughout our country.

It limits these designations to objects and structures “situated on land owned or controlled by the Federal Government” (emphasis mine). Drawing inspiration from Humpty Dumpty, however, recent presidents have decided “land” can also mean the “ocean,” designating vast “ocean monuments.”

How Did We Get Here?

In 2016, President Barack Obama made one such designation: 3.2 million acres of the Atlantic Ocean south of Cape Cod, beyond our nation’s territorial waters. This “ocean monument” includes distant areas of the sea, some of which are 200 miles from our coast. Along with the designation came a ban on most commercial fishing in the area.

The problem began earlier, however, in 2006 when President George W. Bush designated the first “ocean monument”: the 89-million-acre Papahānaumokuākea Marine National Monument, located in the Northwestern Hawaiin Islands, which has since swelled significantly larger. On behalf of a group of commercial fishermen, the Pacific Legal Foundation challenged Obama’s designation of the Northeast Canyons and Seamounts Marine National Monument, arguing that the ordinary meaning of “land” does not include the “ocean.”

A recent empirical study by law professors James Phillips and John Yoo analyzes the use of phrases such as “situated on land” and “on land” during the 19th and early-20th centuries to determine their ordinary meaning when the Antiquities Act passed. A search of a database including 115,000 contemporary magazines, newspapers, and books turned up about a dozen instances of the phrase “situated on land” and more than 100 instances of “on land.” Neither was ever used to describe something found in the ocean nor the ocean floor itself.

What About the Other Law?

Linguistic torture isn’t the only problem with creating “ocean monuments.” There’s another federal law that specifically governs the protection of special marine areas that has been effectively nullified, along with its protections for states and other interested parties. The National Marine Sanctuaries Act of 1972 allows the designation and protection of areas, such as coral reefs and other unique habitats, but balances this with extensive procedural and substantive limits, such as requiring public notice and taking into account the effects on sustainable fishing.

Since presidents conveniently discovered that “land” can also mean “ocean,” this 1972 law has been rendered all but redundant. Indeed, only one marine sanctuary has been created since 2006. Meanwhile, there has been a dramatic increase in monument designation — more than 700 million acres between Obama and Bush.

Compare that with the designation of 72 million acres total for the first 100 years after passage of the Antiquities Act. It’s no surprise, though, since the flick of the president’s pen is quicker and easier than Congress’s lengthy administrative process before a marine sanctuary may be established.

Although courts have upheld expansive readings of the Antiquities Act on land, the law of two federal circuits prohibits the act’s use to create marine monuments on the high seas. More recently, however, the D.C. Court of Appeals for the D.C. Circuit sided with the novel interpretation of “land” and the degree of sovereign control necessary for national monument designation, even though it also renders the National Marine Sanctuaries Act superfluous. Now we’ve asked the Supreme Court to grant review and clarify that the president’s relatively newfound authority under the Antiquities Act does not hold.

Protecting marine ecosystems is a commendable goal, but the president must follow the proper statutory process. He may not circumvent the deliberative process Congress outlined in the National Marine Sanctuaries Act by redefining the terms of another law or twisting ordinary language in absurd ways to suit political or personal ends.

Until the Supreme Court stops it, however, Humpty Dumpty’s theory of linguistics might carry the day, and until that’s resolved, presidents should pay “land” for working overtime to support a tenfold increase in national monuments, mostly in the ocean. After all, Humpty Dumpy told Alice, “When I make a word do a lot of work … I always pay it extra.”

This op-ed was originally published by The Federalist on December 17, 2020.