March 05, 2021

No Monuments for Old Seamounts: Submerged Lands and the EEZ in Lobstermen’s Association

Zacary E. Wilson-Fetrow

The U.S. Supreme Court entered its February recess without deciding a petition for certiorari in Massachusetts Lobstermen’s Association v. Ross, 945 F.3d 535 (D.C. Cir. 2019), petition for cert. pending, No. 20-97 (filed July 27, 2020). The petition follows a D.C. Circuit opinion upholding the president’s authority to proclaim national monuments on submerged lands under the Antiquities Act of 1906. The petitioners—several associations representing shellfishing and fishing interests—had challenged the Northeast Canyons and Seamounts Marine National Monument’s creation in waters of the U.S. exclusive economic zone (EEZ). President Obama created the monument in Proclamation No. 9496 in 2016, and generally prohibited commercial fishing, precipitating the petitioners’ claimed harms. The petitioners argued at the D.C. Circuit that, by reserving submerged lands in the EEZ—which extends from 12 to 200 nautical miles off the coast—the president exceeded his authority under the Act.

Lobstermen’s Association is the most notable litigation concerning the Antiquities Act and submerged lands since 2005, and the only case examining the designation of monuments beyond the territorial seas since the EEZ’s creation in the early 1980s. Practitioners and natural resources interests alike should take heed of the pivotal precedent that would stand if certiorari were denied. This article examines the arguments and ruling in Lobstermen’s Association at the D.C. Circuit, first by reviewing presidential authority under the Antiquities Act and key precedent cited in the opinion. After discussing the D.C. Circuit opinion, the article reviews the petitioners’ question presented to the Supreme Court and considers the implications if the D.C. Circuit’s opinion stands.

Presidential Authority under the Antiquities Act

The Antiquities Act, 54 U.S.C. § 320301(a)-(b) (2018), provides that the president may declare “objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.” The authority delegated to the president by Congress gives the president wide discretion to declare national monuments for conservation interests. The president proclaims monuments unilaterally, requiring no public notice and comment or National Environmental Policy Act processes, as the president is not an agency. Thus, commentators have characterized monument proclamations as a tool to counterbalance congressional inaction on conservation issues. Sanjay Ranchod, The Clinton National Monuments: Protecting Ecosystems with the Antiquities Act, 25 Harv. Envtl. L. Rev. 535, 539–40 (2001).

Submerged Lands and the Continental Shelf

The Supreme Court first addressed the president’s power to proclaim waters as national monuments in a challenge to the creation of the Devils Hole detachment of Death Valley National Monument. President Truman proclaimed the detachment to protect the cavernous pool of the endangered Devils Hole pupfish, and the proclamation was upheld in Cappaert v. United States, 426 U.S. 128 (1976). The Supreme Court held that the language of the Act does give the president the authority to reserve a pool of water, as “[t]he pool in Devil’s Hole” is a protectable “object[] of historic or scientific interest.”

Application of the Antiquities Act to submerged first arose in a case regarding the Channel Islands National Monument. In 1949, President Truman expanded the monument to waters within one mile of the Channel Islands, to shelter endangered marine species. In United States v. California, 436 U.S. 32 (1978), the Supreme Court, citing to Cappaert, held that there was “no serious question” that the president had power under the Act “to reserve the submerged lands and waters.”

The Supreme Court again upheld the Antiquities Act’s application to submerged lands in Alaska v. United States, 545 U.S. 75 (2005). Similar to the California case, the Court upheld the special master’s conclusion that the federal government reserved submerged lands underlying the waters of Glacier Bay National Monument (by then Glacier Bay National Park). As the Court held, “[i]t is clear . . . that the Antiquities Act empowers the President to reserve submerged lands.”

The only challenge to the Act outside territorial waters was decided in Treasure Salvors, Inc. v. Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d 330 (5th Cir. 1978), before the EEZ’s creation. Though no monument had been proclaimed, the federal government attempted to assert title over a sunken vessel—the wreck of the Atocha­—on the basis of the Act. The 5th Circuit ruled that the vessel, lying on the outer continental shelf outside territorial waters of the United States, was not on lands “owned or controlled” by the federal government under the Act.

Lobstermen’s Association D.C. Circuit Arguments and Ruling

At the D.C. Circuit, the Appellants in Lobstermen’s Association argued that the declaration of Northeast Canyons and Seamounts Marine National Monument was invalid because the Antiquities Act applies only to land, “exclud[ing] the ocean.” The Appellants reasoned that the marine monument “is not land, as that term is ordinarily understood.” The appellants further argued that the federal government does not sufficiently control the EEZ’s submerged lands. They contended that the terms “owned” and “controlled” were intended “to have similar meanings,” and that the EEZ is not land where the federal government enjoys “plenary authority” like federal and tribal lands. Appellants’ Opening Brief at 22, 35–50.

In its opinion, the D.C. Circuit rejected both arguments. The court stated that the land argument “need not detain us long” as the Supreme Court had affirmed, in “on-point” precedent from Cappaert, California, and Alaska, the president’s authority to reserve submerged lands. The court also held that this precedent is not dicta because the president’s authority was a predicate of the decision in Alaska. Lobstermen’s Association, 945 F.3d at 540–41.

Going on, the court held that control and ownership “are distinct concepts” under the Act. Dominion over the EEZ was established by Proclamation No. 5030 under President Reagan, and Congress has since regulated activities in the EEZ. As the federal government exercises “exclusive” authority over the EEZ, it controls the EEZ for purposes of the Act. The court distinguished Treasure Salvors, Inc., noting that Treasure Salvors, Inc. predated President Reagan’s EEZ proclamation. Lobstermen’s Association, 945 F.3d at 542–44.

Petitioners’ Question Presented to the Supreme Court

The petitioners have sought to bring the question of federal government “control” in the EEZ, but not the submerged lands issue, before the Supreme Court. In their petition for certiorari, they present the question:

“Whether, in conflict with the holdings of the Fifth and Eleventh Circuits . . . , the Antiquities Act applies to ocean areas beyond United States’ sovereignty where the federal government has only limited regulatory authority.”

Petition for a Writ of Certiorari at i.

The 5th Circuit holding referenced in the question presented is Treasure Salvors, Inc.,. The 11th Circuit holding refers to Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel or Vessels, 636 F.3d 1338 (11th Cir. 2011), which did not concern the Antiquities Act but applied Treasure Salvors, Inc. to determine that federal admiralty jurisdiction is proper when litigating rights to found treasure. Petition for a Writ of Certiorari at ix, 2.

The petitioners argue that “[f]or 100 years,” the Antiquities Act was “understood” to apply only to where the federal government has “plenary power.” They further contend that, in 2006, the president “discover[ed]” greater power to proclaim national monuments “anywhere” that the federal government “has a significant amount of regulatory authority.” Petition for a Writ of Certiorari at i, 1–2, 5–8, 15–17, 28–29. The 2006 event refers to Proclamation No. 8031 by President W. Bush creating Northwestern Hawaiian Islands Marine National Monument that reserved “emergent and submerged lands” in the Northwestern Hawaiian Islands.

The respondents argued to the contrary that control “may be sufficient” even if “authority akin to ownership” is absent. They argue that the EEZ proclamation established the “government’s significant authority” by “sovereign rights and jurisdiction” in the EEZ, including to “protect[] the marine environment.” They further argue that monuments in the EEZ are not “a novel claim to power” because presidents have declared monuments “in the ocean” under “federal dominion and control” even before the EEZ. Brief for the Federal Respondents in Opposition at 3, 10–11, 15.

Potential Implications of Lobstermen’s Association

Denial of certiorari would leave unaffected this D.C. Circuit opinion that, for the first time, reconciled the Act’s application with respect to the EEZ’s exclusive authority over submerged lands. Over 2.8 billion acres of oceanic submerged lands lie within the EEZ. The ability under the Act to reserve submerged lands of the EEZ potentially allows for further significant expansion of such “marine national monuments.” This potential was realized, for example, with the Pacific Remote Islands Marine National Monument, expanded sixfold by Proclamation No. 9173 in 2014 to encompass the EEZ’s entire seaward limit throughout the U.S. Minor Outlying Islands.

Other marine national monuments include Marianas Trench, Virgin Islands Coral Reef, and Papahānaumokuākea, totaling over 750 million acres of submerged lands, much of which lies in the EEZ. These marine monuments, such as outlined in Proclamation No. 8337 creating Rose Atoll Marine National Monument, have been reserved for conservation causes, like the protection of endangered turtles and coral forests.

Granting certiorari would allow the Supreme Court to determine the Antiquities Act’s application throughout the EEZ on the merits. However, questions of mootness arose in June 2020, shortly before the filing of the petition, when President Trump issued Proclamation No. 10,049 to remove the commercial fishing prohibition. On January 20, 2021, President Biden issued Executive Order No. 13,990, instituting a 60-day review of the monument’s rollback. Petitioners maintain the justiciability of their claims, while requesting vacatur of the D.C. Circuit opinion if mootness is found. Petition for a Writ of Certiorari at 2, 37–39. If certiorari is granted, the ultimate opinion, of course, will rest with the nine justices of the Court.

    Zacary E. Wilson-Fetrow

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    Zacary E. Wilson-Fetrow is a juris doctor and Natural Resources & Environmental Law certificate candidate at the University of New Mexico School of Law, class of 2021.