Mass. Lobstermen's Ass'n v. Ross

• Decision Date: 27 December 2019
• Docket Number: No. 18-5353,18-5353
• Citation: 945 F.3d 535
• Parties: MASSACHUSETTS LOBSTERMEN’S ASSOCIATION, et al., Appellants v. Wilbur ROSS, in his official capacity as Secretary of Department of Commerce, et al., Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

945 F.3d 535

MASSACHUSETTS LOBSTERMEN’S ASSOCIATION, et al., Appellants

v.Wilbur ROSS, in his official capacity as Secretary of Department of Commerce, et al., Appellees

No. 18-5353

United States Court of Appeals, District of Columbia Circuit.

Argued October 22, 2019

Decided December 27, 2019

Jonathan Wood, Sacramento, CA, argued the cause for appellants. With him on the briefs were Damien M. Schiff and Joshua P. Thompson, Sacramento, CA.

Avi Kupfer, Attorney, U.S. Department of Justice, argued the cause for federal appellees. With him on the brief were Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant, Deputy Assistant Attorney General, and Andrew C. Mergen and Robert J. Lundman, Attorneys.

Katherine Desormeau argued the cause for defendants-intervenors-appellees. With her on the brief were Ian Fein, Peter Shelley, Boston, MA, and Roger Fleming, Fort Lauderdale, FL.

David J. Berger, Palo Alto, CA, and Justin A. Cohen, New York, NY, were on the brief for amici curiae Academic Scientists in support of appellees.

Paul M. Thompson was on the brief for amici curiae Alison Rieser, et al. supporting defendant’s brief affirming the District Court.

Nicholas A. DiMascio, Samantha R. Caravello, and Lori Potter, Denver, CO, were on the brief for amicus curiae National Audubon Society in support of appellees and supporting affirmance.

Andrew J. Pincus, Washington, DC, was on the brief for amici curiae Senator Richard Blumenthal and Senator Brian Schatz in support of appellees and for affirmance of the District Court’s judgment.

Douglas W. Baruch, Washington, DC, was on the brief for amici curiae Ocean and Coastal Law Professors in support of defendants-appellees and defendants-intervenors-appellees and affirmation.

Before: Tatel and Millett, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Tatel, Circuit Judge:

Acting pursuant to the Antiquities Act, 54 U.S.C. §§ 320301 et seq., President Obama established the Northeast Canyons and Seamounts Marine National Monument to protect "distinct geological features" and "unique ecological resources" in the northern Atlantic Ocean. Proclamation No. 9496, 3 C.F.R. 262, 262 (2017) ("Monument Proclamation"). Several commercial-fishing associations challenged the creation of the Monument, arguing that the President exceeded his statutory authority. The district court disagreed and dismissed the complaint. With a minor alteration, we affirm.

I.

"[A] statute of historical importance for natural resource conservation and for archeological and historic preservation in the United States," the Antiquities Act grew out of a movement to protect the nation’s unique historical, archeological, and scientific heritage. Bruce Babbitt, Introduction , in The Story of the Antiquities Act (Ronald F. Lee, 2001). "[B]eg[inning] in 1879," "[a] whole generation of dedicated ... scholars, citizens, and members of Congress ... through [their] explorations, publications, exhibits, and other activities," id . (internal quotation marks omitted), pushed for the enactment of "national preservation legislation," culminating in 1906 with the passage of the Antiquities Act, Ronald F. Lee, The Antiquities Act, 1900–06 , in The Story of the Antiquities Act (Ronald F. Lee, 2001). To this day, the Act remains "a major part of the legal foundation for archeological, historic, and natural conservation and preservation in the United States." Babbitt, supra .

The Act provides that "[t]he President may, in the President’s discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments." 54 U.S.C. § 320301(a). The Act also authorizes the "President [to] reserve parcels of land as a part of the national monuments," so long as reservations are "confined to the smallest area compatible with the proper care and management of the objects to be protected." Id . § 320301(b).

Over the last century, Presidents have created a total of 158 national monuments, protecting a wide range of the nation’s historic and scientific resources. National Park Service, List of National Monuments , https://www.nps.gov/archeology/sites/antiquities/monumentslist.htm. For example, President Theodore Roosevelt established the Grand Canyon National Monument, reserving some 800,000 acres of land in the Arizona desert to protect "the greatest eroded canyon within the United States." Proclamation No. 794, 35 Stat. 2175, 2175 (Jan. 11, 1908). More recently, President Clinton established the Hanford Reach National Monument in Washington to protect "the largest remnant of the shrub-steppe ecosystem that once blanketed the Columbia River Basin." Proclamation No. 7319, 3 C.F.R. 102, 102 (2001). And President George W. Bush created the Northwestern Hawaiian Islands Marine National Monument—later renamed the Papahanaumokuakea Marine National Monument, Proclamation No. 8112, 3 C.F.R. 16, 16 (2008)—reserving nearly 140,000 square miles of ocean off the Hawaiian coast to protect the area’s "dynamic reef ecosystem, ... home to many species of coral, fish, birds, marine mammals, and other flora and fauna." Proclamation No. 8031, 3 C.F.R. 67, 67 (2007).

Continuing in that tradition, President Obama reserved roughly 5,000 square miles of ocean to create the Northeast Canyons and Seamounts Marine National Monument ("the Monument"). Monument Proclamation, 3 C.F.R. at 262. Lying some 130 miles southeast of Cape Cod, the Monument consists of two non-contiguous units. Id .; see infra Figure 1. The first covers three underwater canyons that "start at the edge of the geological continental shelf and drop from 200 meters to thousands of meters deep." Monument Proclamation, 3 C.F.R. at 262. The second covers four extinct undersea volcanoes—called seamounts—that rise "thousands of meters from the ocean floor." Id . "Because of the steep slopes of the canyons and seamounts, oceanographic currents that encounter them create ... upwelling" that "lift[s] nutrients ... from the deep to sunlit surface waters," fueling "an eruption of [plankton] that form[s] the base of the food chain." Id . at 262–63. "Together the geology, currents, and productivity create diverse and vibrant ecosystems" home to assorted marine flora and fauna, including rare species of deep-sea corals. Id . at 263. Accordingly, the Monument protects both "the canyons and seamounts themselves" as well as "the natural resources and ecosystems in and around them." Id . at 262.

Significantly for the issue before us, the Monument lies entirely in the U.S. Exclusive Economic Zone ("EEZ"), the belt of ocean between 12 and 200 nautical miles off the nation’s coasts over which the United States exercises dominion under international law. See Restatement (Third) of Foreign Relations Law § 511(d), cmt. b ("Restatement") (explaining that coastal states exercise sovereign rights over their exclusive economic zones). President Reagan created the U.S. EEZ in 1983 by issuing a proclamation that claimed for the United States

sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and non-living, of the seabed and subsoil and the superjacent waters and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds; and [ ] jurisdiction with regard to the establishment and use of artificial islands, and installations and structures having economic purposes, and the protection and preservation of the marine environment.

Proclamation No. 5030, 3 C.F.R. 22, 23 (1984) ("Reagan Proclamation"). "The United States ... exercise[s] these sovereign rights and jurisdiction in accordance with the rules of international law." Id .

Consistent with that authority and pursuant to several statutes, the federal government regulates a range of activity in the U.S. EEZ. The National Marine Sanctuaries Act, 16 U.S.C. §§ 1431 et seq. ("Sanctuaries Act"), authorizes the federal government to designate and manage marine sanctuaries in the "United States exclusive economic zone." Id . § 1437(k). The Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 et seq., empowers the federal government to "exercise[ ] sovereign rights for the purposes of exploring, exploiting, conserving, and managing all fish, within the exclusive economic zone." Id . § 1801(b)(1). And the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq., provides a framework for the federal government to exploit the seabed’s natural resources within the "outer Continental Shelf," defined to include the U.S. EEZ. Id . § 1331(a) ; see id . (defining the "outer Continental Shelf" as "all submerged lands" beyond the lands reserved to the States up to the edge of the United States’ "jurisdiction and control"); see also Dep’t of the Interior, Office of the Solicitor, Authority to Issue Outer Continental Shelf Mineral Leases in the Gorda Ridge Area , 92 Interior Dec. 459, 487 (May 30, 1985) (explaining that the statutory definition of "outer Continental Shelf" includes the submerged lands within the EEZ).

In this case, several commercial-fishing associations ("the Fishermen") challenged the Monument’s designation, arguing that the President "exceeded his statutory authority" under the Act because (1) the ocean is not "land" under the Antiquities Act; (2) the Monument is not compatible with the Sanctuaries Act; (3) the U.S. EEZ is not "controlled" by the federal government; and (4) the area reserved is not the "smallest area compatible" with management. Massachusetts Lobstermen’s Association v. Ross , 349 F. Supp. 3d 48, 51, 58 (D.D.C. 2018). Several conservation groups intervened to defend the Monument. Id . at 51.

The district court concluded that the President acted within his statutory authority in creating the Monument and dismissed the...