`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`
`
`PATRICK FEHILY and DAVID T.
`MALLEY,
`
`
`Plaintiffs,
`
`v.
`
`
`
`
`JOSEPH R. BIDEN JR., in his
`official capacity as President of the
`United States; GINA RAIMONDO,
`in her official capacity as Secretary
`of the United States Department of
`Commerce; and DEB HAALAND, in
`her official capacity as Secretary of
`the United States Department of the
`Interior,
`
`
`No._________________________
`
`
`Complaint for Declaratory
`and Injunctive Relief
`
`
`
`
`
`Defendants.
`
`Jonathan Houghton, Pacific Legal Foundation, 3100 Clarendon
`
`Blvd., Suite 610, Arlington, VA 22201, for Plaintiffs.
`
`Plaintiffs Patrick Fehily and David T. Malley, by their attorney,
`
`Jonathan Houghton of Pacific Legal Foundation, allege the following:
`
`INTRODUCTION
`
`1.
`
`Plaintiffs Patrick Fehily and David T. Malley bring this action
`
`challenging the Presidential Proclamation of Defendant Joseph R. Biden,
`
` 1
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`Jr., designating the Northeast Canyons and Seamounts Marine National
`
`Monument under the Antiquities Act of 1906 (“Antiquities Act or Act”).
`
`See Presidential Proclamation No. 10287, 86 Fed. Reg. 57,349 (Oct. 8,
`
`2021).
`
`2.
`
`Plaintiffs Mr. Fehily and Mr. Malley are commercial
`
`fishermen who earn their living through the Atlantic Ocean’s fisheries.
`
`Both have invested heavily in commercial fishing vessels and permits
`
`that allow them to ply their trade in the waters of the Atlantic Ocean.
`
`3. Mr. Fehily started working on a fishing vessel in high school
`
`and has developed a deep appreciation for the fishing profession. After
`
`working in the industry for several years, he bought his own vessels and
`
`now owns four boats that currently fish for scallops, tuna, and swordfish.
`
`4. Mr. Malley has worked in the fishing industry for over 50
`
`years and recently bought his own fishing vessel to supplement his
`
`income during retirement. In doing so, he has spent hundreds of
`
`thousands of dollars preparing his vessel to be able to fish for tuna and
`
`swordfish in the Atlantic.
`
`5.
`
`But on October 8, 2021, the President issued Proclamation
`
`10287 designating the Northeast Canyons and Seamounts Marine
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` 2
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`National Monument (“Monument Designation”) under the Antiquities
`
`Act, closing off a vast area of the Atlantic Ocean to commercial fishing
`
`and threatening these fishermen’s way of life.
`
`6.
`
`Proclamation 10287 declares as a national monument
`
`approximately 5,000 square miles (3.2 million acres) of the Atlantic
`
`Ocean’s “Exclusive Economic Zone” (EEZ)—an ocean belt beyond the
`
`territorial seas between 12 and 200 nautical miles off the Nation’s coasts.
`
`7.
`
`Proclamation 10287 includes not only physical canyons and
`
`seamounts as part of the Monument Designation, but also cites
`
`“ecosystems” and “biodiversity” within them as protectable “objects of
`
`historic or scientific interest” under the Act.
`
`8.
`
`The Proclamation also bans or phases out commercial fishing
`
`within the Monument Designation’s waters—waters that have been an
`
`important commercial fishery for decades—preventing fishermen like
`
`Mr. Fehily and Mr. Malley from using the fishery’s resources within the
`
`designated area to practice their trade.
`
`9.
`
`Proclamation 10287 exceeds the President’s authority under
`
`the Antiquities Act and violates the Constitution’s Separation of Powers.
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`10.
`
`First, the Act delegates the President limited authority to
`
`designate national monuments on “land” owned or controlled by the
`
`Federal Government. 54 U.S.C. § 320301(a). But Proclamation 10287
`
`designates a national monument in an area of the Atlantic Ocean that is
`
`not on “land” under the Act. When Congress enacted the Antiquities Act
`
`in 1906, an ocean’s seabed or floor was not understood to be “land” as that
`
`term is used within the statute.
`
`11.
`
`Second, the Act also limits the President’s authority to declare
`
`national monuments on lands “owned or controlled by the Federal
`
`Government.” Id. Yet the portion of the Atlantic Ocean within the EEZ is
`
`not “owned or controlled by the Federal Government” under the Act’s
`
`ordinary meaning. The Federal Government enjoys limited authority to
`
`regulate within the EEZ, which does not constitute “control” under the
`
`Act.
`
`12.
`
`Third, the President may only designate as national
`
`monuments “historic landmarks, historic and prehistoric structures, and
`
`other objects of historic or scientific interest[.]” Id. But “ecosystems” and
`
`the “biodiversity” contained within them are not “objects” that he can
`
`designate as, or as part of, a national monument. The Act’s language,
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` 4
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`“objects of historic or scientific interest,” follows “historic landmarks” and
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`“historic and prehistoric structures.” This language’s ordinary meaning
`
`shows that Congress sought to protect discrete physical “objects of
`
`antiquity”—not amorphous ecosystems or the biodiversity within them.
`
`13.
`
`Fourth, the Act also delegates to the President authority to
`
`reserve “parcels of land” as part of a national monument but limits that
`
`authority by mandating that the reserved land “shall be confined to the
`
`smallest area compatible with the proper care and management of the
`
`objects to be protected.” Id. § 320301(b). Because “ecosystems” and the
`
`“biodiversity” contained within them are not “objects” protectable under
`
`the Antiquities Act, the Monument Designation’s area is not “confined to
`
`the smallest area compatible with the proper care and management of
`
`the objects to be protected.” Once these unprotectable objects are excised
`
`from the Monument Designation, the Proclamation’s designation of a
`
`national monument encapsulating vast areas of the Atlantic Ocean’s
`
`seabed or
`
`floor—outside the designated physical canyons and
`
`seamounts—is ultra vires. The Proclamation is also ultra vires because
`
`it offers conclusory factual justifications for the Monument Designation’s
`
`size based on the “ecosystems” to be protected.
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` 5
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`14.
`
`Finally, even if the Monument Designation is within the
`
`President’s authority, Congress did not delegate to the President the
`
`power to ban commercial fishing under the Antiquities Act. The Act’s
`
`delegation limits the President’s authority to declare a national
`
`monument and to reserve parcels of lands to be part of a monument; it
`
`does not give the President authority to make legislative rules for the
`
`“proper care and management” of a national monument. Congress
`
`charged the Secretary of Interior, Secretary of Agriculture, and Secretary
`
`of the Army—not the President—with making and publishing uniform
`
`regulations to implement the Act. 54 U.S.C. § 320303. Thus, by banning
`
`commercial fishing within the Monument Designation, the President has
`
`acted with no delegated authority from Congress and has made law in
`
`violation of the Constitution’s Separation of Powers.
`
`15.
`
`Plaintiffs Mr. Fehily and Mr. Malley thus seek declaratory
`
`and injunctive relief.
`
`JURISDICTION AND VENUE
`
`16.
`
`This Court has jurisdiction under 28 U.S.C. § 1331 (subject
`
`matter); § 2201 (declaratory relief); and § 2202 (injunctive relief).
`
` 6
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`17.
`
`This Court can award costs and attorneys’ fees under 28
`
`U.S.C. § 2412.
`
`18.
`
`Venue is proper in this Court under 28 U.S.C. § 1391(e)(1)
`
`because a substantial part of the events giving rise to the claim occurred
`
`within this judicial district, Plaintiff Patrick Fehily resides in this
`
`judicial district, and no real property affects the action.
`
`PARTIES
`
`Plaintiffs
`
`19.
`
`Plaintiff Patrick Fehily is a commercial fisherman who
`
`resides in the State of New Jersey and has plied his trade in the Atlantic
`
`Ocean’s waters for over a decade.
`
`20. He owns and operates permitted commercial fishing vessels
`
`that participate in the Atlantic Ocean fisheries including—before
`
`Proclamation 10287’s ban on commercial fishing—within the Monument
`
`Designation’s waters.
`
`21.
`
`Proclamation 10287’s ban on commercial fishing within these
`
`waters has limited, and will continue to limit, Mr. Fehily’s ability to
`
`participate in the fishery within the Monument Designation’s waters.
`
` 7
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`22.
`
`Plaintiff David T. Malley is a commercial fisherman who
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`resides in the Commonwealth of Massachusetts and has worked in the
`
`fishing industry for over 50 years.
`
`23. He owns and operates a commercial fishing vessel that would
`
`participate in the fishery within the Monument Designation’s waters but
`
`for Proclamation 10287’s ban on commercial fishing.
`
`24. Neither Plaintiff Mr. Fehily nor Plaintiff Mr. Malley have
`
`been a party to any lawsuit challenging a Presidential Proclamation
`
`issued under the Antiquities Act.
`
`25. Neither Plaintiff Mr. Fehily nor Plaintiff Mr. Malley have
`
`been a member of any organization that has challenged a Presidential
`
`Proclamation issued under the Antiquities Act.
`
`Defendants
`
`26. Defendant Joseph R. Biden Jr. is the President of the United
`
`States. He is sued solely in his official capacity. In that capacity, he issued
`
`Proclamation 10287 which is the federal action challenged in this suit.
`
`27. Defendant Gina Raimondo is the Secretary of the United
`
`States Department of Commerce and is charged with administering
`
`Proclamation 10287. She is sued solely in her official capacity.
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` 8
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`28. Defendant Deb Haaland is the Secretary of the United States
`
`Department of Interior and is charged with administering Proclamation
`
`10287. She is sued solely in her official capacity.
`
`LEGAL BACKGROUND
`
`The Antiquities Act
`
`29.
`
`Congress’s goal in enacting the Antiquities Act was to
`
`establish a method for protecting ancient and prehistoric Native
`
`American archeological sites on federal lands from theft and destruction.
`
`See Ronald F. Lee, The Antiquities Act, 1900-06, in The Story of the
`
`Antiquities
`
`Act
`
`(2019),
`
`https://www.nps.gov/articles/lee-story-
`
`antiquities.htm. Congress thus delegated the President limited authority
`
`to establish national monuments on certain lands owned or controlled by
`
`the Federal Government.
`
`30.
`
`The Antiquities Act’s text can be broken down, as relevant
`
`here, into a delegation with five “discernible limits” on the President’s
`
`power to declare monuments. See Mountain States Legal Found. v. Bush,
`
`306 F.3d 1132, 1136–37 (D.C. Cir. 2002) (finding that judicial review is
`
`available to ensure the President has not exceeded his authority under
`
` 9
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`
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`the Antiquities Act). Courts are “obligated to determine whether
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`statutory restrictions have been violated.” Id.
`
`31.
`
`First, these objects must be “situated on land” as that term is
`
`used under the Antiquities Act. 54 U.S.C. § 320301(a). Consistent with
`
`Congress’s purpose of protecting historic Native American artifacts, this
`
`phrase includes Native American lands and federal territories. For
`
`example, most of the Southwest in 1906, where many objects of antiquity
`
`were located, was Native American land or federal territory.
`
`32.
`
`Second, this “land” must be those “owned or controlled by the
`
`Federal Government.” Id. The Antiquities Act thus does not authorize
`
`the President to designate monuments on privately owned land. Nor may
`
`a monument be designated beyond the Nation’s territory, such as the
`
`high seas. Cf. Treasure Salvors, Inc. v. Unidentified Wrecked and
`
`Abandoned Sailing Vessel, 569 F.2d 330, 337–40 (5th Cir. 1978) (holding
`
`that the Antiquities Act does not apply to a shipwreck beyond the
`
`Nation’s territorial sea).
`
`33.
`
`Third, the President can declare as national monuments only
`
`“historic landmarks, historic and prehistoric structures, and other objects
`
`of historic or scientific interest.” 54 U.S.C. § 320301(a).
`
` 10
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`34.
`
`Fourth, the President can reserve public lands to protect a
`
`national monument. Id. § 320301(b). But that reservation must be
`
`“confined to the smallest area compatible with the proper care and
`
`management of the objects to be protected.” Id.
`
`35.
`
`Finally, the statute directs the agencies that manage a
`
`monument, not the President, to issue uniform rules and regulations to
`
`carry out the Act’s purposes. Id. § 320303. In other words, the Act limits
`
`the President’s authority to declare only what will be a national
`
`monument and what land is required for the proper care and
`
`management of the objects to be protected. See 54 U.S.C. § 320301(a)–(b).
`
`Congress authorized certain agency heads to determine how the objects
`
`are to be protected through regulations. See id. § 320303.
`
`Federal Authority Over
`the Exclusive Economic Zone (EEZ)
`
`In 1906, the United States’ territorial reach extended only
`
`36.
`
`three miles off the coast—the limits of the territorial sea. Beyond that
`
`was the high seas, which were international waters. Decades later, by
`
`proclamation, President Reagan asserted that the territorial sea extends
`
`up to 12 miles off the coast. See United States v. Alaska, 521 U.S. 1, 8–9
`
`(1997).
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`37.
`
`President Reagan also issued a proclamation establishing an
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`EEZ up to 200 miles from the Nation’s coasts, 48 Fed. Reg. 10,605
`
`(Mar. 10, 1983), but recognized that federal authority over this area is
`
`limited. See Statement on United States Oceans Policy, 1 Pub. Papers of
`
`Ronald Reagan at 379 (Mar. 10, 1983).
`
`38.
`
`Congress recognizes that the Federal Government has limited
`
`authority to regulate within the EEZ. For example, the Magnuson-
`
`Stevens Fishery Conservation and Management Act (commonly known
`
`as the Magnuson-Stevens Act), regulates fishing in the EEZ while
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`“maintain[ing] without change” the government’s limited authority over
`
`this zone “for all [other] purposes.” 16 U.S.C. § 1801(c)(1).
`
`39.
`
`Congress has also qualified the power delegated under the
`
`National Marine Sanctuaries Act by acknowledging the Federal
`
`Government’s limited authority beyond the territorial sea. See 16 U.S.C.
`
`§ 1435(a).
`
`40.
`
`International law, too, recognizes that Nations enjoy limited
`
`regulatory authority over the EEZ and do not have the level of
`
`sovereignty they enjoy within their territories. See Restatement (Third)
`
` 12
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`of Foreign Relations Law § 514 cmt. c (1987); see also The United Nations
`
`Convention on Law of the Sea art. 58 § 2.
`
`Federal Regulation of Ocean Fisheries
`
`41.
`
`Since 1906, Congress has exercised its limited authority to
`
`regulate the EEZ to protect the environment by adopting statutes
`
`specifically directed to this area of the ocean and establishing procedures
`
`to protect against excessive limitations on its sustainable and productive
`
`use.
`
`42.
`
`In 1972, Congress adopted the National Marine Sanctuaries
`
`Act, which aims to protect the EEZ’s sensitive areas when the United
`
`States has the power to do so. See 16 U.S.C. §§ 1431–1445b. This statute
`
`permits the Secretary of Commerce to designate marine sanctuaries
`
`within the EEZ based on twelve factors explicitly set out in the statute
`
`and only after providing notice to the public and consultation with state
`
`regulators. 16 U.S.C. §§ 1433–1434. If a marine sanctuary is established,
`
`the Regional Fishery Management Council established by the Magnuson-
`
`Stevens Act has the authority to regulate fishing as needed to protect the
`
`marine sanctuary. 16 U.S.C. § 1434(a)(5). The statute encourages all
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` 13
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`public and private uses of the resources in a marine sanctuary that are
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`compatible with the sanctuary’s protection.
`
`43.
`
`In 1976, Congress enacted the Magnuson-Stevens Act. 16
`
`U.S.C. § 1801, et seq. This is the primary law governing fisheries
`
`management in the EEZ. The statute is administered by eight regional
`
`fishery management councils, which must include representatives of
`
`federal and state agencies as well as the fishing industry. Under the
`
`Magnuson-Stevens Act, the regional councils, working with the National
`
`Marine Fisheries Service (which is within the Department of Commerce),
`
`prepare an annual stock assessment for each species commercially
`
`harvested in a fishery. If that assessment shows that a species is being
`
`overfished, the regional council sets an annual catch limit. Nearly 90% of
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`fisheries managed under the Magnuson-Stevens Act enjoy healthy,
`
`sustainable harvest levels below their annual catch limits.
`
`44.
`
`The regional councils also reduce fishing’s effects on
`
`ecosystems and incidental bycatch by regulating the gear used to fish.
`
`45. Unlike the Antiquities Act, the National Marine Sanctuaries
`
`Act refers to the “territorial sea . . . which is subject to the sovereignty of
`
`the United States” and “the [EEZ],” which is subject to “international
`
` 14
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`law,” rather than “lands owned or controlled” by the Federal
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`Government. See 16 U.S.C. § 1437(k). Nor does the Magnuson-Stevens
`
`Act refer to “lands owned or controlled” by the Federal Government.
`
`Rather, it refers to the “EEZ” throughout the statute. See 16 U.S.C.
`
`§ 1801, et seq. Together, these statutes tailor the degree of environmental
`
`protection to the limited authority the Federal Government enjoys over
`
`the EEZ.
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`FACTUAL ALLEGATIONS
`
`Georges Bank Fishery
`
`46.
`
`The Georges Bank is an elevated area of sea floor off the
`
`eastern seaboard that separates the Gulf of Maine from the Atlantic
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`Ocean.
`
`47.
`
`Like much of the continental shelf off the United States’ East
`
`Coast, the Georges Bank’s edge is pockmarked by underwater canyons.
`
`48.
`
`For centuries, the Georges Bank has supported lucrative
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`fisheries. The iconic fishing communities of New England and throughout
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`the East Coast sprang up because of the value of these fisheries.
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`49.
`
`Today, this area still supports significant fisheries for various
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`species of fish and shellfish. These fisheries provide an important source
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`of income and employment for fishermen throughout the northeast,
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`including Plaintiffs Mr. Fehily and Mr. Malley.
`
`50.
`
`Beyond Georges Bank lie several seamounts rising from the
`
`ocean floor.
`
`51. Deep-sea coral grows on both the canyons and seamounts.
`
`52.
`
`Fishermen are careful to avoid areas where coral is present
`
`because it severely damages their gear, costing the fishermen more than
`
`any benefit that could be obtained from fishing in the area.
`
`Existing Management of the Georges Bank
`
`53.
`
`The New England Fishery Management Council manages the
`
`Georges Bank fishery, along with the National Marine Fisheries Service,
`
`under the Magnuson-Stevens Act. Since that statute was enacted, the
`
`Council has worked with industry, state and federal government, and
`
`nongovernment organizations to improve sustainability of the fishery.
`
`These efforts have included extensive regulation by the National Marine
`
`Fisheries Service of the equipment and methods the fishermen use to
`
`catch fish, and on the number of fish that can be caught within the
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`fishery.
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`54.
`
`The Atlantic States Marine Fisheries Commission manages
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`lobster fishing in the Georges Bank under an interstate compact. It too
`
`has worked with
`
`industry, state and federal government, and
`
`nongovernmental organizations to improve sustainability. Working with
`
`several industry organizations, the Commission has retired traps to
`
`reduce pressures on lobster stocks. These efforts have been successful at
`
`producing a record abundance of lobster in Georges Bank and the Gulf of
`
`Maine.
`
`President Obama Establishes the Northeast
`Canyons and Seamounts Marine National Monument:
`Presidential Proclamation 9496
`Before leaving office in 2016, President Obama issued a
`
`55.
`
`proclamation declaring the first iteration of the Northeast Canyons and
`
`Seamounts Marine National Monument. See Presidential Proclamation
`
`No. 9496, 81 Fed. Reg. 65,161 (Sept. 15, 2016) (Ex. A).
`
`56.
`
`The proclamation described the monument as consisting of
`
`two units: a Canyons Unit that included three large and two small
`
`underwater canyons covering nearly 1,000 square miles (around 640,000
`
`acres) of ocean, and a Seamounts Unit that included four seamounts
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` 17
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`(underwater mountains) covering nearly 4,000 square miles (around 2.56
`
`million acres) of ocean. 81 Fed. Reg. at 65,161–62.
`
`57.
`
`The proclamation also asserted that the canyons and
`
`seamounts, and the natural resources and ecosystems in and around
`
`them, are “objects of historic and scientific interest” justifying the
`
`monument’s designation. 81 Fed. Reg. at 65,161.
`
`58.
`
`The three underwater canyons start at the edge of the
`
`continental shelf and drop thousands of meters to the ocean floor. The
`
`proclamation noted that deep-sea corals live in the canyon and form the
`
`foundation of a deep-sea ecosystem. The steep sides of the canyons
`
`concentrate phytoplankton, which draws fish, whales, and other ocean
`
`species. 81 Fed. Reg. at 65,161–62.
`
`59.
`
`The four seamounts are part of a larger seamount chain
`
`formed by extinct volcanoes. The seamounts also support deep-sea coral
`
`and several ecosystems. 81 Fed. Reg. at 65,162.
`
`60.
`
`The proclamation also asserted that the ecosystems in the
`
`huge area around the canyons and seamounts have drawn scientific
`
`interest. The ecosystem includes sharks, whales, turtles, and many
`
`highly migratory fish. 81 Fed. Reg. at 65,162–63.
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`61.
`
`The proclamation gave no factual justification for why this
`
`huge section of the ocean is “land owned or controlled” by the Federal
`
`Government. Instead, it simply asserted that protecting the marine
`
`environment is in the public interest. 81 Fed. Reg. at 65,163.
`
`62.
`
`The proclamation likewise failed to explain why this roughly
`
`5,000 square-mile (3.2 million acre) area is the smallest area compatible
`
`with protecting the monument. See 81 Fed. Reg. at 65,163.
`
`63. Nor did the proclamation provide any factual justification,
`
`other than conclusory statements, for how commercial fishing will
`
`degrade the canyons and seamounts or the ecosystems within the
`
`monument’s boundaries. See 81 Fed. Reg. at 65,162–63.
`
`64.
`
`The proclamation divided the authority to manage the
`
`monument between the Secretaries of Commerce and Interior. The
`
`Secretary of Commerce, through the National Oceanic and Atmospheric
`
`Administration (the parent agency of the National Marine Fisheries
`
`Service), was tasked with managing activities and species within the
`
`monument. The Secretary of Interior was tasked with managing the area
`
`under her department’s statutory authorities. Together, the Secretaries
`
` 19
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`were directed to prepare a joint management plan within three years and
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`promulgate regulations to protect the monument. 81 Fed. Reg. at 65,164.
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`65.
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`Recognizing that the Federal Government’s authority to
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`regulate this area is limited by international law, the proclamation forbid
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`the Secretaries from adopting and implementing any regulations which
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`would exceed the Federal Government’s authority—even if necessary to
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`protect the monument. In particular, the proclamation forbid the
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`Secretaries from restricting the ships that can pass through the area or
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`the planes that can fly over it or regulating any lawful uses of the high
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`seas. 81 Fed. Reg. at 65,164.
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`66.
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`The proclamation directed the Secretaries to specifically
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`prohibit, among other things, the taking or harvesting of any living or
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`nonliving resources within the monument and commercial fishing or the
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`possession of commercial fishing gear. 81 Fed. Reg. at 65,164–65.
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`67.
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`The proclamation also allowed the Secretaries, according to
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`their unconstrained discretion, to permit certain activities. These
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`included research and scientific exploration; recreational fishing;
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`commercial fishing with some gear types for red crab, Jonah crab, and
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`lobster, but only for the next seven years; other activities that have no
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`effect on any resource within the monument; and the construction and
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`maintenance of underwater cables. 81 Fed. Reg. at 65,165.
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`68.
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`Proclamation 9496’s prohibition against all fishing except for
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`lobster and red crab went into effect in November 2016.
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`President Trump Modifies the Northeast Canyons and
`Seamounts Marine National Monument and Lifts the
`Commercial Fishing Ban: Proclamation 10049
`Reversing course and giving fishermen some relief, in 2020
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`69.
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`President Trump issued a proclamation, “Modifying the Northeast
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`Canyons and Seamounts Marine National Monument,” rescinding the
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`commercial fishing ban within the 2016 proclamation. See Presidential
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`Proclamation No. 10049, 85 Fed. Reg. 35,793 (June 5, 2020) (Ex. B).
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`70.
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`Proclamation 10049 declared that some of the marine
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`resources identified in Proclamation 9496 are not unique to the
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`monument, are not of such scientific interest they merit additional
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`protection, and are protected by other federal laws regulating commercial
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`fishing. 85 Fed. Reg. at 35,794.
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`71.
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`Proclamation 10049 specifically noted that,
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`[A]ppropriately managed commercial fishing would not put the
`objects of scientific and historic interest that monument
`protects at risk. Indeed, Proclamation 9496 allows for
`recreational
`fishing and
`further acknowledges
`that
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`“[t]hroughout New England, the maritime trades, and
`especially fishing, have supported a vibrant way of life, with
`deep cultural roots and a strong connection to the health of the
`ocean and the bounty it provides.
`85 Fed. Reg. at 35,793.
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`72.
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`Proclamation 10049 also specifically found that the “highly
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`migratory” species are “not unique to the monument,” and that these
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`species are already regulated by a “host of other laws enacted after the
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`Antiquities Act . . . both within and outside the monument.” As evidence
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`supporting this assertion, Proclamation 10049 cited:
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`[T]he Endangered Species Act, 16 U.S.C. 1531 et seq., the
`Migratory Bird Treaty Act, 16 U.S.C. 703–712, the National
`Wildlife Refuge System Administration Act, 16 U.S.C. 668dd–
`668ee, the Refuge Recreation Act, 16 U.S.C. 460k et seq., the
`Marine Mammal Protection Act, 16 U.S.C. 1361 et seq., the
`Clean Water Act, 33 U.S.C. 1251 et seq., the Oil Pollution Act,
`33 U.S.C. 2701 et seq., the National Marine Sanctuaries Act,
`16 U.S.C. 1431 et seq., and Title I of the Marine Protection,
`Research and Sanctuaries Act (Ocean Dumping Act), 33
`U.S.C. 1401 et seq.
`85 Fed. Reg. 35,794.
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`President Biden Redesignates the Northeast Canyons and
`Seamounts Marine National Monument and Reinstitutes the
`Commercial Fishing Ban: Proclamation 10287
`A little over a year later, President Biden issued Proclamation
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`73.
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`10287 which redesignates the Northeast Canyons and Seamounts
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`Marine National Monument and reinstitutes the commercial fishing ban
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`within the Monument Designation. See Presidential Proclamation
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`No. 10287, 86 Fed. Reg. 57,349 (Oct. 8, 2021) (Ex. C).
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`74.
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`Proclamation 10287 largely incorporates Proclamation 9496,
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`including describing two units, the Canyons Unit and Seamounts Unit,
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`which together include approximately 5,000 square miles of Atlantic
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`Ocean. See 86 Fed. Reg. at 57,349.
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`75.
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`Like Proclamation 9496, Proclamation 10287 provides no
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`factual justification for why this huge section of the Atlantic Ocean is on
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`“land owned or controlled” by the Federal Government.
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`76.
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`Proclamation 10287 asserts that the canyons and seamounts,
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`and the “deep-sea, pelagic, and other marine ecosystems they support,
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`and the biodiversity they contain,” are “objects of historic and scientific
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`interest” justifying the Monument Designation and its area. 86 Fed. Reg.
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`at 57,349.
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`77.
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`Proclamation 10287 specifically cites the “need to protect the
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`canyons, seamounts, and the attendant deep-sea, pelagic, and other
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`marine ecosystems” as justification for the Monument Designation’s size
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`as the “smallest area compatible with the proper care and management
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`of the objects of historic and scientific interest designated for
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`protection[.]” 86 Fed. Reg. at 57,351.
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`78.
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`The Proclamation’s factual justifications, however, do not
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`include an analysis or any other supporting evidence, other than
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`conclusory statements, for why the Monument Designation’s boundaries
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`require approximately 5,000 square miles of Atlantic Ocean to protect the
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`canyons, seamounts, and ecosystems as part of the national monument.
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`79.
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`The Proclamation’s factual justifications also do not include
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`an analysis or any other supporting evidence, other than conclusory
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`statements, for how commercial fishing will degrade the canyons and
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`seamounts or the ecosystems within the Monument Designation’s
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`boundaries. See 86 Fed. Reg. at 57,351.
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`80.
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`Like Proclamation 9496, Proclamation 10287 divides the
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`authority to manage the monument between the Secretaries of
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`Commerce and Interior. The Secretary of Commerce, through the
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`National Marine Fisheries Service, is tasked with managing activities
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`and species within the monument. The Secretary of Interior is tasked
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`with managing the area under its statutory authorities. Together, the
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`Secretaries are directed to prepare a joint management plan by
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`September 15, 2023, and to promulgate regulations for the proper care
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`and management of the monument. 86 Fed. Reg. at 57,352.
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`81.
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`Proclamation 10287
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`reinstitutes
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`the prohibition on
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`commercial fishing within the Monument Designation’s waters. 86 Fed.
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`Reg. at 57,351–52.
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`82.
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`The Proclamation gives warning to “all unauthorized persons
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`not to appropriate, excavate, injure, destroy, or remove any feature of this
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`monument and not to locate or settle upon any lands thereof.” 86 Fed.
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`Reg. at 57,353.
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`83.
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`The Proclamation also includes a severability clause that
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`provides: “[i]f any provision of this proclamation, including its application
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`to a particular parcel of land, is held to be invalid, the remainder of this
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`proclamation and its application to other parcels of land shall not be
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`affected thereby.” 86 Fed. Reg. at 57,353.
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`84. On October 18, 2021, Proclamation 10287’s prohibition
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`against all fishing in the area except for lobster and red crab went into
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`effect.
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`Fig. 1: Map of Northeast Canyons and Seamounts Marine National
`Monument Credit: NOAA, https://www.fisheries.noaa.gov/new-
`england-mid-atlantic/habitat-conservation/northeast-canyons-and-
`seamounts-marine-national.
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`Case 3:22-cv-02120-GC-TJB Document 1 Filed 04/12/22 Page