01/24/2020 - Regulatory Tracker

Marine National Monuments & Marine Sanctuaries

by EELP Staff

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Why it Matters

Our marine national monuments and marine sanctuaries protect over 1 million square miles of ocean ecosystems, preserve cultural resources, and provide opportunities for recreation and tourism. They are under threat of being reduced in size or opened to commercial fishing and other activities.

For a breakdown of the Trump Administration’s actions by monument/sanctuary, see our specific pages on Marine National Monuments and Marine Sanctuaries.

Current Status

At the end of 2019, the DC Circuit upheld former President Obama’s creation of the Northeast Canyons and Seamounts Monument. Plaintiffs in that case (Massachusetts Lobstermen’s Association v. Ross) have sought certiorari from the Supreme Court.

On June 5, 2020, former President Trump signed a proclamation lifting the moratorium on commercial fishing in the monument, prompting a lawsuit from environmental groups. On Jan. 20, 2020, President Biden issued an Executive Order establishing a policy to “restore and expand our national treasures and monuments,” and specifically recommending the Secretary of the Interior to review President Trump’s proclamation, and issue a report summarizing the findings of that review within 60 days.

History

June 8, 1906 President Theodore Roosevelt signs the Antiquity Act. This revolutionary act authorizes the president to protect public lands without having to go through Congress.

Oct. 23, 1972 President Nixon signs the National Marine Sanctuaries Act.

June 15, 2006 President Bush establishes the first national marine monument (later renamed Papahānaumokuākea Marine National Monument).

Sept. 15, 2016 President Obama establishes the Northeast Canyons and Seamounts Marine National Monument in the Atlantic Ocean.

Trump Era

Feb. 6, 2017 An environmental law firm submits a Freedom of Information Act (FOIA) request to the Department of Justice (DOJ) seeking “‘final legal advice’ relating to the president’s authority to designate, withdraw, expand, or modify national monuments under the Antiquities Act.”

March 7, 2017 coalition of fishing groups files a lawsuit in the DC District Court over the Northeast Canyons and Seamounts monument designation, calling it unlawful under the Antiquities Act, and seeks an injunction to preclude enforcement of the fishing ban. The lawsuit is stayed after the April 2017 Executive Orders on monuments and energy development are issued. Mass. Lobstermen’s Association v. Ross, No. 17-406 (D.D.C.).

March 15, 2018 The DC District lifts the stay on the Northeast Canyons and Seamounts lawsuit, as requested by the plaintiffs, and agreed to by federal attorneys.

April 26, 2017 President Trump signs Executive Order 13792, directing the Secretary of the Interior to review all National Monuments (including Marine National Monuments) designated or expanded since January 1, 1996 under the Antiquities Act that are at least 100,000 acres or were made “without adequate public outreach and coordination.”

April 28, 2017 The president signs Executive Order 13795 ordering the Secretary of Commerce to review all Marine National Monuments and Marine Sanctuaries designated or expanded since 2007, to assess “the opportunity costs associated with potential energy and mineral exploration and production from the Outer Continental Shelf, in addition to any impacts on production in the adjacent regions.”

June 26, 2017 National Oceanic and Atmospheric Administration (NOAA), ordered by the Secretary of Commerce, asks for public comment on eleven marine national monuments and marine national sanctuaries it is reviewing pursuant to Executive Order 13795. Comments are open through July 26, 2017. NOAA later extends the comment period to August 14, 2017. Nearly 100,000 comments are submitted.

Aug. 24, 2017 Secretary Zinke submits his final recommendations for closing or shrinking monuments to the White House. The report is not made public, prompting environmental groups to later submit multiple FOIA requests for the report and related documents.

Oct. 12, 2017 An environmental law firm sues DOJ for failing to respond to its FOIA request from February 6, 2017.

Oct. 25, 2017 While recommendations on the marine sanctuaries are due on this date, the Department of Commerce says the report is undergoing review, but has not been released publicly.

Nov. 2, 2017 Environmental groups sue DOI for failure to respond to multiple FOIA requests (dated from March 3, 2017 – September 1, 2017), including one related to Zinke’s August 24, 2017 report.

Dec. 5, 2017 Interior Secretary Zinke’s report to President Trump on monument and sanctuary recommendations, which was issued in August 2017, is finally made public. His recommendations include changing the boundaries and opening to commercial fishing two marine monuments (Rose Atoll, Pacific Remote Islands), and opening Northeast Canyons and Seamounts to fishing as well.

The following Marine Sanctuaries were listed for review under EO 13795 but were not listed in the final recommendations:

  • American Samoa, Pacific Ocean
  • Cordell Bank, Pacific Ocean
  • Channel Islands, Pacific Ocean
  • Greater Farallones, Pacific Ocean
  • Monterey Bay, Pacific Ocean
  • Thunder Bay, Great Lakes

The following Marine National Monuments were listed for review under EO 13792 and 13795 but were not listed in the final recommendations:

  • Marianas Trench, Pacific Ocean
  • Papahānaumokukea, Pacific Ocean

April 16, 2018 The Department of Justice moves to dismiss the fishing groups’ lawsuit challenging the Northeast Canyons and Seamounts. DOJ argues that “Congress has granted the President broad discretion to designate a monument on lands owned or controlled by the federal government, and such decision-making is not generally subject to judicial review.” Mass. Lobstermen’s Association v. Ross, No. 17-406 (D.D.C.).

June 2018 It is reported that NOAA is considering opening marine national monuments to commercial fishing as early as September 2018. The proposal is reportedly included in a “Vision Setting Summit” presentation by Rear Admiral Timothy Gallaudet, acting administrator of NOAA. Secretary Zinke’s memorandum, released on December 5, 2017 and outlining his monument recommendations, included the recommendation to eliminate the prohibition on commercial fishing and give fishery management authority to the regional fishery management councils under the Magnuson-Stevens Fishery Conservation and Management Act for the Northeast Canyons and Seamounts, Pacific Remote Islands, and Rose Atoll marine monuments.

Oct. 5, 2018 The DC District Court holds that President Obama did possess the proper authority under the Antiquities Act to establish Canyons and Seamounts Monument in 2016. In response to the question of whether the marine monuments qualified for the sort of protections created by President Obama, the court held that “The Antiquities Act reaches lands both dry and wet.” Mass. Lobstermen’s Association v. Ross, No. 17-406 (D.D.C.).

Oct. 22, 2019 The DC Circuit hears oral argument in the case challenging President Obama’s designation of the Northeast Canyons and Seamounts Marine National Monument. A coalition of fishing interests led by the Massachusetts Lobstermen’s Association filed the appeal with the DC Circuit on Dec. 7, 2018. Mass. Lobstermen’s Association v. Wilbur Ross, Docket No.18-05353.

Dec. 27, 2019 The DC Circuit dismisses the fishing coalition’s challenge in Mass. Lobstermen’s Association v. Wilbur Ross, affirming the district court and upholding the creation of the Canyons and Seamounts Monument. Docket No.18-05353.

May 8, 2020 The Western Pacific Regional Fishery Management Council sends a letter to President Trump requesting that he lift the commercial fishing restrictions in the Pacific marine national monuments. The letter is in response to Trump’s May Executive Order on Promoting American Seafood Competitiveness and Economic Growth.

June 5, 2020 President Trump signs a proclamation allowing commercial fishing in the Northeast Canyons and Seamounts Marine National Monument.

June 17, 2020 Environmental groups file a lawsuit challenging President Trump’s reversal of the commercial fishing ban in the Northeast Canyons and Seamounts Marine National Monument. Conservation Law Foundation et al. v. Trump, Docket No. 1:20-cv-01589 (D.D.C.).

Dec. 7, 2020 The federal government urges the Supreme Court to deny certiorari (decline to hear) an appeal that could overturn the creation of the Northeast Canyons and Seamounts Marine National monument. The government’s brief argues that the plaintiff commercial lobstering groups no longer have standing to challenge the monument’s creation because President Trump lifted the commercial fishing ban. Massachusetts Lobstermen’s Association v. Ross, No. 20-97 (S. Ct. 2020) (appealing No. 18-05353 (D.C. Cir. 2019)).

Early Biden Actions

Jan. 20, 2021 President Biden issues an Executive Order establishing a policy to “restore and expand our national treasures and monuments,” and specifically recommending the Secretary of the Interior to review President Trump’s proclamation lifting the prohibition on commercial fishing within the monument, and issue a report summarizing the findings of that review within 60 days.

March 17, 2021 Interior Secretary Haaland delays recommendations to President Biden on restoring the boundaries and conditions of Bears Ears, Grand Staircase-Escalante, and the Northeast Canyons and Seamounts monuments in order to meet in-person with stakeholders in Utah. President Biden’s Jan. 20 EO on public health and the environment ordered the Secretary to review these boundaries within 60 days.

March 22, 2021 The Supreme Court declines to review President Obama’s creation of the Northeast Canyons and Seamounts Marine National Monument. Nevertheless, Chief Justice John Roberts signals that the Court is open to reviewing whether the creation of other monuments was consistent with the “smallest area compatible” provision of the Antiquities Act. Massachusetts Lobstermen’s Association v. Raimondo, No. 20-97.

April 6, 2021 The Director of NOAA’s Office of National Marine Sanctuaries confirms the agency is no longer reviewing monument designations as required under former President Trump’s executive order 13795. President Biden rescinded the Trump order on January 20, 2021 when he issued Executive Order 13990.