Massachusetts and New Jersey commercial fishermen are suing the Biden Administration for banning fishing in a large swath of the Georges Bank area of the North Atlantic Ocean.
They claim the fishing ban is unnecessary and beyond the authority of the president under the 1906 Antiquities Act.
Antiquities Act Has Limits
The Antiquities Act of 1906 was enacted under President Theodore Roosevelt to enable the president to quickly protect Native American archaeological sites, scientifically or historically important locations, and artifacts from looters.
Under the law, the president can declare threatened sites national monuments without congressional approval.
However, there are constraints on this power, such as the requirement in Section 2 of the act that the area set aside be on federal land, and as small as necessary to preserve the site, “the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”
Obama’s Marine Monument
Months before leaving office in 2016, President Barack Obama used to Antiquities Act to establish the Northeast Canyons and Seamounts Marine National Monument, consisting of a 3.2-million-acre swath of ocean in the Atlantic.
As part of his declaration, Obama barred commercial fishing in the area, where such activities had long been common and successful.
After Donald Trump became president, he reviewed Obama’s monument declarations, changing the borders of some. Although Trump maintained the borders of the monument, he reversed Obama’s ban on commercial fishing.
President Joe Biden has re-imposed Obama’s ban on commercial fishing.
‘Devastated Their Livelihoods’
In their lawsuit, the plaintiffs, lifelong professional fishermen Pat Fehily of New Jersey and Tim Malley of Massachusetts, allege the Biden administration used an illegitimate method of executive decree that is an abuse of the Antiquities Act.
The administration ignored the impact of its decision on the commercial fishing industry and provided no evidence the fishing negatively affects the monument, says Frank Garrison, an attorney with the Pacific Legal Foundation, one of the lawyers representing the plaintiffs.
“The administration gave these fishermen little input and ignored their calls to not restore the commercial fishing ban,” Garrison said. “The Georges Bank region has historically maintained a large part of the shellfish and coastal fishing industry of New England. President Biden styles himself a champion of the working class, but when it came to the hardworking fishermen who made their living in the Georges Bank area, he devastated their livelihoods without so much as a second thought,” Garrison said. “There is no legal or scientific justification for banning commercial fishing across a 5,000 square mile swath of ocean.”
‘Mission Creep’
Presidents have abused the Antiquities Act for decades, expanding the areas covered well beyond the minimum necessary to protect the object to be protected, says Bob Vanasse, founder of the pro-fishing industry group Saving Seafood.
“Over the last hundred and twenty years, since its adoption, there has been mission creep,” said Vanasse. No one said it better than Chief Justice Roberts, who said that we’ve come a long way from indigenous pottery.”
There is no a reason to ban fishing within the monuments, especially for things like red crabs and other shellfish in the region, because the New England commercial fishing industry does a great job of fishing sustainably and safely, says Vanasse.
“We consider the red crab industry to be a poster child for doing it right; taking a species that was underutilized and harvesting it sustainably and responsibly and in a non-damaging way to take the pressure off other species like the blue crab that was facing harvesting pressure,” said Vanasse. “There is no evidence whatsoever that any of these species are being overfished.”
Abuses from Both Parties
Presidents from both parties have abused the Antiquities Act to burnish their environmental credentials, said Vanesse, pointing out that in 2009, shortly before leaving office, President George W. Bush set aside 140,000 square miles of the Pacific Ocean as three marine monuments, which at the time was the largest marine reserve in the world.
“If we need marine sanctuaries, we have the Marine Sanctuaries Act, which could be used and was used off the coast of Massachusetts to create the Stellwagen Bank Marine Sanctuary,” said Vanasse. “We also have the Magnuson-Stevens Act to regulate fisheries, which is considered internationally to be the gold standard of harmonized fisheries. This use of the Antiquities Act a real usurpation of authority on the part of a number of administrations, it’s not a Republican versus Democrat thing.”
Linnea Lueken (llueken@heartland.org) is a research fellow with the Arthur B. Robinson Center on Climate and Environmental Policy at The Heartland Institute.