Bloomberg Law
March 22, 2021, 1:36 PMUpdated: March 22, 2021, 6:10 PM

SCOTUS Won’t Review Marine Monument Case But Issues Warning (3)

Ellen M. Gilmer
Ellen M. Gilmer

The U.S. Supreme Court won’t take up a challenge to Obama-era protections for a marine monument off the coast of New England, in a win for conservationists and blow to fishermen who have fought restrictions in the area for years.

But the denial came with a warning from Chief Justice John Roberts, who expressed concern that presidents have been exercising “power without any discernible limit” when they create new national monuments.

The high court on Monday rejected a petition from the Massachusetts Lobstermen’s Association and other groups that say the 2016 establishment of the Northeast Canyons and Seamounts Marine National Monument exceeded the president’s authority under the Antiquities Act.

In a statement on the court’s denial of the petition, Roberts questioned the scope of presidential authority under the law, which governs monuments. Roberts noted that the act was intended to protect prehistoric Indigenous artifacts and “smallest area compatible” with protection.

“Somewhere along the line, however, this restriction has ceased to pose any meaningful restraint,” he wrote. “A statute permitting the President in his sole discretion to designate as monuments ‘landmarks,’ ‘structures,’ and ‘objects'—along with the smallest area of land compatible with their management—has been transformed into a power without any discernible limit to set aside vast and amorphous expanses of terrain above and below the sea.”

Roberts concluded, however, that the case didn’t meet the court’s typical bar for review. There’s no split among appellate courts on the legal question of what qualifies as the “smallest area compatible,” and the U.S. Court of Appeals for the District of Columbia Circuit found the petitioners in the case didn’t sufficiently address that issue, he wrote.

‘Silver Lining’

Fishing groups opposed to the Northeast Canyons monument are disappointed the court refused to hear their case, but the chief justice’s statement is a “major silver lining,” said Pacific Legal Foundation senior attorney Jonathan Wood, who represents them.

“It’s a big deal for the chief to file a statement like that,” Wood told Bloomberg Law. “I read it as basically inviting similar cases. It’s trying to send a signal to the Supreme Court bar of, ‘This is an issue I’m interested in. Start bringing me the cases.’”

Natural Resources Defense Council senior attorney Kate Desormeau, who helped defend the marine monument, celebrated the court’s refusal to review it. She said Roberts’ statement raised questions “in the abstract” but maintained that there is “ample scientific support” for the monument’s size.

But the chief justice’s statement may serve as a stark word of caution for the Biden administration and future presidents aiming to expand protections on federal lands and waters. The Biden administration is considering restoring vast acreage to the Bears Ears and Grand Staircase-Escalante national monuments in Utah, which were slashed under President Donald Trump.

“We may be presented with other and better opportunities to consider this issue without the artificial constraint of the pleadings in this case,” Roberts wrote.

That’s of little consolation to fishermen affected by restrictions in the Northeast Canyons monument, said Grant Moore, president of the Atlantic Offshore Lobstermen’s Association, a party to the case.

“His statement leads me to believe that he realizes and understands the complexity of this issue,” Moore told Bloomberg Law. “Unfortunately for the fishing industry, we are just a speck of dust.”

Other Cases

Litigation over the embattled Bears Ears and Grand Staircase monuments is on hold while the Biden administration reviews them. Other cases challenging the expansion of the Cascade-Siskiyou National Monument in Oregon are also percolating in the D.C. Circuit and the U.S. Court of Appeals for the Ninth Circuit, but they’ve also been on pause for procedural reasons.

The litigation could be a good vehicle for the Supreme Court to delve into the scope of the Antiquities Act, said Lawson Fite, who’s involved in the D.C. Circuit case as general counsel of American Forest Resource Council

“I find it encouraging that the chief justice is really concerned about executive overreach in this area,” he said. “That’s been a theme of a lot of the cases.”

Vermont Law School professor Hillary Hoffmann said the chief justice’s concerns likely don’t affect national monuments on land, “as those monuments fit squarely within the historic context” of the Antiquities Act. His statement might just amount to a “public grumble,” she added, but could embolden some members of Congress to amend the statute to limit the president’s authority to create new monuments.

Trump Defense

The Northeast Canyons and Seamounts Marine National Monument was a notable example of Obama-era protections the Trump administration defended in court. Lower courts upheld the designation, though Trump ultimately lifted some fishing restrictions within the area. President Joe Biden in January ordered the Interior Department to consider whether reverting to the Obama-era restrictions “would be appropriate.”

The marine monument, which covers 5,000 square miles in the Atlantic Ocean about 130 miles southeast of Cape Cod, protects a unique landscape of underwater canyons and mountains and diverse marine life.

The fishermen say the protections go too far because they cover more acreage than necessary and include areas beyond U.S. territorial seas, though within the nation’s exclusive economic zone.

The case is Mass. Lobstermen’s Ass’n v. Coggins, U.S., No. 20-97, cert. denied.

(Updated with additional reporting throughout.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editor responsible for this story: Anna Yukhananov at