Massachusetts Lobstermen's Assn. v. Raimondo

M
                 Cite as: 592 U. S. ____ (2021)            1

                  Statement of ROBERTS, C. J.

SUPREME COURT OF THE UNITED STATES
 MASSACHUSETTS LOBSTERMEN’S ASSOCIATION,
  ET AL. v. GINA M. RAIMONDO, SECRETARY OF
                COMMERCE, ET AL.
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
     STATES COURT OF APPEALS FOR THE DISTRICT OF
                   COLUMBIA CIRCUIT
              No. 20–97. Decided March 22, 2021

   The petition for a writ of certiorari is denied.
   Statement of CHIEF JUSTICE ROBERTS respecting the de-
nial of certiorari.
   Which of the following is not like the others: (a) a monu-
ment, (b) an antiquity (defined as a “relic or monument of
ancient times,” Webster’s International Dictionary of the
English Language 66 (1902)), or (c) 5,000 square miles of
land beneath the ocean? If you answered (c), you are not
only correct but also a speaker of ordinary English. In this
case, however, the Government has relied on the Antiqui-
ties Act of 1906 to designate an area of submerged land
about the size of Connecticut as a monument—the North-
east Canyons and Seamounts Marine National Monument.
   The creation of a national monument is of no small con-
sequence. As part of managing the Northeast Canyons and
Seamounts Marine National Monument, for example, Pres-
ident Obama banned almost all commercial fishing in the
area with a complete ban to follow within seven years.
Presidential Proclamation No. 9496, 3 CFR 262, 266–267
(2016). According to petitioners—several commercial fish-
ing associations—the fishing restrictions would not only
devastate their industry but also put severe pressure on the
environment as fishing would greatly expand in nearby ar-
eas outside the Monument. Although the restrictions were
lifted during this litigation, Presidential Proclamation
No. 10049, 85 Fed. Reg. 35793 (2020), that decision is set to
be reconsidered and the ban may be reinstated, Exec. Order
2   MASSACHUSETTS LOBSTERMEN’S ASSN. v. RAIMONDO

                   Statement of ROBERTS, C. J.

No. 13990, 86 Fed. Reg. 7037, 7039 (2021). Either way, the
Monument remains part of a trend of ever-expanding an-
tiquities. Since 2006, Presidents have established five ma-
rine monuments alone whose total area exceeds that of all
other American monuments combined. Pet. for Cert. 7–8.
   The Antiquities Act originated as a response to wide-
spread defacement of Pueblo ruins in the American South-
west. Because there was “scarcely an ancient dwelling site”
in the area that had not been “vandalized by pottery diggers
for personal gain,” the Act provided a mechanism for the
“preservation of prehistoric antiquities in the United
States.” Dept. of Interior, Nat. Park Serv., R. Lee, The An-
tiquities Act of 1906, pp. 33, 48 (1970) (internal quotation
marks omitted). The Act vests significant discretion in the
President, who may unilaterally “declare by public procla-
mation historic landmarks, historic and prehistoric struc-
tures, 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 President may also reserve “parcels of
land as a part of the national monuments,” but those par-
cels must “be confined to the smallest area compatible with
the proper care and management of the objects to be pro-
tected.” §320301(b).
   The broad authority that the Antiquities Act vests in the
President stands in marked contrast to other, more restric-
tive means by which the Executive Branch may preserve
portions of land and sea. Under the National Marine Sanc-
tuaries Act, for example, the Secretary of Commerce can
designate an area of the marine environment as a marine
sanctuary, but only after satisfying rigorous consultation
requirements and issuing findings on 12 statutory criteria.
See 

16 U.S. C

. §1433(b). The President is even more con-
strained when it comes to National Parks, which may be
established only by an Act of Congress. See 

54 U.S. C

.
§100101 et seq.
                 Cite as: 592 U. S. ____ (2021)            3

                  Statement of ROBERTS, C. J.

   While the Executive enjoys far greater flexibility in set-
ting aside a monument under the Antiquities Act, that flex-
ibility, as mentioned, carries with it a unique constraint:
Any land reserved under the Act must be limited to the
smallest area compatible with the care and management of
the objects to be protected. See §320301(b). Somewhere
along the line, however, this restriction has ceased to pose
any meaningful restraint. A statute permitting the Presi-
dent in his sole discretion to designate as monuments “land-
marks,” “structures,” and “objects”—along with the small-
est 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.
   The Northeast Canyons and Seamounts Marine National
Monument at issue in this case demonstrates how far we
have come from indigenous pottery. The Monument con-
tains three underwater canyons and four undersea volca-
noes. The “objects” to be “protected” are the “canyons and
seamounts themselves,” along with “the natural resources
and ecosystems in and around them.” Presidential Procla-
mation No. 9496, 3 CFR 262.
   We have never considered how a monument of these pro-
portions—3.2 million acres of submerged land—can be jus-
tified under the Antiquities Act. And while we have sug-
gested that an “ecosystem” and “submerged lands” can,
under some circumstances, be protected under the Act, see
Alaska v. United States, 

545 U.S. 75

, 103 (2005), we have
not explained how the Act’s corresponding “smallest area
compatible” limitation interacts with the protection of such
an imprecisely demarcated concept as an ecosystem. The
scope of the objects that can be designated under the Act,
and how to measure the area necessary for their proper care
and management, may warrant consideration—especially
given the myriad restrictions on public use this purely dis-
cretionary designation can serve to justify. See C. Vincent,
4   MASSACHUSETTS LOBSTERMEN’S ASSN. v. RAIMONDO

                   Statement of ROBERTS, C. J.

Congressional Research Service, National Monuments and
the Antiquities Act 8–9 (2018) (detailing ways in which
“management” of a monument limits recreational, commer-
cial, and agricultural uses of the surrounding area).
                         *    *      *
   Despite these concerns, this petition does not satisfy our
usual criteria for granting certiorari. No court of appeals
has addressed the questions raised above about how to in-
terpret the Antiquities Act’s “smallest area compatible” re-
quirement. 

54 U.S. C

. §320301(b). The D. C. Circuit below
held that petitioners did not plead sufficient facts to assess
their claim that the Monument swept beyond the “smallest
area compatible” with management of the ecosystem. To
date, petitioners have not suggested what this critical stat-
utory phrase means or what standard might guide our re-
view of the President’s actions in this area. And at the pre-
sent time the issue whether to reinstate the fishing
prohibition remains under consideration. Exec. Order No.
13990, 86 Fed. Reg. 7037, 7039.
   We may be presented with other and better opportunities
to consider this issue without the artificial constraint of the
pleadings in this case. See Pet. for Cert. 34 (citing five other
cases pending in federal courts concerning the boundaries
of other national monuments). I concur in the denial of cer-
tiorari, keeping in mind the oft-repeated statement that
such a denial should not be taken as expressing an opinion
on the merits. See Missouri v. Jenkins, 

515 U.S. 70

, 85
(1995).

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