By Brett Francis | Staff Editor

April 16, 2024

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In the past few decades, presidents have used the power granted them under the Antiquities Act to protect vast areas of ocean as national monuments. This started with President Clinton, who reserved 30,843 acres of coral reefs across two monuments.[1] President Bush took this idea a step further, proclaiming three massive marine national monuments in the western Pacific Ocean spanning hundreds of thousands of square miles.[2] President Obama didn’t slow down—he expanded this “marine national monument” system by hundreds of thousands more square miles.[3]

These presidents were using a 1906 land management law designed for protecting archaeological sites in the American Southwest in a brand new way.[4] The Antiquities Act had long been a key tool for presidents seeking to protect land, largely because of its simplicity.[5] In two sentences, the law authorizes the President to set aside federally controlled lands for protection as national monuments via proclamation.[6] There are only two restrictions on this power: national monuments must be centered around “objects of historic or scientific interest” and limited to the “smallest area compatible with the proper care and management” of the protected objects.[7]

Presidents Clinton, Bush, and Obama all created marine national monuments by stating they were centered around ecosystems as objects of scientific interest and were of the smallest area compatible with protecting those ecosystems.[8] And for years, opponents of these monuments grumbled and fought marine monuments politically. But it was not until President Obama’s proclamation of the Northeast Canyons and Seamounts National Monument that anyone made a legal challenge.[9]

A fishing association (the Massachusetts Lobstermen’s Association) claimed that the Northeast Canyons and Seamounts Marine National Monument did not fit the requirements of the Antiquities Act.[10] They claimed President Obama had abused his discretion in proclaiming the monument.[11] The government moved to dismiss these claims as failing to allege sufficient facts to support the claims.[12] Because the Lobstermen’s Association didn’t provide any scientific basis to back up their claims, only stating that the monument was much larger than the canyons and seamounts the monument was meant to protect, the District Court granted the motion.[13] On appeal, the Circuit Court for the D.C. Circuit affirmed this decision.[14]

The plaintiffs attempted to appeal further, all the way to the Supreme Court.[15] The Court denied certiorari, but Chief Justice Roberts issued a special statement inviting similar challenges and calling into doubt, in at least his opinion, the legality of large-scale marine monuments.^[16] Roberts went so far as to invite future challenges under the Antiquities Act, so long as they alleged better facts.[17]

But how could the Court even approach an Antiquities Act challenge? The National Environmental Policy Act (NEPA) doesn’t apply.[18] The Administrative Procedure Act doesn’t provide for judicial review of presidential actions, only agency ones.[19] The district court in Mass. Lobstermen’s Ass’n indicated a right to review of presidential actions as ultra vires, or beyond the powers granted by statute or the Constitution.[20] But there is no guarantee that this was a correct holding. Some scholars have gone so far as to argue that, under current Supreme Court precedent, there is no room for meaningful review of presidential actions under the Antiquities Act.[21] Ultimately, if the Court chooses to pursue the question, it will be for the Court to decide.

The other question, then, is should the Court consider reviewing Antiquities Act proclamations? My answer is no. Marine national monuments have proven to be an incredibly effective conservation tool.[22] Congress seems to have accepted the practice, and even if it does not, it should be the one to restrict the powers it granted—not courts.[23]

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[1] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 235 (2019).

[2] Id.

[3] Proclamation No. 9478, 81 Fed. Reg. 60,227, 60,227 (Aug. 26, 2016) (Expanding the Papahānaumokuākea Marine National Monument) (expanding an existing marine national monument in the Northwestern Hawaiian Island by about 440,000 square miles); Proclamation No. 9496, 81 Fed. Reg. 65,153 (Sept. 15, 2016) (Establishment of the Northeast Canyons and Seamounts Marine National Monument) (creating a new marine national monument in the Atlantic Ocean).

[4] Benjamin Hayes, Cong. Rsch. Serv., R45718, The Antiquities Act: History, Current Litigation, and Considerations for the 116th Congress 1 (2019).

[5] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev. 473, 475 (2003).

[6] 54 U.S.C. § 320301(a) (2018).

[7] 54 U.S.C. § 320301(b) (2018).

[8] Tyler C. Costello, Are Marine National Monuments “Situated on Lands Owned or Controlled by the Government of the United States?’, 24 Ocean & Coastal L. J. 219, 236 (2019).

[9] See generally Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535 (D.C. Cir. 2019).

[10] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 55 (Dist. D.C. 2018).

[11] Id.

[12] Id. at 54.

[13] Id. at 68.

[14] Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535, 545 (D.C. Cir. 2019).

[15] See generally Mass. Lobstermen’s Ass’n v. Raimondo, 141 S. Ct. 979 (2021) (statement of Roberts, C.J.) (cert. denied).

[16] Id.

[17] Id. at 981.

[18] Joseph Brigget, An Ocean of Executive Authority: Courts Should Limit the President’s Antiquities Act Power to Designate Monuments in the Outer Continental Shelf, 22 Tul. Env’l L.J. 403, 411–12 (2009) (citing State of Alaska v. Carter, 462 F. Supp. 1155, 1160 (D. Alaska 1978)).

[19] Kevin M. Stack, The Reviewability of the President’s Statutory Powers, 62 Vand. L. Rev. 1171, 1172 (2009) (citing Franklin v. Massachusetts, 505 U.S. 788, 801 (1992)).

[20] Mass. Lobstermen’s Ass’n v. Ross, 349 F. Supp. 3d 48, 53 (Dist. D.C. 2018).

[21] Lance F. Sorenson, The Hybrid Nature of the Property Clause: Implications for Judicial Review of National Monument Reductions, 21 J. Const. L. 761, 804–08 (2019).

[22] Margaret Cooney et al., How Marine Protected Areas Help Fisheries and Ocean Ecosystems, CAP20 (June 3, 2019) https://www.americanprogress.org/article/marine-protected-areas-help-fisheries-ocean-ecosystems/.

[23] Stack, supra note 19, at 808–09.