Amicus Curiae Brief — Massachusetts Lobstermen's Association, et al., Petitioners v. Gina M. Raimondo, Secretary of Commerce, et al.

No. 20-97

In The

Supreme Court of the United States

____________________

MASSACHUSETTS LOBSTERMEN’S

ASSOCIATION, et al.,

Petitioners,

v.

WILBUR ROSS, Secretary of Commerce, et al.,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the D.C. Circuit

____________________

BRIEF AMICUS CURIAE OF

INTERNATIONAL ASSOCIATION OF

GEOPHYSICAL CONTRACTORS, NATIONAL

OCEAN INDUSTRIES ASSOCIATION, AND

OFFSHORE OPERATORS COMMITTEE

IN SUPPORT OF PETITIONERS

____________________

PAUL J. BEARD II

Counsel of Record

FisherBroyles LLP

4470 W. Sunset Blvd., Suite 93165

Los Angeles, CA 90027

(818) 216-3988

paul.beard@fisherbroyles.com

Counsel for Amici Curiae

i

Question Presented

The Antiquities Act of 1906 authorizes the

President to declare national monuments to protect

certain objects “situated on land owned or controlled

by the Federal Government.” 54 U.S.C. § 320301(a).

The boundaries of such monuments must be the

“smallest area compatible with the proper care . . . of

the objects to be protected.” Id. § 320301(b).

For 100 years, the Antiquities Act was understood

to apply only where the federal government has

plenary power, such as federal land and tribal land. In

2006, however, the President claimed to discover that

his power was greater than previously understood.

Interpreting the Antiquities Act to authorize

monuments anywhere the federal government has a

significant amount of regulatory authority, the

President designated five vast ocean monuments

including the 3.2 million-acre Northeast Canyons and

Seamounts Marine National Monument.

The questions presented are:

Whether, in conflict with the holdings of the Fifth

and Eleventh Circuits and the National Marine

Sanctuaries Act, the Antiquities Act applies to ocean

areas beyond United States’ sovereignty where the

federal government has only limited regulatory

authority.

Whether the President can evade the Antiquities

Act’s “smallest area” requirement, including

designating ocean monuments larger than most

states, by vaguely referencing “resources” or an

“ecosystem” as the objects to be protected.

ii

Table of Contents

IDENTITIES AND INTERESTS OF AMICI ............. 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT ............................................................... 3

ARGUMENT ............................................................... 8

CONCLUSION.......................................................... 18

iii

Table of Authorities

Cases

Clinton v. City of New York,

524 U.S. 417 (1998) ............................................. 8

Corley v. United States,

556 U.S. 303 (2009) ............................................. 7

United States v. Great Lakes

Dredge & Dock Co.,

259 F.3d 1300 (11th Cir. 2001) ......................... 14

United States v. M/V Miss Beholden,

856 F. Supp. 668 (S.D. Fla. 1994) ..................... 14

Statutes

16 U.S.C. § 1431 .............................................6, 13-14

16 U.S.C. § 1433 ....................................... 9-10, 14-16

16 U.S.C. § 1434 ...........................................10, 16-17

16 U.S.C. § 3213 ........................................................ 9

54 U.S.C. § 320301 ...........................................3, 9-12

Antiquities Act of 1906,

Pub. L. 59-209, 34 Stat. 225 .............................. 10

Regulations

81 Fed. Reg. 65,161 ................................................... 3

85 Fed. Reg. 35,793 ................................................... 3

iv

Other Authorities

40 Cong. Rec. 7888 (June 6, 1906) ..............14-15, 17

Brax, Jeff, Zoning the Oceans: Using the

National Marine Sancturies Act and the

Antiquities Act to Establish Marine

Protection Areas and Marine Reserves in

America, 29 Ecology L.Q. 71 (2002) .................. 15

Briggett, Joseph, Comment, An Ocean of

Executive Authority: Courts Should

Limit the President’s Antiquities Act

Power To Designate Monuments in the

Outer Continental Shelf,

22 Tul. Envtl. L.J. 403 (2009) .......... 14-15, 17-18

Bureau of Ocean Energy Management,

Oil and Gas Energy Fact Sheet (2020)................ 4

Chandler, William J. & Gillelan, Hannah,

The History and Evolution of the

National Marine Sanctuaries Act,

34 Envtl. L. Reporter 10505 (2004) .............13-14

Hillman, Bradford Alexander, Stuck in

Limbo: Can Offshore Wind Ever Break

Free in New England Amid Maze of

Regulatory and Political Challenges?,

18 Vt. J. Envtl. L. 308 (2016) .......................... 4-5

H.R. Rep. No. 92-361 ............................................ 4-5

v

McClennan, Stephanie A., Ph.D., University

of Delaware, Supply Chain Contracting

Forecast for U.S. Offshore Wind Power

(March 2019) .................................................... 5-6

Morris, Peter H., Monumental Seascape

Modification Under the Antiquities Act,

43 Envtl. L. 173 (2013) ...................................... 15

Patlis, Jason, et al., The National Marine

Sanctuary Syste: The Once and Future

Promise of Comprehensive Ocean

Governance,

44 Envtl. L. Reporter 10932 (2014) .................. 17

Rigano, Gregory J., The Solution to the

United States’ Energy Troubles is

Blowing in the Wind,

39 Hofstra J. Rev. 201 (2010) .......................... 4-5

U.S. Energy Information Administration,

Petroleum & Other Liquids: Crude Oil

Production (2020) ................................................ 5

Yoo, John, & Gaziano, Todd, Presidential

Authority to Revoke or Reduce National

Monument Designations,

35 Yale J. on Reg. 617 (2018) .......................11-13

Zhang, Feng, et al., Economic Impact Study

of New Offshore Wind Lease Auctions by

BOEM (Aug. 2020) .............................................. 6

1

IDENTITIES AND INTERESTS OF AMICI

Amici1 consist of a broad coalition of associations

representing the onshore and offshore energy

exploration and production industry.

The International Association of Geophysical

Contractors (IAGC) is the global trade association for

the geophysical and exploration industry, the

cornerstone of the energy industry. IAGC works to

enhance public understanding to support a strong,

viable geophysical and exploration industry essential

to discovering and delivering the world’s energy

resources. IAGC’s membership includes onshore and

offshore survey operators and acquisition companies,

data and processing providers, exploration and

production companies, equipment and software

manufacturers, industry suppliers, and service

providers.

The National Ocean Industries Association

(NOIA) represents and advances a dynamic and

growing offshore energy industry, providing solutions

that support communities and protect workers, the

public and the environment. NOIA has more than 100

member companies, representing offshore oil and

natural gas, wind and mineral production, drilling

contractors, service providers, geophysical explorers,

1 Counsel of record for all parties received timely notice

of the intention to file this brief, and the parties have consented

to the brief’s filing. No party or counsel for any party authored

this brief in whole or in part, and no party or counsel for any

party made a monetary contribution towards the preparation or

submission. No person other than amici, their members or

counsel made a monetary contribution towards the preparation

of submission of this brief.

2

manufacturers and suppliers, marine construction,

marine and air transportation, and law, finance and

professional services, among other offshore industry

segments.

The Offshore Operators Committee (OOC) is a

trade association formed in 1948. It represents

offshore oil and natural gas exploration and

production companies that operate on the Outer

Continental Shelf, as well as the service and supply

industries that support their efforts. In 2019, the

OOC’s mission expanded to include offshore

renewable-energy development.

Members of amici who are involved in the offshore

development of energy take pride in doing so in a way

that is both safe and protective of marine resources.

And they recognize the Federal Government’s role in

the protection of those important resources. Their

interest is in ensuring that all government actions to

that end are consistent with the law.

Congress gave the Executive Branch authority to

protect special marine areas through the enactment of

the National Marine Sanctuaries Act. That law

provides for a transparent, democratic, and robust

review process before the Secretary of Commerce may

designate and thereby restrict activities in ocean

areas. But in an effort to short-circuit those strict

standards and procedures, established for the benefit

of all stakeholders and the general public, the

President has in recent years turned to an inapt and

near-standardless statute enacted for the designation

of structures and objects situated on land (the

Antiquities Act of 1906) to proclaim millions of acres

of ocean as “monuments.” In the President’s quest for

3

a quick and easy fix to the National Marine

Sanctuaries Act’s slower, more deliberative process,

the Act has been abandoned—and, with it, the

consensus-building,

public

participation,

and

scientific rigor that Congress purposely built into

sanctuary decisions.

The livelihoods of amici’s members depend upon

the responsible use of ocean areas. Those areas are

threatened with “monument” status by the mere

stroke of a presidential pen, with no required public

notice or comment, and no required consultation with

affected States, the Congress, or experts. In hopes of

restoring their voices and those of other stakeholders

to the designation process, amici urge the Court to

grant the petition and resolve whether the Executive

may effectively modify or ignore laws, like the

National Marine Sanctuaries Act, that plainly govern

its authority to designate special marine areas.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Acting pursuant to the Antiquities Act of 1906, 54

U.S.C. §§ 320301 et seq., President Obama issued

Proclamation 9496 (“Proclamation”), designating

approximately 3.2 million acres of the Atlantic Ocean

as the Northeast Canyons and Seamounts Marine

National Monument (“Monument”). 81 Fed. Reg.

65,161 (Sept. 21, 2016). With the objective of

protecting that area as a special “marine

environment,” the Proclamation prohibits, among

other activities, “[f]ishing commercially or possessing

commercial fishing gear” within the Monument. Id. at

65163, 65165. Given that prohibition, commercial

fishing groups challenged the Proclamation as

4

exceeding the authority that the Antiquities Act

grants to the President. However, the Proclamation—

and the purported authority upon which it rests—

affect other vital industries, including amici’s.2

The Proclamation largely bans oil, gas, and

renewable-energy exploration and production in the

Monument. The Proclamation specifically prohibits

“[e]xploring for, development, or producing oil and gas

or minerals, or undertaking any other energy

exploration or development activities within the

monument,” as well as “drilling into, anchoring,

dredging, or otherwise altering the submerged lands”

or “constructing, placing, or abandoning any

structure, material, or other matter on the submerged

lands.” Id. at 65164-65. The Proclamation and the

purported authority on which it is based threaten the

viability of offshore energy exploration and

production, which is an important driver of this

Nation’s energy independence.3

2 In June, the President issued a new proclamation lifting the

Monument’s prohibitions on commercial fishing. 85 Fed. Reg.

35,793 (June 5, 2020). All remaining provisions of the

Proclamation remain intact, including the prohibition on offshore

energy exploration and development. Id.

3 Bureau of Ocean Energy Management, Oil and Gas Energy Fact

Sheet

(rev.

Jan.

2020),

available

at

https://www.boem.gov/sites/default/files/documents/oil-gasenergy/BOEM_FactSheet-Oil%26amp%3BGas-2-26-2020.pdf

(“Offshore oil and gas play an important role in our national

energy portfolio. In Fiscal Year (FY) 2019, offshore federal

production . . . accounted for about 16 percent of all domestic oil

production and 3 percent of domestic natural gas production.”);

Bradford Alexander Hillman, Stuck in Limbo: Can Offshore

Wind Ever Break Free in New England Amid Maze of Regulatory

and Political Challenges?, 18 Vt. J. Envtl. L. 308, 345 (2016)

5

The areas offshore the Nation’s coasts have for

decades supplied oil and natural gas for the United

States economy, and they are projected to become a

major source of wind energy for the United States

power market over the next ten to twenty years.

Federal production from offshore areas has exceeded

one million barrels of oil per day since June of 1996,

with volumes reaching a record level of more than two

million barrels of oil per day this past November.4

Offshore production currently accounts for about 16

percent of domestic oil production and was as high as

32 percent of United States production in July of

2009.5 Every barrel produced in the United States is

one less barrel required from foreign sources.6 As for

renewable energy, nearly $70 billion in capital

expenditures is projected for the build out of the

Atlantic offshore wind industry between now and

2030, based upon forecasts of state offshore wind

(“New England retains vast potential in offshore wind that could

bring a multitude of benefits to New England from reduced

electric rates to energy independence to thousands of jobs and

billions of dollars in investment.”); Gregory J. Rigano, Note, The

Solution to the United States’ Energy Troubles Is Blowing in the

Wind, 39 Hofstra J. Rev. 201, 236 (2010) (“[R]enewable energy in

the form of offshore wind is imperative for the United States to

proceed with its quest for energy independence.”).

4 U.S. Energy Information Administration, Petroleum & Other

Liquids:

Crude

Oil

Production,

available

at

http://www.eia.gov/dnav/pet/pet_crd_crpdn_adc_mbblpd_m.htm;

U.S. Energy Information Administration, Federal Offshore—

Gulf of Mexico Field Production of Crude Oil, available at

https://www.eia.gov/dnav/pet/hist/LeafHandler.ashx?n=PET&s=

MCRFP3FM2&f=M.

5 Id.

6 Id.

6

power procurements.7 Additional federal leasing

opportunities for offshore wind could result in the

development of 28 gigawatts of offshore wind energy,

80,000 American jobs per year by 2035, more than $1

billion to the U.S. Treasury, and $166 billion in total

investment in the U.S. economy by 2035.8

As a voice of the offshore energy industry, amici

recognize the need to protect special marine areas off

the Nation’s coasts. Their members have been

steadfast in their promotion of the health and

biodiversity of marine ecosystems, as they toil offshore

to supply America’s energy needs. But this case is not

about whether the Federal Government can or should

protect special marine environments. It is about how

it may lawfully do so.

In 1972, over sixty-five years after passage of the

Antiquities Act, Congress passed the National Marine

Sanctuaries Act (“NMSA”) for the specific purpose of

protecting special marine areas—like the area

designated by the 2016 Proclamation. 16 U.S.C. §

1431, et seq. Nevertheless, when designating marine

areas, Presidents in recent years have abandoned the

NMSA in favor of the Antiquities Act. The reason is

that designating “monuments” under the Antiquities

Stephanie A. McClennan, Ph.D., University of Delaware,

Supply Chain Contracting Forecast for U.S. Offshore Wind

Power 6 (March 2019), available at https://cpb-usw2.wpmucdn.com/sites.udel.edu/dist/e/10028/files/2020/01/SIO

W-White-Paper-Supply-Chain-Contracting-Forecast-for-USOffshore-Wind-Power-FINAL.pdf.

8 Feng Zhang et al., Economic Impact Study of New Offshore

Wind Lease Auctions by BOEM (Aug. 2020), available at

https://www.noia.org/wp-content/uploads/2020/08/Offshorewind-economic-impact-analysis-white-paper-final-1.pdf.

7

7

Act is far easier and quicker than designating

“sanctuaries” under the NMSA.

Indeed, the substantive and procedural

requirements imposed by the two statutes could not

be more different. The President has broad discretion

under the Antiquities Act to designate monuments

without regard to their social, economic, or

environmental benefits and costs, and with no

obligation to consult Congress, other government

agencies, experts, or the public. In stark contrast, the

NMSA allows a sanctuary to be designated only if

strict standards and procedures are met, including

subjecting the proposal to rigorous environmental

review, and public notice and comment.

As detailed below, the two statutes are radically

different in their purposes and their requirements. In

that respect, and contrary to the lower court’s

conclusion, there is no meaningful “overlap” between

the two. App. A-12—A-14. Yet in recent years, only

one of those statutes has been used to designate and

prohibit activities within large marine areas, in an

obvious effort to evade the exacting requirements of

the other. In practice, the Antiquities Act has

swallowed the NMSA, rendering the latter

“inoperative or superfluous, void or insignificant.”

Corley v. United States, 556 U.S. 303, 314 (2009).

The Court should resolve an important federal

question that affects several industries, including

amici’s: In pursuing the praiseworthy goal of

protecting marine resources, may the President

abandon the very statute intended to achieve that

objective in favor of another, ill-suited statute, simply

because it is more expedient? As long as that question

8

remains unanswered, the NMSA—a law that sensibly

demands a deliberative and transparent approach to

marine designations, like the one at issue in this

case—will be relegated to the dustbin of history.

ARGUMENT

The D.C. Circuit Court of Appeals concluded that

the President’s novel interpretation of the Antiquities

Act did not make the NMSA redundant. App. A-13.

The court found that the statutes just overlap, offering

the President a choice as to which statute to employ

when identifying and protecting special marine

environments. App. A-12—A-14. In so finding, the

court deftly avoided the separation-of-powers problem

with the President’s effective repeal of the very

statute that governs its authority to protect marine

areas. See, e.g., Clinton v. City of New York, 524 U.S.

417, 438 (1998) (“There is no provision in the

Constitution that authorizes the President to enact, to

amend, or to repeal statutes.”). The D.C. Circuit Court

of Appeals was wrong. As the following chart

illustrates, and as explained in detail below, the

statutes differ dramatically in every important

respect:

Designator

and

Designation

Antiquities

Act

National Marine

Sanctuaries Act

The President

designates

“monuments.”

54 U.S.C. §

320301(a).

The Secretary of

Commerce

designates

“sanctuaries.” 16

U.S.C. § 1433(a).

9

Object of

protection

“objects of

historic or

scientific

interest …

situated on

land.” 54

U.S.C. §

320301(a).

Substantive

limitations

on

discretion to

designate

(1) designated

The Secretary

land in and

weighs 12 factors,

around

including the need

protected

for the sanctuary;

structure or

the area’s

object must

significance;

be “smallest

commercial and

area”

other uses of the

possible, and area; the “negative

(2) Congress

impacts” of

must

restrictions on

authorize any

“incomeproposed

generating

extension or activities”; and the

establishment

sanctuary’s

of Wyoming

“socioeconomic

monuments.9 effects.” 16 U.S.C

54 U.S.C. §

§§ 1433(b)(1).

320301(b),

(d).

Consultation

requirement

None

“any discrete area

of the marine

environment … of

special national

significance.” 16

U.S.C. § 1433(a).

The Secretary

must, inter alia,

submit a

Another statute limits the power to declare monuments in

Alaska. 16 U.S.C. § 3213(a).

9

10

sanctuary

proposal to

Governors of

affected states and

Congress, who can

effectively veto the

proposal. 16 U.S.C

§§ 1433(b)(2),

1434.

Procedures

for

designation

By

proclamation,

at the

President’s

“discretion.”

54 U.S.C. §

320301(a).

Review of the

sanctuary

proposal under

NEPA, including

for economic

impacts; extensive

consultation;

public notice and

comment; public

hearing. 16 U.S.C

§ 1434.

The Antiquities Act is styled “[a]n Act For the

Preservation of American antiquities.” Antiquities Act

of 1906, Pub. L. 59-209, 34 Stat. 225 (codified at 54

U.S.C. §§ 320301-03). The Act starts by making it a

crime, punishable by a fine and/or imprisonment, to

“appropriate, excavate, injure, or destroy any historic

or prehistoric ruin or monument, or any object of

antiquity, situated on lands owned or controlled by the

government of the United States” without prior

authorization. Id. Against the backdrop of protecting

antiquities, the Act gives the President the power, “in

his discretion, to declare by public proclamation

11

historic landmarks, historic and prehistoric

structures, and other objects of historic or scientific

interest that are situated upon the lands owned or

controlled by the Government of the United States to

be national monuments.” Id.; see also 54 U.S.C. §

320301(a) (codified language).

Events leading up to the Act’s passage

corroborates the fact that its purpose is “to protect

ancient

and

prehistoric

American

Indian

archaeological sites on federal lands in the southwest

from looting.” John Yoo & Todd Gaziano, Presidential

Authority to Revoke or Reduce National Monument

Designations, 35 Yale J. on Reg. 617, 623 (2018).

While the focus of the Act is on the protection of “man

made artifacts” and “archaeological sites” (id. at 62425), the Act does allow the President to “reserve

parcels of land” as part of the monument designation,

“confined to the smallest area compatible with the

proper care and management of the objects to be

protected.” 54 U.S.C. § 320301(b). But “the allowance

for small historic landmarks was not meant to include

vast scenic or geological parks,” let alone millions of

acres of ocean beyond the sovereign borders of the

United States. Yoo & Gaziano, supra, at 624-25.

Two scholars who extensively researched the

history and purpose of the Antiquities Act conclude

that the Act’s application is limited to “protecting sites

made historic by human endeavors and not geologic

‘history.’” Id. at 625. Thus, in addition to structures or

objects of “antiquity,” and consistent with the Act’s

text and purpose, the President may make a

“monument” of an “historic battlefield, an historic

12

home or treaty site, or a historic stop on the Oregon

Trail or other well-known marker on a journey.” Id.

Further, the President’s authority under the Act

to reserve land is only ancillary to, and strictly defined

by, the designated structure or object. As noted above,

the “limits of [reserved] parcels shall be confined to

the smallest area compatible with the proper care and

management of the objects to be protected.” 54 U.S.C.

§ 320301(b). Thus, when it passed the Act, Congress

never could have contemplated its use to designate, as

an activity-restricting “monument,” millions upon

millions of acres of land, let alone vast ocean areas.

One exchange on the floor of the U.S. House of

Representatives between a congressman and the Act’s

sponsor (Representative John F. Lacey) highlights

this indisputable fact:

Mr. STEPHENS of Texas. How much

land will be taken off the market in the

Western States by the passage of the

bill?

Mr. LACEY. Not very much. The bill

provides that it shall be the smallest

area necessary for the care and

maintenance of the objects to be

preserved.

Mr. STEPHENS of Texas. Would it be

anything like the forest-reserve bill, by

which seventy or eighty million acres of

land in the United States have been tied

up?

13

Mr. LACEY. Certainly not. The object is

entirely different. It is to preserve these

old objects of special interest and the

Indian remains in the pueblos in the

Southwest, whilst the other serves the

forests and the water courses.

40 Cong. Rec. 7888 (June 6, 1906) (cited and discussed

by Yoo & Gaziano, supra, at 626 n.36).

The Act imposes no substantive or procedural

conditions on the President’s ability to designate

monuments. That should come as no surprise. The

Act’s text and purpose make clear that the President

has only limited authority to designate certain objects

that are bona fide antiquities, as well as a small area

of land in or around them, as “monuments.” Given

that narrow scope of authority, the Congress sensibly

deemed it unnecessary to impose on the President

extensive substantive and procedural requirements

before designating a monument.

Congress’ hands-off approach in the Antiquities

Act stands in stark contrast to the more deliberative

approach it took over sixty-five years later in the

NMSA. The latter statute was passed in direct

response to the absence of a federal law for the

designation and protection of “areas of the marine

environment which are of special national

significance.” 16 U.S.C. § 1431(b)(1). In its report on

the bill, a congressional committee underscored “the

need to create a mechanism for protecting certain

important areas of the coastal zone from intrusive

activities by man,” which “is not met by any legislation

now on the books.” William J. Chandler & Hannah

Gillelan, The History and Evolution of the National

14

Marine Sanctuaries Act, 34 Envtl. L. Reporter 10505,

10524 (2004) (quoting H.R. Rep. No. 92-361, at 15); id.

at 10539 (noting a 1981 U.S. Government Accounting

Office report that the NMSA “fills ‘gaps’ in federal

regulatory authority affecting the protection of

marine resources,” because “it can offer benefits not

available under other federal laws”—including,

according to the article, the Antiquities Act). The

NMSA’s legislative findings note that efforts thus far

“have been directed almost exclusively to land areas

above the high-water mark.” 16 U.S.C. § 1431(a)(1).

Thus, the consensus at the time was that the

presidential authority to declare monuments under

the Antiquities Act did not reach marine areas and

resources, such as the 3.2 million acres of Atlantic

Ocean covered by the Proclamation at issue in this

case.

To fill that gap, the NMSA authorizes the

Secretary of Commerce to “designate any discrete area

of the marine environment as a national marine

sanctuary.” Id. § 1433(a). The Act’s focus is on the

protection, not of land-based “structures” and

“objects,” but of the “marine environment” and marine

“resource[s].” Id.; United States v. Great Lakes Dredge

& Dock Co., 259 F.3d 1300, 1303 (11th Cir. 2001)

(upholding liability under the Act for damage to “sea

bottom” and “sea grasses,” which were deemed to be

sanctuary resources); United States v. M/V Miss

Beholden, 856 F. Supp. 668, 670 (S.D. Fla. 1994)

(granting summary judgment on defendant’s liability

for damage to coral reefs, a sanctuary resource). “The

language in the NMSA indicates that Congress

intended it as the federal government’s main vehicle

for marine resource protection.” Joseph Briggett,

15

Comment, An Ocean of Executive Authority: Courts

Should Limit the President's Antiquities Act Power To

Designate Monuments in the Outer Continental Shelf,

22 Tul. Envtl. L.J. 403, 417 (2009).

Significantly, the NMSA imposes rigorous

substantive and procedural requirements. As one

scholar put it, “[s]anctuary designation under the Act

involves highly complex and time-consuming

procedures.” Peter H. Morris, Monumental Seascape

Modification Under the Antiquities Act, 43 Envtl. L.

173, 184-95 (2013). Those procedures “promote

pluralistic consensus-building over swift action.” Jeff

Brax, Zoning the Oceans: Using the National Marine

Sanctuaries Act and the Antiquities Act to Establish

Marine Protection Areas and Marine Reserves in

America, 29 Ecology L.Q. 71, 87 (2002).

First, the Secretary must consider twelve factors

in assessing the benefits and costs of a sanctuary

designation. 16 U.S.C. § 1433(b)(1). Factors include

the qualities and significance of the area proposed for

designation, the need for a sanctuary there, the

negative impacts resulting from restrictions on

income-generating activities in the sanctuary, and the

socioeconomic effects of sanctuary designation. Id.

Before the Secretary can designate a sanctuary, it

must make adequate findings that the designation is

appropriate in light of those factors. Id. § 1433(a).

The NMSA also requires the Secretary to engage

in extensive consultation with numerous federal and

state bodies and officials. 16 U.S.C. § 1433(b)(2). In

particular, the Secretary must consult with

congressional committees, various Executive Branch

officials, State and local government officials and

16

agency heads who “will or are likely to be affected by

the establishment of the areas as a national marine

sanctuary,” officials of any Regional Fishery

Management Council that might be affected, and

“other interested persons.” Id. The consultation

requirement ensures that there is broad political

consensus and support in favor of the proposed

sanctuary, including by those whose constituencies

are most interested and affected by the proposal.

The NMSA also imposes a formal public notice

requirement. For example, the Secretary must issue

notice of its sanctuary proposal, proposed regulations,

and draft management plan in the Federal Register.

16 U.S.C. § 1434(a)(1)(A). At the same time, the

Secretary must also submit “draft sanctuary

designation documents” to two congressional

committees, as well as the Governor of each State in

which any part of the sanctuary would be located. Id.

§ 1434(a)(1)(C). Those documents include the draft

management plan, a draft environmental impact

statement (“EIS”) prepared pursuant to the National

Environmental Policy Act (“NEPA”), maps of the

sanctuary’s proposed boundaries, and an assessment

of the twelve factors under section 1433(b)(1). Id. §

1434(a)(2). The congressional committees receiving

those documents may each hold hearings on the

proposal and issue a report to the Secretary, which the

Secretary must consider before publishing a notice of

designation. Id. § 1434(a)(6). In addition, no earlier

than 30 days following notice in the Federal Register,

the Secretary must hold at least one public hearing in

the coastal area or areas that will be most affected by

the proposed sanctuary in order to receive public

input. Id. § 1434(a)(3).

17

Finally,

after

completing

the

required

consultation and the publication of a notice of

proposal, the Secretary must follow certain

procedures for formally designating the sanctuary.

Again, the Secretary must publish in the Federal

Register notice of designation, together with the final

regulations, and submit that notice to Congress. Id. §

1434(b)(1). The Secretary must advise the public of

the availability of the draft management plan and

final EIS. Id. Either the Congress or the Governor of

an affected state may block a designation or any of its

terms before it goes into effect. Id.

Again, the Antiquities Act, which the President

has used in this case to designate 3.2 million acres of

ocean, contains none of these substantive and

procedural safeguards. The two statutes do not

overlap in any legally relevant way, as the D.C.

Circuit found. They are different in their legislative

purposes, in the objects they seek to protect, and in

their standards and procedures for designation.

“The standard designation process laid out in the

NMSA is lengthy and entails exceptional stakeholder

involvement.” Jason Patlis et al., The National Marine

Sanctuary System: The Once and Future Promise of

Comprehensive Ocean Governance, 44 Envtl. L.

Reporter 10932, 10937 (2014). And that’s a good thing.

By providing standards and procedures for

designating sanctuaries, the NMSA “is more likely to

create comprehensive sanctuaries that work because

it involves all interested parties.” Briggett, supra, at

417. That “buy in” from stakeholders and members of

the public who know their voices have been heard

before a sanctuary is designated makes it more likely

18

that prohibitions and restrictions associated with the

sanctuary will be respected. Id.

With the President’s new-found “authority” to

proclaim marine sanctuaries under the Antiquities

Act, NMSA has effectively become a dead letter. Why

seek congressional, State, or stakeholder input and

approval for a proposed designation, or subject it to

extensive environmental review under NEPA, when a

simple, unilateral proclamation under the Antiquities

Act will do? The Antiquities Act of 1906 may be a

convenient tool to designate marine sanctuaries, but

presidential invocation of that statute for that

purpose defies congressional authority and intent.

The Court should grant certiorari to consider the

important federal question whether the 2016

Proclamation, and the purported authority under

which it was issued, violate basic separation-ofpowers principles.

CONCLUSION

For these reasons, and those stated in the

petition, the petition should be granted.

DATED: August 2020.

Respectfully submitted,

PAUL J. BEARD II

Counsel of Record

FisherBroyles LLP

4470 W. Sunset Blvd.

Suite 93165

Los Angeles, CA 90027

(818) 216-3988

paul.beard@fisherbroyles.com

Counsel for Amici Curiae