In a ruling that could be a Pyrrhic victory for conservation groups in New England, the Supreme Court on Monday rejected a lawsuit brought by Massachusetts fishermen that challenged president Barack Obama’s creation of a vast marine monument in the Atlantic Ocean, the first of its kind off the East Coast.
Yet Chief Justice John Roberts in a concurring opinion raised significant concerns about the size of the Northeast Canyons and Seamounts Marine National Monument, a controversial, Connecticut-sized sanctuary that lies about 130 miles southeast of Provincetown.
Indeed, his sharply worded opinion provided a potential roadmap for a legal challenge against the monument and seemed to signal that the court would be willing to consider truncating or invalidating the 5,000 square miles of federally protected waters.
Roberts criticized Obama’s decision to use the 1906 Antiquities Act to designate the monument, which he described as “part of a trend of ever-expanding antiquities” that have become national monuments.
“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 wrote.
Roberts noted that the Antiquities Act originated as a response to the defacement of Pueblo ruins in the Southwest and provided a means for the “preservation of prehistoric antiquities.”
The monument “at issue in this case demonstrates how far we have come from indigenous pottery,” he wrote.
The lawsuit was filed against the Department of Commerce, which oversees the nation’s fisheries. Officials there declined to answer questions.
“We are aware of the decision, and we are reviewing it,” said Kate Goggin, a spokeswoman for the department’s National Marine Fisheries Service. The designation initially banned most commercial fishing but the Trump Administration lifted those restrictions last year.
Jonathan Wood, an attorney for the Massachusetts Lobstermen’s Association, the plaintiffs in the case, said he thought Roberts’ statement “strongly indicates his interest in strengthening judicial enforcement of the Antiquities Act’s limits.”
“If the court ultimately moves in the direction the chief suggests, it would necessarily call into question this monument and the other vast marine monuments,” he said.
The Lobstermen’s Association sued the Trump administration in 2017, arguing that Obama lacked the authority to create the monument. Two lower federal courts rejected that challenge and affirmed that the Antiquities Act authorizes the president to protect parts of the ocean as national monuments.
While the court’s decision on Monday did not change the monument’s legality, representatives of the fishing industry saw a silver lining.
“The chief justice has clearly framed the question that a lot of us have been asking: Does an expansive marine monument square with the plain meaning of the words in the Antiquities Act?” said Andrew Minkiewicz, an attorney at the Fisheries Survival Fund in Washington, D.C., who represents other fishermen who have contested the monument.
In denying the lobstermen’s petition to have their case heard, Roberts wrote that courts have yet to rule on how limits to a monument’s size apply to “such an imprecisely demarcated concept as an ecosystem.”
“The scope ... may warrant consideration — especially given the myriad restrictions on public use this purely discretionary designation can serve to justify,” Roberts wrote.
Kate Desormeau, a senior attorney for the Natural Resources Defense Council, disputed Roberts’ assertions.
“There is ample scientific support for Northeast Canyons and Seamounts’ boundaries,” she said. “In recent years, that rationale for the monument has only gotten stronger.”
Last June, president Donald Trump signed a proclamation allowing commercial fishing in the marine monument, which protects an estimated 54 species of deep-sea coral and hundreds of marine species, including endangered North Atlantic right whales and Kemp’s ridley sea turtles.
Trump’s decision could soon be overturned. On his first day in office, President Biden issued an executive order calling on the secretary of the Department of Interior to review Trump’s changes to the marine monument.
“Restoring protections is essential to safeguarding its fragile biological resources from industrial exploitation, bolstering the ecosystem’s resiliency in the face of a changing climate, and safeguarding this special place for generations to come,” Desormeau said.
But Roberts suggested that other lawsuits could offer the court an opportunity to challenge the monument.
“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.
Those words worried environmental advocates who spent years urging the federal government to protect the area.
“It’s concerning any time you get a statement like this from a justice, especially from the chief justice,” said Peter Shelley, senior counsel at the Conservation Law Foundation in Boston. “The tea leaves of this statement are going to be read closely by people with very different perspectives.”