Over on PLF’s Liberty Blog, I have a post on our lawsuit challenging the designation of the Northeast Canyons and Seamounts Marine National Monument under the Antiquities Act. Representing commercial fishermen from New England and the Mid-Atlantic, we argue that the statute’s authorization of monuments on “land owned and controlled by the Federal government” doesn’t give the President a blank check to declare the ocean off-limits.
President Obama’s proclamation establishing the monument forbids most fishing in the 5,000 square mile area—roughly the size of the Connecticut. What little fishing is allowed to continue is phased out over the next 7 years. This was all done with the stroke of a pen, without any obligation to consider impacts on New England’s iconic fishing communities or whether the designation would be a net environmental benefit.
From a libertarian environmentalist perspective, this situation is about as bad as it gets. The procedure for monument designations stinks. One person unilaterally destroys a wide swath of productive activity, often under circumstances that ensure he will avoid any political accountability. Monument designations, including this one, increase substantially at the end of a President’s second term, once elections cease being a motivator and dreams of building a legacy take precedence. What’s a voter to do?
The result is almost always severe restrictions on liberty. This monument forbids fishing. Traditional land monuments generally forbid any sort of mining, grazing, and a whole host of other productive activities. And these are not small restrictions on liberty. Despite the statute’s requirement that monuments be the “smallest area compatible” with the protection of the artifacts on which the monument is based, monuments are routinely huge. President Obama was the king of Antiquities Act abuse, declaring more monuments, covering more area, than any of his predecessors. All told, he declared more than 550 million acres off limits to productive use. Much of that area was ocean, which highlights the danger of allowing Presidents to stretch “land owned or controlled by the Federal government” so far that it includes the ocean. The relatively short history of ocean monuments shows that the President’s incentives are to make them as big as possible. This monument is the size of Connecticut. Between Presidents Bush and Obama, a monument twice the size of Texas surrounds the Hawaiian islands.
Ocean monument designations can also undermine environmental protection in the long term by shifting fishermen from healthy, sustainable fisheries towards more vulnerable ones. Over the last several decades, federal and state officials, working with fishermen, have gone to great lengths to reduce overfishing and ensure sustainability of fisheries near the United States. Under the Magnuson-Stevens Act, regional councils made up of federal, state, and industry representatives set catch limits that are allocated among the region’s fishermen and regulate fishing methods, equipment, and areas to minimize environmental impacts. This collaborative, economical approach has been very successful.
PLF’s clients in the case, for instance, have worked with their councils to reduce the number of permits, knowing that these costly sacrifices will pay off in the long run through healthier, sustainable fisheries. In the Georges Bank—the area where this monument is located—those efforts have lead to the recovery of the fishery, with the lobster population reaching record numbers. The monument designation punishes the fishermen for these successful conservation efforts by kicking them out of the fishery they helped recover.
Monument designations can also undermine conservation in another way. The fishermen who are displaced by the monument will have to go somewhere. Since the surrounding fisheries are not as healthy as the one designated as a monument, the result will be increased pressure on those fisheries. This monument will also push fishermen further in shore, where there’s a greater risk of incidental impacts on migrating whales and conflict with other fishermen’s gear.
Because of the economic and environmental concerns, the monument was opposed by many when it was proposed. Industry opposed it, for obvious reasons. But the Governors of Maine and Massachusetts did too. Congress held a hearing and passed a bill reiterating the monuments could not be designated in the ocean (which died in the Senate). Most tellingly, all of the fishery management councils together filed a letter criticizing the proposal on environmental grounds. According to the councils, monument designations undermine their efforts to sustainably manage fisheries.