Challenge Monument Designation in the U.S. Exclusive Economic Zone

The Antiquities Act

The Antiquities Act was signed into law by Theodore Roosevelt in 1906. The Act gives the President discretion to declare historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are owned or controlled by the federal government, to be national monuments.

The Monument

The Act has been used by Presidents to create 158 national monuments. These include the Grand Canyon National Monument established by President Theodore Roosevelt, the Hanford Reach National Monument established by President Clinton, and the Northwestern Hawaiian Islands Marine National Monument created by President George W. Bush reserving nearly 140,000 square miles of ocean off the Hawaiian coast.

Most recently, President Obama reserved 5,000 square miles of ocean and created the Northeast Canyons and Seamounts Marine National Monument (“the Monument”). The monument includes underwater canyons, and four extinct undersea volcanoes. The monument is home to ecosystems with marine flora and fauna.

Monumental Conflict

The Monument lies in the U.S. Exclusive Economic Zone (“EEZ”), an area of U.S. coastal waters where it exercises jurisdiction under international law. The EEZ was created by President Reagan in 1983 by issuing a proclamation for the United States sovereign rights for exploring, exploiting, conserving, and managing natural resources of the seabed and subsoil and super-adjacent waters and with regard to other activities for the economic exploitation and exploration of the zone.

Several Acts passed by Congress regulate activities in the U.S. EEZ. The National Marine Sanctuaries Act for example gives the federal government authority to designate and manage marine sanctuaries in the U.S. EEZ. The Magnuson-Stevens Fishery Conservation and Management Act also gives the federal government sovereign rights to explore, exploit, conserve, and manage all fish, within the U.S. EEZ.

Judicial History

A group of commercial-fishing associations (“Associations”) challenged the Monument’s designation. They argued President Obama “exceeded his statutory authority” under the Act because:
                          1.) the ocean is not “land under the Antiquities Act”; 2.) the Monument is not compatible with the                                        Sanctuaries Act; 3.) the U.S. EEZ is not “controlled” by the federal government; and 4.) the area is                                  not the “smallest area compatible” with management.

            The district court dismissed the Associations’ claims and concluded President Obama acted within his statutory authority in creating the Monument. The Associations appealed the judgment to the United States Court of Appeals.

Associations’ Arguments

                 The Associations’ first argument is that the Monument is not valid because it “is not land, as that term is ordinarily understood.” The Court of Appeals however agreed with the district court’s assertion that the Supreme Court has held the Antiquities Act includes submerged lands and waters associated with them. In the case, Cappaert v. United States, 426 U.S. 128, 131, 96 S. Ct. 2062, 2066, 48 L. Ed. 2d 523 (1976), the Court concluded the Antiquities Act gives the President authority to reserve land, and in United States v. California, 436 U.S. 32, 98 S. Ct. 1662, 56 L. Ed. 2d 94 (1978), the Supreme Court held the President “had the power under the Antiquities Act to reserve the submerged lands and waters.”

The U.S. Court of Appeals also disagreed with the Associations’ argument that interpreting the Antiquities Act to allow ocean-based monuments would render the Sanctuaries Act a “practical nullity.” The Court of Appeals stated the two Acts are critically different. The Antiquities Act limits national monuments to the “smallest area compatible,” while the Sanctuaries Act permits marine sanctuaries to occupy an area of any size that will allow “comprehensive and coordinated conservation and management [of natural resources and marine life].” The court rejected a similar argument in Mountain States Legal Found. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002), where the challengers’ arguments “missed the mark” because they misconceived “federal laws as not providing overlapping sources of protection.”

The Associations next argued that the Monument is invalid because the federal government does not have territorial sovereignty over the ocean floor where the Monument is located. However, the federal government can still have jurisdiction over activities in the EEZ even though it does not have territorial sovereignty. The U.S. Court of Appeals noted three factors that demonstrate that the federal government has authority to “control” the U.S. EEZ for purposes of the Act. First, the federal government has authority under international law to exercise restraining and directing influence over the U.S. EEZ. The federal government also has authority over the EEZ under domestic law, per the Reagan Proclamation establishing U.S. sovereign dominion over the EEZ. The third factor rests on the government’s “unrivaled authority over the EEZ.” The Court noted that the Supreme Court held the federal government has exclusive authority over this area of the ocean in Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1887, 204 L. Ed. 2d 165 (2019).

The Associations’’ final argument was that the Monument is not the “smallest area compatible” with management, as required by the Act. The U.S. Court of Appeals held that the Associations’ pleadings were insufficient. The Associations alleged that the Monument reserves areas of submerged land beyond the canyons and seamounts, but the court noted the Monument also “preserves the natural resources and ecosystems in and around them.” The Court concluded the Associations’ complaint failed to allege that some part of the Monument did not contain natural resources that President Obama sought to protect.


The U.S. Court of Appeals held in favor of the federal government on December 27, 2019. It held that the President had the authority to designate the national monument in the EEZ. If you have concerns over an environmental issue or would like more information about this case, please contact Whitcomb, Selinsky PC.

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