BAR HARBOR — Zack Klyver, a former Bar Harbor Whale Watch naturalist and co-founder of consulting firm Blue Planet Strategies, is part of a group suing President Donald Trump over his recent proclamation opening a national marine monument to commercial fishing.
Plaintiffs in the action,filed June 16 in federal district court, are Klyver, the Conservation Law Foundation, the Natural Resources Defense Council and the CenterFor Biological Diversity.
In addition to his consulting work, Klyeroperates an eco-tourism business that has benefited from the commercial fishing ban, according to the lawsuit.
The monument, located about 130 miles off the coast of Cape Cod, is theonly marine monument in the U.S. Atlantic Ocean.
The 2016 designation was intended to preserve and protect unique underwater canyons and the diverse ecosystems they support.Most commercial fishing was banned inside the 4,900-square-mile area;commercial crabbing and lobstering were scheduled to end in 2023.
Plaintiffs say the canyons and seamounts area provides a critical winter feeding ground for Maine’s breeding population of Atlantic puffins, and that commercial fishing threatens sensitive fauna that serve as the basis for the ocean ecosystem.
“Having grown up in a fishing family in Eastport, I care deeply about sustainable coastal communities and what makes Maine a special place to live and visit,”Klyver wrote in a 2017 op-ed in the Bangor Daily News. “But objections from fishermen to this monument are misguided.
“Not only is this area one of the most lightly fished in our region — making itan ideal place to set aside — but fishermen even stand to benefit from the new protections,” he wrote. “Closed ocean areas produce even more fish and crustaceans, which can be caught by fishermen when they spill over into surrounding areas.”
Trump’s proclamation, the plaintiffs argue, violates federal law because while a president can create protections for national monuments under the U.S. Antiquities Act, only Congress can remove them.
“Congress has used its authority to abolish or remove acreage from national monuments on several occasions,” Congressional Research Service attorney Alexandrea Wyatt wrote in a 2016 report cited by the plaintiffs.
“It appears that presidential authority may be more constrained. No President has ever abolished or revoked a national monument proclamation, so the existence or scope of any such authority has not been tested in the courts.However, some legal analyses since at least the 1930s have concluded that the Antiquities Act, by its terms, does not authorize the President to repeal proclamations.”
Presidents have “deleted acres” from national monuments, Wyatt wrote, and can “modify the management” of national monuments, “although the outer bounds of this authority, too, appear to be untested.”
In a statement, Bob Vanasse, executive director of fishing advocacy group Saving Seafood’s National Coalition for Fishing Communities, noted that the proclamation will still require commercial fishing to be managed under the Magunson-Stevens Act, a federal law governing marine fisheries, and does not modify the monument in any other way.
“(The Conservation Law Foundation) argues that President Trump’s modification of the monument created by President Obama is illegal,” Vanasse said. “But President Obamaexercised the power to modify monuments created by his predecessors to expand Pacific marine monuments created by President Bush.
“It would seem that CLF’s position is that it is legal for a president to modify monuments created by a predecessor when CLF agrees with the modification, but illegal when CLF disagrees with the modification.”
National monuments are part of the Department of the Interior. In December 2017, then-Interior Secretary Ryan Zinke recommended allowing commercial fishing to resume in the 4,900-square-mile area.
New Interior Secretary David Bernhardt was on hand for Trump’s announcement of the proclamation during his June 5 visit to Maine.
At the roundtable with members of the fishing industry, Cutler lobsterman Kristan Porter, president of the Maine Lobstermen’s Association, said a more pressing concern for the Maine lobster industry is pending regulations and lawsuits having to do with protections for the endangered North Atlantic right whale.
In response, Trump reportedly ordered Bernhardt to find a solution to the whale issue. But the Department of the Interior does not regulate marine fisheries or marine mammal protection; NOAA Fisheries does, and that agency is part of the federal Department of Commerce.
Both Bernhardt and Ross are named in the suit challenging the marine national monument proclamation, along with NOAA Administrator Neil Jacobs, as the various “directives and requirements for managing the monument” fall to agencies that are part of the Department of the Interior as well as to NOAA.
Penelope Overton and Rachel Ohm of the Portland Press Herald contributed to this report.