MA Lobstermen's Association v. Wilbur Ross ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 22, 2019 Decided December 27, 2019
No. 18-5353
MASSACHUSETTS LOBSTERMEN’S ASSOCIATION, ET AL.,
APPELLANTS
v.
WILBUR ROSS, IN HIS OFFICIAL CAPACITY AS SECRETARY OF
DEPARTMENT OF COMMERCE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00406)
Jonathan Wood argued the cause for appellants. With him
on the briefs were Damien M. Schiff and Joshua P. Thompson.
Avi Kupfer, Attorney, U.S. Department of Justice, argued
the cause for federal appellees. With him on the brief were
Jeffrey Bossert Clark, Assistant Attorney General, Eric Grant,
Deputy Assistant Attorney General, and Andrew C. Mergen
and Robert J. Lundman, Attorneys.
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Katherine Desormeau argued the cause for defendants-
intervenors-appellees. With her on the brief were Ian Fein,
Peter Shelley, and Roger Fleming.
David J. Berger and Justin A. Cohen were on the brief for
amici curiae Academic Scientists in support of appellees.
Paul M. Thompson was on the brief for amici curiae
Alison Rieser, et al. supporting defendant’s brief affirming the
District Court.
Nicholas A. DiMascio, Samantha R. Caravello, and Lori
Potter were on the brief for amicus curiae National Audubon
Society in support of appellees and supporting affirmance.
Andrew J. Pincus was on the brief for amici curiae Senator
Richard Blumenthal and Senator Brian Schatz in support of
appellees and for affirmance of the District Court’s judgment.
Douglas W. Baruch was on the brief for amici curiae
Ocean and Coastal Law Professors in support of defendants-
appellees and defendants-intervenors-appellees and
affirmation.
Before: TATEL and MILLETT, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Acting pursuant to the Antiquities
Act, 54 U.S.C. §§ 320301 et seq., President Obama established
the Northeast Canyons and Seamounts Marine National
Monument to protect “distinct geological features” and
“unique ecological resources” in the northern Atlantic Ocean.
Proclamation No. 9496, 3 C.F.R. 262, 262 (2017) (“Monument
3
Proclamation”). Several commercial-fishing associations
challenged the creation of the Monument, arguing that the
President exceeded his statutory authority. The district court
disagreed and dismissed the complaint. With a minor
alteration, we affirm.
I.
“[A] statute of historical importance for natural resource
conservation and for archeological and historic preservation in
the United States,” the Antiquities Act grew out of a movement
to protect the nation’s unique historical, archeological, and
scientific heritage. Bruce Babbitt, Introduction, in The Story of
the Antiquities Act (Ronald F. Lee, 2001). “[B]eg[inning] in
1879,” “[a] whole generation of dedicated . . . scholars,
citizens, and members of Congress . . . through [their]
explorations, publications, exhibits, and other activities,” id.
(internal quotation marks omitted), pushed for the enactment
of “national preservation legislation,” culminating in 1906 with
the passage of the Antiquities Act, Ronald F. Lee, The
Antiquities Act, 1900–06, in The Story of the Antiquities Act
(Ronald F. Lee, 2001). To this day, the Act remains “a major
part of the legal foundation for archeological, historic, and
natural conservation and preservation in the United States.”
Babbitt, supra.
The Act provides that “[t]he President may, in the
President’s discretion, declare by public proclamation historic
landmarks, historic and prehistoric structures, and other objects
of historic or scientific interest that are situated on land owned
or controlled by the Federal Government to be national
monuments.” 54 U.S.C. § 320301(a). The Act also authorizes
the “President [to] reserve parcels of land as a part of the
national monuments,” so long as reservations are “confined to
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the smallest area compatible with the proper care and
management of the objects to be protected.” Id. § 320301(b).
Over the last century, Presidents have created a total of 158
national monuments, protecting a wide range of the nation’s
historic and scientific resources. National Park Service, List of
National Monuments, https://www.nps.gov/archeology/sites/
antiquities/monumentslist.htm. For example, President
Theodore Roosevelt established the Grand Canyon National
Monument, reserving some 800,000 acres of land in the
Arizona desert to protect “the greatest eroded canyon within
the United States.” Proclamation No. 794, 35 Stat. 2175, 2175
(Jan. 11, 1908). More recently, President Clinton established
the Hanford Reach National Monument in Washington to
protect “the largest remnant of the shrub-steppe ecosystem that
once blanketed the Columbia River Basin.” Proclamation No.
7319, 3 C.F.R. 102, 102 (2001). And President George W.
Bush created the Northwestern Hawaiian Islands Marine
National Monument—later renamed the Papahānaumokuākea
Marine National Monument, Proclamation No. 8112, 3 C.F.R.
16, 16 (2008)—reserving nearly 140,000 square miles of ocean
off the Hawaiian coast to protect the area’s “dynamic reef
ecosystem, . . . home to many species of coral, fish, birds,
marine mammals, and other flora and fauna.” Proclamation No.
8031, 3 C.F.R. 67, 67 (2007).
Continuing in that tradition, President Obama reserved
roughly 5,000 square miles of ocean to create the Northeast
Canyons and Seamounts Marine National Monument (“the
Monument”). Monument Proclamation, 3 C.F.R. at 262. Lying
some 130 miles southeast of Cape Cod, the Monument consists
of two non-contiguous units. Id.; see infra Figure 1. The first
covers three underwater canyons that “start at the edge of the
geological continental shelf and drop from 200 meters to
thousands of meters deep.” Monument Proclamation, 3 C.F.R.
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at 262. The second covers four extinct undersea volcanoes—
called seamounts—that rise “thousands of meters from the
ocean floor.” Id. “Because of the steep slopes of the canyons
and seamounts, oceanographic currents that encounter them
create . . . upwelling” that “lift[s] nutrients . . . from the deep to
sunlit surface waters,” fueling “an eruption of [plankton] that
form[s] the base of the food chain.” Id. at 262–63. “Together
the geology, currents, and productivity create diverse and
vibrant ecosystems” home to assorted marine flora and fauna,
including rare species of deep-sea corals. Id. at 263.
Accordingly, the Monument protects both “the canyons and
seamounts themselves” as well as “the natural resources and
ecosystems in and around them.” Id. at 262.
Significantly for the issue before us, the Monument lies
entirely in the U.S. Exclusive Economic Zone (“EEZ”), the belt
of ocean between 12 and 200 nautical miles off the nation’s
coasts over which the United States exercises dominion under
international law. See Restatement (Third) of Foreign Relations
Law § 511(d), cmt. b (“Restatement”) (explaining that costal
states exercise sovereign rights over their exclusive economic
zones). President Reagan created the U.S. EEZ in 1983 by
issuing a proclamation that claimed for the United States
sovereign rights for the purpose of exploring,
exploiting, conserving and managing natural
resources, both living and non-living, of the
seabed and subsoil and the superjacent waters
and with regard to other activities for the
economic exploitation and exploration of the
zone, such as the production of energy from the
water, currents and winds; and [] jurisdiction
with regard to the establishment and use of
artificial islands, and installations and structures
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having economic purposes, and the protection
and preservation of the marine environment.
Proclamation No. 5030, 3 C.F.R. 22, 23 (1984) (“Reagan
Proclamation”). “The United States . . . exercise[s] these
sovereign rights and jurisdiction in accordance with the rules
of international law.” Id.
Consistent with that authority and pursuant to several
statutes, the federal government regulates a range of activity in
the U.S. EEZ. The National Marine Sanctuaries Act, 16 U.S.C.
§§ 1431 et seq. (“Sanctuaries Act”), authorizes the federal
government to designate and manage marine sanctuaries in the
“United States exclusive economic zone.” Id. § 1437(k). The
Magnuson-Stevens Fishery Conservation and Management
Act, 16 U.S.C. §§ 1801 et seq., empowers the federal
government to “exercise[] sovereign rights for the purposes of
exploring, exploiting, conserving, and managing all fish,
within the exclusive economic zone.” Id. § 1801(b)(1). And the
Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331 et seq.,
provides a framework for the federal government to exploit the
seabed’s natural resources within the “outer Continental
Shelf,” defined to include the U.S. EEZ. Id. § 1331(a); see id.
(defining the “outer Continental Shelf” as “all submerged
lands” beyond the lands reserved to the States up to the edge of
the United States’ “jurisdiction and control”); see also Dep’t of
the Interior, Office of the Solicitor, Authority to Issue Outer
Continental Shelf Mineral Leases in the Gorda Ridge Area, 92
Interior Dec. 459, 487 (May 30, 1985) (explaining that the
statutory definition of “outer Continental Shelf” includes the
submerged lands within the EEZ).
In this case, several commercial-fishing associations (“the
Fishermen”) challenged the Monument’s designation, arguing
that the President “exceeded his statutory authority” under the
7
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 reserved is not the “smallest area
compatible” with management. Massachusetts Lobstermen’s
Association v. Ross, 349 F. Supp. 3d 48, 51, 58 (D.D.C. 2018).
Several conservation groups intervened to defend the
Monument. Id. at 51.
The district court concluded that the President acted within
his statutory authority in creating the Monument and dismissed
the Fishermen’s claims. Id. It first rejected the Fishermen’s
argument that the Monument “is per se invalid because it lies
entirely in the ocean,” explaining that “Supreme Court
precedent, executive practice, and ordinary meaning” establish
that the Act reaches submerged land. Id. at 55–56. Second, the
district court found that the President’s interpretation of “the
Antiquities Act does not render the Sanctuaries Act redundant”
because the two statutes “address environmental
conservation . . . in different ways and to different ends.” Id. at
59. Third, the court found that the federal government
“adequately controls the EEZ for purposes of the Act,” id. at
60, not only because it “exercises substantial general authority
over the EEZ” and “possesses specific authority to regulate the
EEZ for purposes of environmental conservation,” but also
because “no private person or sovereign entity rivals the federal
government’s dominion over the EEZ,” id. at 64. And finally,
the district court addressed the Fishermen’s “fact-specific
arguments about the boundaries of the Monument,” observing
that “to obtain judicial review of claims about a monument’s
size, plaintiffs must offer specific, nonconclusory factual
allegations establishing a problem with its boundaries” and that
the Fishermen’s “allegations here d[id] not rise to that level.”
Id. at 67.
 8
On appeal, the Fishermen press the same claims as they
did in the district court: that the Monument is not “land,” not
compatible with the Sanctuaries Act, not “controlled” by the
federal government, and not the “smallest area compatible”
with management.
II.
Our court set out a framework for reviewing challenges to
national monument designations in two companion cases,
Mountain States Legal Foundation v. Bush, 306 F.3d 1132
(D.C. Cir. 2002), and Tulare County v. Bush, 306 F.3d 1138
(D.C. Cir. 2002). There, we drew a distinction between two
types of claims: those justiciable on the face of the
proclamation and those requiring factual development. The
former are resolved “as a matter of law” because they turn on
questions of statutory interpretation. Tulare, 306 F.3d at 1140.
As for the latter, although the precise “scope of judicial review”
remains an open question, at a minimum, plaintiffs’ pleadings
must contain plausible factual allegations identifying an aspect
of the designation that exceeds the President’s statutory
authority. Mountain States, 306 F.3d at 1133. The Fishermen’s
first three claims—that the Monument is not “land,” not
compatible with the Sanctuaries Act, and not “controlled” by
the federal government—can be judged on the face of the
proclamation and resolved as a matter of law. Their last claim
requires plausible factual allegations that the Monument is not
the “smallest area compatible” with management to survive
dismissal. We consider each in turn.
A.
The Fishermen first contend that the Monument is invalid
because it “is not land, as that term is ordinarily understood.”
Appellants’ Br. 22. This argument need not detain us long
because, as the district court explained, the Supreme Court has
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consistently held that the Antiquities Act reaches submerged
lands and the waters associated with them. In Cappaert v.
United States, 426 U.S. 128 (1976), the Court determined that
the Antiquities Act “g[a]ve the President authority to reserve”
Devil’s Hole—an underground pool of water near Death
Valley that housed a rare species of fish—as part of Death
Valley National Monument, rejecting the contention that the
Act protected “archeologic sites” only. Id. at 141–42. The
Court emphatically extended the point in United States v.
California, 436 U.S. 32 (1978): “[t]here can be no serious
question that the President . . . had power under the Antiquities
Act to reserve the submerged lands and waters” of Channel
Islands National Monument. Id. at 36. “Although the
Antiquities Act refers to ‘lands,’” the Court explained, “it also
authorizes the reservation of waters located on or over federal
lands.” Id. at 36 n.9. And in Alaska v. United States, 545 U.S.
75 (2005), which concerned Glacier Bay National Monument,
the Court again made clear that “the Antiquities Act empowers
the President to reserve submerged lands.” Id. at 103.
The Fishermen insist that the Supreme Court’s
pronouncements in Cappaert, California, and Alaska are non-
binding dicta because, they say, the cases concerned only
whether Presidents intended to include submerged lands in
their proclamations, not whether they had the authority to do
so. The Fishermen are mistaken. At least in Alaska, the
Supreme Court’s holding expressly included its determination
that the Antiquities Act reaches submerged lands. “[A]
necessary part of [its] reasoning,” the Court explained, was that
“in creating Glacier Bay National Monument the United States
had reserved the submerged lands underlying Glacier Bay and
the remaining waters within the monument’s boundaries.” 545
U.S. at 100–01. Had the President lacked authority to reserve
the submerged lands in the first place, the Court would have
had no reason to inquire into whether he had, in fact, intended
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to do so. Cf. United States v. Windsor, 570 U.S. 744, 759 (2013)
(explaining that legal conclusions that are “necessary
predicate[s]” to a court’s holding are “not dictum”). In any
event, “even if technically dictum,” “carefully considered
language of the Supreme Court . . . generally must be treated
as authoritative.” Sierra Club v. EPA, 322 F.3d 718, 724 (D.C.
Cir. 2003) (internal quotation marks omitted).
Although the parties advanced, and the district court
considered, other arguments about whether the Act reaches
submerged lands—including arguments about historic practice
and ordinary meaning—we need not wade into those waters, so
to speak. On-point Supreme Court precedent resolves this
claim.
B.
The Fishermen next argue that interpreting the Antiquities
Act to permit ocean-based monuments would render the
Sanctuaries Act “a practical nullity.” Appellants’ Br. 27.
Congress enacted the Sanctuaries Act “to identify and
designate as national marine sanctuaries areas of the marine
environment which are of special national significance and to
manage these areas as the National Marine Sanctuary System.”
16 U.S.C. § 1431(b)(1). Because past conservation efforts
“ha[d] been directed almost exclusively to land areas above the
high-water mark,” Congress crafted the Sanctuaries Act to
“complement[] existing regulatory authorities” by protecting
“certain areas of the marine environment possess[ing]
conservation, recreational, ecological, historical, scientific,
educational, cultural, archeological, or esthetic qualities.” Id.
§ 1431(a)(1), (a)(2), (b)(2). To that end, the Sanctuaries Act
empowers the Secretary of Commerce to “designate any
discrete area of the marine environment as a national marine
sanctuary and promulgate regulations implementing the
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designation,” id. § 1433, but only after complying with certain
procedural requirements, id. §§ 1433–1434.
According to the Fishermen, by setting out a specific
process to protect marine environments, the Sanctuaries Act
precludes Presidents from using the Antiquities Act to do the
same. As the Fishermen see it, a President’s use of the
Antiquities Act to create marine monuments renders the
Sanctuaries Act “entirely redundant” because “[a]ny area that
could be designated as a marine sanctuary could be more easily
designated as an ocean monument . . . with the latter approach
evading all of the substantive and procedural requirements of
the former.” Appellants’ Br. 25, 29.
The Fishermen are again mistaken. Applying the
Antiquities Act to oceans does not nullify the Sanctuaries Act
for a simple reason: the two statutory schemes differ in several
critical respects. Whereas the Antiquities Act limits national
monuments to the “smallest area compatible” with monument
management, 54 U.S.C. § 320301(b), the Sanctuaries Act
permits marine sanctuaries to occupy an area of any size “that
will permit comprehensive and coordinated conservation and
management,” 16 U.S.C. § 1433(a)(5). Whereas the Antiquities
Act protects “objects of historic or scientific interest,” 54
U.S.C. § 320301(a), the Sanctuaries Act protects areas’
“recreational,” “cultural,” or “human-use values,” 16 U.S.C.
§ 1433(a)(2). And whereas the Antiquities Act focuses on
protecting specific “objects” of historic or scientific interest, 54
U.S.C. § 320301(a), the Sanctuaries Act focuses on designating
and managing “areas as the National Marine Sanctuary
System,” 16 U.S.C. § 1431(b)(1). Thus, a marine sanctuary
may be larger, protect more diverse values, and serve different
overall goals than an ocean-based monument.
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Indeed, we rejected a nearly identical argument in
Mountain States, where the challengers asserted that the
President’s designation of six national monuments in the
western United States “def[ied] congressional intent regarding
the scope and purpose of ‘a host’ of other statutes enacted to
protect various archeological and environmental values.” 306
F.3d at 1138. We disagreed, explaining that the “contention
that the Antiquities Act must be narrowly construed in accord
with [the challengers’] view of Congress’s original intent
[regarding those statutes] misse[d] the mark” because it
“misconceive[d] federal laws as not providing overlapping
sources of protection” for environmental values. Id. The same
is true here: that the Antiquities and Sanctuaries Acts
“provid[e] overlapping sources of protection” for marine
environments neither requires the Antiquities Act to “be
narrowly construed” nor “def[ies] congressional intent
regarding the scope and purpose of [the Sanctuaries Act].” Id.
Contrary to the Fishermen’s contentions, then, ocean-
based monuments are perfectly compatible with the
Sanctuaries Act.
C.
Next, the Fishermen argue that the Monument is invalid
because the federal government does not control the area of
ocean where it is located. Recall that the statute gives the
President monument-creating authority over “land owned or
controlled by the Federal Government.” 54 U.S.C.
§ 320301(a). According to the Fishermen, by pairing “owned”
with “controlled,” Congress intended the two words to have
similar meanings, such that to “control[]” an area the federal
government’s authority there must be akin to its authority over
federally “owned” land. And, the Fishermen continue, the
13
federal government lacks control, so understood, over the U.S.
EEZ.
Once more, the Fishermen misread the statute. Generally,
“[c]ontrol and ownership . . . are distinct concepts.” Dole Food
Co. v. Patrickson, 538 U.S. 468, 477 (2003). Congress made
that distinction plain here by separating “controlled” and
“owned” with the conjunction “or,” signaling that “the
words . . . are to be given separate meanings.” United States v.
Woods, 571 U.S. 31, 45 (2013) (internal quotation marks and
citations omitted). Nothing about the proximity of “owned” to
“controlled” changes that: “[t]hat a word may be known by the
company it keeps is . . . not an invariable rule, for the word may
have a character of its own not to be submerged by its
association.” Graham County Soil & Water Conservation
District v. U.S. ex rel. Wilson, 559 U.S. 280, 288 (2010)
(quoting Russell Motor Car Co. v. United States, 261 U.S. 514,
519 (1923)). Accordingly, the federal government may
“control[]” land even if it lacks authority akin to ownership
there. And, here, three factors convince us that the federal
government exercises sufficient authority to “control[]” the
U.S. EEZ for purposes of the Act.
First, “under international law,” the federal government
exerts “significant” “authority to exercise restraining and
directing influence over the EEZ.” Administration of Coral
Reef Resources in the Northwest Hawaiian Islands, 24 Op.
O.L.C. 183, 196–97 (2000) (“OLC Op.”). That power includes
“substantial authority” to achieve the specific goal advanced
here: “protecting the marine environment.” Id. at 197.
Second, the federal government possesses substantial
authority over the EEZ under domestic law. As noted, supra at
6, the Reagan Proclamation established U.S. sovereign
dominion over the EEZ “for the purpose of exploring,
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exploiting, conserving and managing natural resources, both
living and non-living, of the seabed and subsoil and the
superjacent waters,” as well as “jurisdiction with regard to . . .
the protection and preservation of the marine environment.”
Reagan Proclamation, 3 C.F.R. at 23. Consistent with that
authority, Congress has enacted several statutes regulating
extraction and conservation activities in the EEZ, including the
Sanctuaries Act, the Magnuson-Stevens Act, and the Outer
Continental Shelf Lands Act.
And finally, the federal government exercises unrivaled
authority over the EEZ. Although other nations may exercise
“the freedoms of navigation and overflight” as well as the
“freedom to lay submarine cables and pipelines” in the EEZ,
Restatement § 514(2), no other entity matches the “extensive”
“restraining and directing influence” exerted by the federal
government, OLC Op. at 196–97. No private entity owns any
portion of the EEZ, and no public entity possesses equivalent
sovereign rights there. Indeed, the Supreme Court recently
explained that “the Federal Government exercise[s] exclusive”
authority over this portion of the ocean. Parker Drilling
Management Services, Ltd. v. Newton, 139 S. Ct. 1881, 1887
(2019).
The federal government’s unrivaled authority under both
international and domestic law establishes that it “control[s]”
the EEZ for purposes of the Act. The Fishermen’s remaining
arguments to the contrary are unavailing.
The Fishermen first invoke Treasure Salvors, Inc. v. The
Unidentified Wrecked & Abandoned Sailing Vessel, 569 F.2d
330 (5th Cir. 1978), where the Fifth Circuit held that the
remains of a newly-discovered shipwreck “on the continental
shelf, outside the territorial waters of the United States” was
“not situated on lands owned or controlled by the United States
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under the provisions of the Antiquities Act.” Id. at 333 n.1, 340.
The Fishermen argue that Treasure Salvors’ “logic requires the
same conclusion in this case: that the [M]onument is not
located on land owned or controlled by the federal
government.” Appellants’ Br. 51. But Treasure Salvors
predated the Reagan Proclamation and thus never addressed
whether the federal government exercises control over the U.S.
EEZ. Accordingly, the decision carries no significance here.
Lastly, warning of a slippery slope, the Fishermen insist
that if the Act reaches the EEZ, then it also reaches “areas
clearly meant to be excluded, such as state and private lands.”
Appellants’ Reply Br. 32. But no such danger lurks in the
shadows of this opinion. The federal government controls the
EEZ, in part, because no other entity—public or private—
exerts competing influence there; the federal government’s
authority is “exclusive.” Parker, 139 S. Ct. at 1887. That,
however, is not true of state and private lands, where other
entities—namely, states and private parties—possess
competing authority, weakening any federal government claim
to exercise control over such lands.
D.
This brings us to the Fishermen’s final argument: that the
Monument is not, as required by the Act, the “smallest area
compatible” with management. 54 U.S.C. § 320301(b). In
Tulare County, we set forth the type of allegations required to
make out such a claim. That case concerned Giant Sequoia
National Monument, which protects “groves of giant sequoias,
the world’s largest trees, and their surrounding ecosystem.”
Tulare County, 306 F.3d at 1140. Challengers questioned the
monument’s boundaries, arguing that they were larger than
necessary because “[s]equoia groves comprise[d] only six
percent of the [m]onument[’s]” area. Tulare County v. Bush,
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317 F.3d 227, 227 (D.C. Cir. 2003) (per curiam). We
concluded that the challengers failed to state a claim because
the proclamation protected “natural resources present
throughout the [m]onument area,” meaning “[i]t was . . .
incumbent upon [the challengers] to allege that some part of
the [m]onument did not, in fact, contain natural resources that
the President sought to protect.” Id. The six-percent allegation,
we speculated, “might well have been sufficient if the President
had identified only [s]equoia groves for protection, but he did
not,” id.; he also protected “their surrounding ecosystem,”
Tulare County, 306 F.3d at 1140.
The Fishermen’s pleadings are similarly insufficient. They
allege only that the Monument reserves large areas of
submerged land beyond the canyons and seamounts. Although
those allegations “might well have been sufficient if the
President had identified only [the canyons and seamounts] for
protection, . . . he did not.” Tulare County, 306 F.3d at 227.
Instead, the Monument protects not only “the canyons and
seamounts themselves,” but also “the natural resources and
ecosystems in and around them.” Monument Proclamation, 3
C.F.R. at 262 (emphasis added). “It was therefore incumbent
upon [the Fishermen] to allege that some part of the Monument
did not, in fact, contain natural resources that the President
sought to protect.” Tulare County, 306 F.3d at 227. The
Fishermen failed to do so: the complaint contains no factual
allegations identifying a portion of the Monument that lacks the
natural resources and ecosystems the President sought to
protect.
Grasping at straws, the Fishermen assert that “[a]n
ecosystem is not an ‘object’ under the Antiquities Act.” Compl.
¶ 75, Joint Appendix 24–25. In Tulare County, however, we
expressly held that ecosystems are protectable “objects” under
the Act: “[i]nclusion of such items as ecosystems . . . in the
17
Proclamation did not contravene the terms of the statute by
relying on nonqualifying features.” 306 F.3d at 1142; cf.
Alaska, 545 U.S. at 99 (explaining that the President “create[d]
Glacier Bay National Monument,” in part, to protect “the
complex ecosystem of Glacier Bay”). Accordingly, the
Fishermen’s smallest-area claim fails.
III.
We end with a housekeeping matter. Although the district
court properly found that the Fishermen “failed to demonstrate
that the President acted outside his statutory authority” in
creating the Monument, it deemed such failure “jurisdictional”
and dismissed the complaint “under Rule 12(b)(1), rather
than Rule 12(b)(6).” Lobstermen’s Association, 349 F. Supp.
3d at 55. To be fair, we have been less than precise about the
basis for dismissing Antiquities Act cases. See, e.g., Tulare
County, 306 F.3d at 1140 (dismissing “for lack of subject
matter jurisdiction and for failure to state a claim upon which
relief may be granted pursuant to Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6)”). We now clarify that where,
as here, plaintiffs fail to make out legally sufficient claims
challenging national monument designations, those claims
should be dismissed pursuant to Rule 12(b)(6). Because district
courts possess subject-matter jurisdiction over challenges to
Antiquities Act designations under 28 U.S.C. § 1331, dismissal
of such challenges pursuant to Rule 12(b)(1) is inappropriate.
See Trudeau v. FTC, 456 F.3d 178, 185 (D.C. Cir. 2006)
(explaining that where litigants challenge the executive’s
exercise of statutory authority, “[s]ection 1331 is an
appropriate source of jurisdiction”). Accordingly, “[a]lthough
the district court erroneously dismissed the action pursuant to
Rule 12(b)(1), we c[an]”—and do—“nonetheless affirm” the
district court’s dismissal of the Fishermen’s complaint “based
on failure to state a claim under Federal Rule of Civil Procedure
18
12(b)(6).” EEOC v. St. Francis Xavier Parochial School, 117
F.3d 621, 624 (D.C. Cir. 1997).
So ordered.
Figure 1