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ORAL ARGUMENT REQUESTED No. 18-5353 UNITED STATES COURT of APPEALS for the DISTRICT of COLUMBIA CIRCUIT

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ORAL ARGUMENT REQUESTED No. 18-5353 UNITED STATES COURT of APPEALS for the DISTRICT of COLUMBIA CIRCUIT USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 1 of 96 ORAL ARGUMENT REQUESTED No. 18-5353 ________________________ UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT ________________________ MASSACHUSETTS LOBSTERMEN’S ASSOCIATION, et al., Appellants, v. WILBUR J. ROSS, JR., in his official capacity as Secretary of Department of Commerce, et al., Appellees. _______________________________ On Appeal from the United States District Court for the District of the District of Columbia Honorable James E. Boasberg, District Judge _______________________________ APPELLANTS’ OPENING BRIEF _______________________________ JONATHAN WOOD DAMIEN M. SCHIFF Pacific Legal Foundation JOSHUA P. THOMPSON 3100 Clarendon Blvd., Suite 610 Pacific Legal Foundation Arlington, Virginia 22201-5330 930 G Street Telephone: (202) 888-6881 Sacramento, California 95814 Facsimile: (916) 419-7747 Telephone: (916) 419-7111 Email: [email protected] Facsimile: (916) 419-7747 Email: [email protected] Email: [email protected] Attorneys for Appellants USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 2 of 96 Certificate as to Parties, Rulings, and Related Cases Pursuant to D.C. Circuit Rule 28(a)(1)(A), counsel for Appellants certify as follows: A. Parties The parties to this litigation in the district court were Massachusetts Lobstermen’s Association; Atlantic Offshore Lobstermen’s Association; Long Island Commercial Fishing Association; Garden State Seafood Association; Rhode Island Fishermen’s Alliance; Wilbur J. Ross, Jr., in his official capacity as Secretary of Department of Commerce; Benjamin Friedman, in his official capacity as Deputy Undersecretary for Operations for the National Oceanic and Atmospheric Association; Ryan Zinke, in his official capacity as Secretary of the Department of Interior; Donald J. Trump, in his official capacity as President of the United States; and Jane Doe, in her official capacity as Chairman for the Council on Environmental Quality. Defendants-Intervenors in this litigation in the district court were Natural Resources Defense Council; Conservation Law Foundation; Center for Biological Diversity; and R. Zack Klyver. i USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 3 of 96 Amicus in this litigation in the district court were Alson Rieser, Donna R. Christie, Josh Eagle, and Law Professors, ECF Doc. 39 at Appendix A. Pursuant to Federal Rule of Appellate Procedure 26.1 and Circuit Rule 26.1, Counsel for Appellants Massachusetts Lobstermen’s Association, Atlantic Offshore Lobstermen’s Association; Long Island Commercial Fishing Association; Garden State Seafood Association; and Rhode Island Fishermen’s Alliance also certifies that Appellants have no parent companies, subsidiaries, or affiliates that have issued shares to the public. B. Rulings Under Review The ruling under review is the Order and Memorandum Opinion entered by the district court, Judge James E. Boasberg, on October 5, 2018 [Doc #46 and 47], App. 54-86, granting Defendants’ motion to dismiss. The Memorandum Opinion has not been published in the Federal Supplement, but is available on Westlaw at 2018 WL 4853901. C. Related Cases This case has not previously been filed in this Court and Counsel is unaware of any related cases. ii USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 4 of 96 Table of Contents Certificate as to Parties, Rulings, and Related Cases ............................... i Table of Authorities ................................................................................... v Glossary .................................................................................................. xiii Statement of Jurisdiction .......................................................................... 1 Statement of the Issues ............................................................................. 2 Statutes and Regulations .......................................................................... 2 Introduction ............................................................................................... 3 Background ................................................................................................ 6 Standard of Review ................................................................................. 20 Summary of Argument ............................................................................ 21 Argument ................................................................................................. 23 I. The monument violates the separation of powers ...................... 23 II. The Antiquities Act does not apply to the ocean beyond the territorial seas ........................................................... 35 A. The ordinary meaning of “land” excludes the ocean .................. 35 B. The federal government does not “control” the ocean beyond the territorial sea ........................................................... 39 C. The limited precedent on this question supports the Fishermen ............................................................................. 50 III. Dismissal of the Fishermen’s “smallest area” claim was erroneous .............................................................................. 58 Conclusion ............................................................................................... 62 iii USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 5 of 96 Certificate of Compliance with Type-Volume Limit, Typeface Requirements, and Type-Style Requirements ........................................ 63 Certificate of Service ............................................................................... 64 Addendum iv USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 6 of 96 Table of Authorities Cases Alaska v. United States, 545 U.S. 75 (2005) ...................................... 54-57 Andrus v. Allard, 444 U.S. 51 (1979) ...................................................... 48 Bullock v. BankChampaign, N.A., 569 U.S. 267 (2013) .................... 41-42 California Coastal Commission v. Granite Rock Co., 480 U.S. 572 (1987) .............................................................................. 44 Cappaert v. United States, 426 U.S. 128 (1976) .......................... 54, 56-57 Chamber of Commerce of United States v. Reich, 74 F.3d 1322 (D.C. Cir. 1996) .................................................... 20-21, 61 Dames & Moore v. Regan, 453 U.S. 654 (1981) ...................................... 34 Davis v. Mich. Dep’t of Treasury, 489 U.S. 803 (1989) ...................... 23-24 Dole v. United Steelworkers of America, 494 U.S. 26 (1990) .................. 40 *Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) .................................................................... 3, 24, 27 Freeman v. Quicken Loans, 566 U.S. 624 (2012) .................................... 42 Gustafson v. Alloyd Co., 513 U.S. 561 (1995) .................................... 40-41 Haig v. Agee, 453 U.S. 280 (1981) ........................................................... 34 Hilton v. South Carolina Public Railways Comm’n, 502 U.S. 197 (1991) .............................................................................. 33 Hodel v. Indiana, 452 U.S. 314 (1981) .................................................... 48 Ill. Cent. R. Co. v. City of Chicago, 176 U.S. 646 (1900) ......................... 38 ___________________ * Authorities upon which we chiefly rely are marked with asterisks. v USCA Case #18-5353 Document #1781760 Filed: 04/08/2019 Page 7 of 96 Jarecki v. G. D. Searle & Co., 367 U.S. 303 (1961)................................. 42 King v. Burwell, 135 S. Ct. 2480 (2015) .................................................. 53 Kleppe v. New Mexico, 426 U.S. 529 (1976) ............................................ 44 Life Technologies Corp. v. Promega Corp., 137 S. Ct. 734 (2017) ....................................................................... 41-42 MCI Telecomms. Corp. v. Am. Tel. Co., 512 U.S. 218 (1994) ................. 37 McDonnell v. United States, 136 S. Ct. 2355 (2016) ............................... 42 Mistretta v. United States, 488 U.S. 361 (1989) ................................. 3, 23 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ................... 24 *Mountain States Legal Found. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002) ........................................ 1, 20, 28-29, 61 Nat’l Ass’n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997) ........................................................ 28-29 Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm’n, 216 F.3d 1180 (D.C. Cir. 2000) ............................................................. 55 Perrin v. United States, 444 U.S. 37 (1979) ............................................ 35 RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) .................................................................... 3, 24, 27 Rapanos v. United States, 547 U.S. 715 (2006) ................................ 32, 56 Roberts v. Sea-Land Servs., Inc., 566 U.S. 93 (2012) ............................. 23 Sickle v. Torres Advanced Enterprise Solutions, LLC, 884 F.3d 338 (D.C. Cir. 2018) ............................................................... 20 Solid Waste Ag. of N. Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159 (2001) .............................................................................. 32 vi USCA Case #18-5353 Document #1781760 Filed: 04/08/2019
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