The legal battle over the creation of the Northeast Canyons and Seamounts Marine National Monument off the coast of Massachusetts is starting to feel like the Hundred Years' War in Europe of the 14th and 15th centuries.

Commercial fishing interests, with the Massachusetts Lobstermen's Association as lead plaintiffs, this week filed a petition asking the U.S. Supreme Court to hear its challenge of the use of the federal Antiquities Act by President Barack Obama in 2016 to create the 5,000 square-mile marine national monument about 130 miles off Cape Cod.

The petition represents the third time fishing interests have tried legal challenges to the creation of the only marine national monument in the Atlantic Ocean. They were unsuccessful in the first two.

In the petition, attorneys representing the MLA and other commercial fishing stakeholders, question whether the Antiquities Act "applies to ocean areas beyond the United States' sovereignty where the federal government has only limited regulatory authority."

The petition charges the use of the Antiquities Act circumvents the National Marine Sanctuaries Act and questions whether Obama evaded the Antiquities Act's "smallest area requirement" by designating "ocean monuments larger than most states." It also maintains that the use of the act to create the marine national monument is a threat to the Constitution's separation of powers.

The issue could be further muddied by President Donald J. Trump's proclamation in June that reopened the waters within the boundaries of the marine national monument to commercial fishing.

"However, (Trump's) proclamation does not modify the monument in any other respect," the petition to the Supreme Court stated. "Instead, it just reaffirms the president's authority to designate the monument. This voluntary cessation neither moots this case nor reduces the need for review."

On Sept. 15, 2016, Obama designated 3.2 million acres as the Northeast Canyons and Seamounts Marine National Monument to protect three underwater canyons, four seamounts and the surrounding resources and ecosystems.

While hailed by environmentalists and conservationists, the creation of the marine national monument enraged fishing interests by barring them from traditional and lucrative groundfish, lobster and crab fisheries.

Fishing interests filed suit in U.S. District Court in March 2017, claiming Obama exceeded his powers by using the Antiquities Act "because its consists of ocean beyond the territorial sea, rather than any land owned or controlled by the federal government," the petition to the Supreme Court stated.

The lawsuit created some strange legal bedfellows, as the Trump administration argued in defense of Obama's designation and aligned itself with conservation forces it routinely opposes.

In October, 2018, the U.S. District Court Judge James E. Boasberg, sitting in Washington D.C., ruled the monument was appropriately authorized under the Antiquities Act and dismissed the fishing stakeholders' complaint.

Fishing stakeholders appealed to the U.S. Court of Appeals for the District of Columbia, but the federal appeals court affirmed Boasberg's dismissal.

Contact Sean Horgan at 978-675-2714, or Follow him on Twitter at @SeanGDT

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