Federal Judge Yet To Rule On American Samoa Lawsuit Over Reduction In Protected Fishing Area

Territory is challenging National Marine Fishery Service decision to shrink Large Vessel Protected Area reserved for local fleet

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, Feb. 20, 2017) – A federal judge in Honolulu has taken under advisement a motion for summary judgment by the Territory of American Samoa on its lawsuit over the action taken by the US National Marine Fishery Service (NMFS) last year to reduce from 50 to 20 miles the Large Vessel Protected Area in waters of American Samoa.

The lawsuit filed last March asked the federal court to void a Feb. 3, 2016 decision by the NMFS reducing the LVPA, which has been protected waters for the local alia fleet since 2002.

Among the federal defendants named in the lawsuit are NMFS, and the US Commerce Secretary. The federal defendants argued that they went through the required process before making the final decision, which will help the US longline fleet fishing in American Samoa, that was already facing many challenges, while alia have reduced drastically since 2002.

Attorney General Talauega Eleasao Ale and attorney Michael Iosua, with the Honolulu law firm of Imanaka Asato, represented the plaintiffs during a Feb. 13 hearing where oral arguments were heard by U.S. District Court Judge Leslie E. Kobayashi, who ruled that the plaintiff's motion for summary judge is taken under advisement.

Kobayashi will issue a written order once a decision is reached but no time frame is provided on federal court records of when that will happen. As of last Friday, no decision had been made yet, according to federal electronic court records.

ASG has argued consistently that the federal defendants’ action in enacting the 2016 LVPA rule “are arbitrary and capricious, and an abuse of their discretion.” In addition, the United States owes a fiduciary duty to American Samoans, which it has failed to uphold. ASG asked the court to nullify the 2016 LVPA rule.

During a cabinet meeting late last month, Gov. Lolo Matalasi Moliga said Talauega would be in Honolulu “fighting” the LVPA case. “It’s not about the control, it’s about ownership,” Lolo said. “I don’t think we can continue to be treated that way and we have to raise our voice and make our point clear.”

Based on court filings, most of ASG arguments against reduction of the LVPA center around the two Deeds of Cession - Tutuila and Aunu’u as well as the Manu’a Islands. Last October, the federal defendants filed a “judicial notice”, which brings the Honolulu federal court’s attention to the Deeds of Cession, based on the Deeds information posted on the American Samoa Bar Association website (www.asbar.com).

During the Feb. 13 court hearing, oral arguments on the judicial notice were also heard and the court has also taken this matter under advisement. A final decision will be issued in a written order, according to electronic court records.

According to the defendants, plaintiff’s interpretation that the Deeds are “other applicable law” under the Magnuson Act, “are without merit” and cited two reasons. For example, the Deeds’ broad language does not apply to fishing or any territory interest in offshore marine resources subject to exclusive federal management.

Second, to the extent that the Deeds require NMFS to respect, protect, or recognize American Samoan traditions, the defendants say NMFS’s administrative record shows that NMFS carefully considered all relevant information and articulated a satisfactory and rational explanation for the 2016 LVPA rule and thus clearly satisfied any requirement allegedly imposed by the Deeds.

The Samoa News
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