Federal Judge Invalidates Reduction In American Samoa Large Vessel Protected Area

Fishery Service decision to shrink area reserved for local fishing fleet 'arbitrary and capricious'

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, March 21, 2017) – A federal judge in Honolulu has ruled in favor of the Territory of American Samoa, saying that the National Marine Fishery Service (NMFS) decision in 2016 to reduce the large vessel protected area in waters of American Samoa “is invalid”.

U.S District Court Judge Leslie E. Kobayahi also ruled that NMFS’ adoption of the 2016 LVPA rule, which became effective on Feb. 3, 2016 “was arbitrary and capricious”.

The plaintiffs, through the American Samoa government and the Governor’s Office, filed the lawsuit last March asking the federal court in Honolulu to invalidate the reduction of the LVPA, which had been preserved since 2002 for the local alia fleet.

The LVPA reduction allowed long line vessels 50 feet and over to fish in the LVPA.

The major focus of the plaintiff’s lawsuit centered around the two Deeds of Cession — 1900 Deed of Cession for Tutuila and Aunu’u and the 1904 Deeds of Cession for Manu’a.

The plaintiff argued in several court filings since last year that American Samoa’s cultural fishing rights are found in the Deeds and that the 2016 LVPA rule harms its culture by discouraging participation in the alia fisheries.

The defendants countered in court documents that Deeds say nothing, about fishing or marine resources and “that silence should not be read to establish rights.”

“In short, it is unreasonable to interpret the Deeds to provide Plaintiff with cultural fishing rights in offshore federal waters,” according to the federal defendants, composed of NMFS, the Secretary of Commerce and the Western Pacific Regional Fishery Management Council executive director.

In a 42-page ruling yesterday, Kobayashi notes that the Deeds of Cession preserved the American Samoans’ right to use their “property” to continue their customary practices, although the deeds do not specifically identify those customary practices.

“The American Samoans are an island people and… their history of fishing practices goes back thousands of years, i.e. their fishing customs were well established at the time of cession,” said Kobayahi, who concluded that American Samoans’ right to use their “property” to continue their customary fishing practices is reserved by implication in the Deeds of Cession.”

“Because the Deeds of Cession require the United States to respect the American Samoans’ customary fishing practices,” the court “concludes that the deeds imposed additional procedural or substantive requirements on the rule-making process that culminated in the 2016 LVPA Rule,” she pointed out.

Therefore, the Deeds of Cession constitute “any other applicable law,” which the 2016 LVPA rule must be consistent with provisions of federal law, she said.

She notes that the federal defendants argue that, “NMFS did consider the American Samoans’ interest in cultural fishing practices prior to adopting the 2016 LVPA Rule.” Additionally, the federal defendants emphasize that NMFS considered the impact on American Samoan fishing, and both the 2016 LVPA rule and the 2016 LVPA-EA which states that NMFS will “annually review... the effects of the 2016 LVPA Rule on catch rates, small vessel participation, and sustainable fisheries development initiatives.”

“However, the consideration of American Samoan cultural fishing practices in general is not enough,” said Kobayahi, adding that the court has concluded that the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices.

“Thus, the 2016 LVPA Rule should not have been adopted without a determination that the proposed rule was consistent with... the Deeds of Cession,” she said.

Based upon federal defendants’ positions in this case, Kobayahi said it is clear that NMFS did not consider whether the proposed rule that eventually became the 2016 LVPA Rule was consistent with the Deeds of Cession.

Because NMFS failed to consider whether the proposed rule was consistent with the Deeds of Cession, it “entirely failed to consider an important aspect of the problem,” and “therefore the adoption of the 2016 LVPA Rule was arbitrary and capricious,” the judge ruled.

Kobayashi said the court concludes that the “the 2016 LVPA Rule is invalid” and grants plaintiff’s request for summary judgment while denying federal defendant’s counter-claim for summary judgment.

With the ruling, Kobayashi has “vacated and set aside” the 2016 LVPA rule, according to the decision, which says that the other two counts by the plaintiffs against federal defendants are dismissed as “moot” because of this ruling.

Samoa News will report in a later edition other details from Kobayashi’s ruling, which came a day before the Western Pacific Regional Fishery Management Council convenes in Honolulu for three-days.

The move to reduce the LVPA, from 50 to 12 miles, followed a recommendation from the Council, amid strong opposition from the territorial government and traditional leaders. The move was supported by the long line boat association in American Samoa, which pointed to not only lowering overhead costs for the financially troubled fisheries, but also assisting in data collection needed to make sound decisions for sustainable fishing in the territory’s waters.

The Samoa News
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