American Samoa Administration Welcomes Federal Court Decision On Protected Areas

Federal government reading decision before determining how to proceed

By Fili Sagapolutele

PAGO PAGO, American Samoa (The Samoa News, March 22, 2017) – The Lolo Administration is praising a ruling by the federal court in Honolulu that invalidates the 2016 decision by the US National Marine Fishery Service (NMFS) to reduce the large vessel protected area, or LVPA, in waters of American Samoa.

Attorney General Talauega Eleasalo Ale, who appeared at federal court during oral arguments last month, describes the ruling as “thorough and well-reasoned” while a federal attorney told a meeting in Honolulu yesterday that no decision yet on their next course of action with US District Court Judge Leslie Kobayashi’s 42-page ruling until it has been reviewed.

In February last year NMFS reduced the LVPA from 50 miles to 12 and the Territory of American Samoa, through ASG, filed a lawsuit at the federal court arguing among other things that the federal agency acted arbitrarily in changing the boundaries.

In a ruling issued Monday, Kobayashi agreed with American Samoa and also sided with the territory’s argument that the federal agency failed to take into account the two Deeds of Cession — the 1900 Deed of Cession for Tutuila and Aunu'u island and the 1904 Deeds of Cession for Manu'a - with the United States. 

“Our Deeds are sacred documents to our people. They establish the foundation of our relationship with the United States,” Gov. Lolo Matalasi Moliga said in the government’s posted statement on the official ASG website. “There is no question that the Deeds afford our people rights. Our ancestors had enough foreknowledge and wisdom to place safeguards in these special documents to protect our way of life.”

According to the governor, American Samoa’s position has always been that the Deeds must be consulted when federal agencies want to impose federal laws on the territory. In this case, he says the US National Oceanic and Atmospheric Administration (NOAA), which oversees NMFS, failed to consider the Deeds despite numerous communications to them, to do so.

“I hope this case serves as a reminder to the federal government that we have rights and they should not be easily dismissed,” he said.

During the comment period two years ago when NMFS proposed to reduce the LVPA, many commenters cited the Deeds and cultural fishing rights. Among them were the governor, then Marine and Wildlife Resources director Dr. Ruth Matagi-Tofiga, and descendants of the chiefs who signed the Deeds of Cession.

Several commenters noted that in the Deeds, the United States promised to protect the lands, preserve the traditions, customs, language and culture, Samoan way of life, and the waters surrounding the islands, and that all the science and environmental analysis should not supersede the rights of the people of these islands.

The NMFS move to reduce the LVPA was based on a recommendation by the Honolulu-based Western Pacific Regional Fishery Management Council. At the time the Council vote was taken, just over two years ago, American Samoa’s two members on the Council during the vote Matagi-Tofiga and Port Administration director Taimalelagi Dr. Claire Poumele voted “no” on the recommendation — but the majority vote of “yes” carried it. 

Talauega, who argued for ASG during a Feb. 13 hearing at the federal court, describes Kobayashi’s decision as “thorough and well-reasoned”, adding — “we are very pleased with the court’s ruling.”

“From the beginning this was an uphill battle for the territory given the high standard of review for challenging a federal rule or regulation,” Talauega said yesterday responding to Samoa News inquiries. “But with the Governor's leadership and support, as well as that of our cultural leaders, we felt it was important pursue this challenge.”

“We also felt that this would be a great opportunity to test the strength of our Deeds of Cession, which have been in place for over 110 years but never tested,” he explained. “This decision is the first federal case law to articulate the meaning of the deeds as it relates to our direct dealings with the federal government.”

“It establishes a critical pathway towards clarifying our relationship with the federal government, as well as our status as a people and culture within the American family,” he said, adding that he was fortunate to work with a team of talented lawyers in this case, including Aitofele Mino Sunia and Alema Leota, and attorney Michael Iosua, with the Honolulu law firm of Asato.

Iosua, who is from American Samoa, is a former ASG assistant attorney general.

FEDERAL RESPONSE

Melenaniikeawakea Coleman an attorney with the U.S. Department of Justice Environment & Natural Resources Division, led the federal legal team representing the federal defendants, which included the US Secretary of Commerce; Michael Tosatto, regional administrator of the NOAA Fisheries Service’s Pacific Islands Regional Office; and Western Pacific Regional Fishery Management Council executive director.

Tosatto told Samoa News yesterday afternoon that NOAA Fisheries is currently reviewing the court's decision and is evaluating its next steps. “We will provide additional information when those steps are known,” he said via email from Honolulu.

Responding to email questions and request for comments sent to Coleman, the USDOJ spokesperson Wyn Hornbuckle said yesterday that “We will decline to comment.”

NOAA AND COUNCIL RESPONSE

The LVPA ruling was part of a presentation by legal counsel Frederick Tucker with the NOAA Office of General Counsel-Pacific Islands Section during yesterday’s first day of the three-day 169th Meeting of the Council at the Ala Moana Hotel in Honolulu. The Council meeting is streamed live online.

Tucker briefed the Council on Kobayashi’s ruling including the Deeds of Cession, which he says that NMFS had argued in court that the Deeds didn’t protect cultural rights. And because the ruling was just issued, he said NOAA hasn’t had an opportunity to discuss it extensively with other federal parties including the USDOJ.

Responding to questions from American Samoa’s three members on the Council, Tucker told the meeting that NOAA still needs to talk to other attorneys within the federal parties on the next course of action and that the ruling is “generally effective” immediately, as the court has ordered the 2016 LVPA to be vacated.

He also said they are considering all options such as seeking to stay the order, seeking a reconsideration or move for an appeal. Normally, for an appeal, the defense will need to file a notice of intent to appeal within 60-days from the date the ruling was issues.

However, it can be shorter — meaning fewer days — for a motion for reconsideration, he said and again stressed that what he was telling the Council does not mean that they will be filing an appeal, or a reconsideration motion.

“We continue to evaluate [the ruling]. Currently, we’re in the evaluation state,” he said and again emphasized that the defense has not made a decision on the next course of action, including no decision if they will seek a stay on the ruling. 

American Samoa members on the Council are: Department of Marine and Wildlife Resources director Va’amua Henry Sesepasara; Christinna Lutu-Sanchez of Longline Services Inc.; and Taotasi Archie Soliai of StarKist Samoa. Lutu-Sanchez is also one of the four vice chairpersons.

Taotasi noted the need for some decision to be made by the federal government regarding the court ruling, adding that this has been a “very contentious issue” in the past several months.

Responding to Samoa News inquires, Council spokesperson Sylvia Spalding said late yesterday afternoon that the “Council just received the judge's rule and is evaluating it. The Council may be discussing it more during the Council meeting” which runs through tomorrow.

The Samoa News
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