American Samoa AG Discusses Successful Case Challenging LVPA Changes
First time Deeds of Cession used to overturn federal decision
By Fili Sagapolutele
PAGO PAGO, American Samoa (The Samoa News, March 30, 2017) – During Tuesday’s cabinet meeting, Attorney General Talauega Eleasalo Ale provided some details of what occurred behind the scenes at the Attorney General’s Office that later led to American Samoa successfully arguing in federal court to overturn a federal decision on the Large Vessel Protected Area (LVPA) in territorial waters.
And with the decision, handed down on Mar. 20, Gov. Lolo Matalasi Moliga says it shows that there is “value” in the American Samoa’s two Deeds of Cession with the United States.
U.S District Court Judge Leslie Kobayashi sided with the territory’s argument that the U.S National Marine Fisheries Service (NMFS) 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.
Speaking at the cabinet meeting, Talauega noted there was strong encouragement from both Lolo, Lt. Gov. Lemanu Palepoi Sialega Mauga, and local leaders, to take the case to federal court, and he thanked his team at the Attorney General’s Office, Mino Sunia and Alema Leota, who were tasked with finding cases to “prove our point” in court.
He said his job was to come up with the “theory” to make American Samoa’s case in federal court, as “there’s no case law that directly puts the Deeds against the federal government.”
While there were past cases from “private parties, Talauega said the lawsuit was the first time that American Samoa Government used the Deeds “to stand up to the federal government and say ‘we have rights and these are our rights’.”
“One of the difficulties in pursing this case is that there is no case law like that. There are a lot of case laws about [American] Indians- Native Americans,” he said, but the federal government and the National Oceanic and Atmospheric Administration (NOAA) “would keep reminding us, we are not Indians. But we are native people, we have original rights.”
So the ASG legal team was “looking outside of American law” and they looked into the Treaty of Waitangi — regarding Maori, the native people of New Zealand — and deeds for the people of Fiji, he said, adding that all of these issues were combined in ASG’s case.
He again reiterated his sincere appreciation to his team, Sunia and Leota, “who worked tirelessly to look and find those cases that I knew was out there, but I didn’t remember where it was, and which country it comes from.”
Talauega revealed that ASG’s case was also shared with attorneys who handle these types of matters, but he was told “Don’t do it’.” However, he said he moved forward with the case because it was a directive from the governor, whose wish was to take this case to court and it was done so with a positive outcome.
He also said that this is the first time that a US court has ruled that American Samoans have rights based on the two Deeds. And that means the federal government cannot make a decision that violates US promises to the people of American Samoa, as outlined in the Deeds.
And if NMFS appeals the court’s ruling, it will probably be to the San Francisco-based 9th Circuit Court of Appeal, he said and pointed out that what’s important now is that there is a “case law” that cites the importance of the Deeds.
Lolo added that it’s 117 years since American Samoa became a part of the United States family but the people of American Samoa remain unclear as to the “value” of the Deeds, which were put forth by our forefathers. However, he said the federal court ruling makes clear there is “value” in this important historical set of documents — the two Deeds.
The governor again thanked Talauega and his team for the hard work. And he also expressed appreciation to American Samoa’s three members who served on the Western Pacific Regional Fishery Management Council in the last four years as they took on the heavy burden of arguing for American Samoa.
The three previous members are Port Administration director Taimalelagi Dr. Claire Tuia Poumele, then Department of Marine and Wildlife Resources director Dr. Ruth Matagi-Tofiga, who is the current Education director, and Pacific Energy senior official Taulapapa William Sword.
Lolo said arguing this case in court was not to win, but to get a much better understanding on the “value” of the Deeds and if there was a ruling of “no value” then American Samoa would then look for another way to better connect with the federal government.
Lolo then told Talauega to put on his boxing gloves to prepare for the next fight, if there is one — referring to the case being appealed.
Michael Tosatto, regional administrator of the NOAA Fisheries Service’s Pacific Islands Regional Office, told Samoa News last week that NOAA Fisheries is currently reviewing the court's decision and is evaluating its next steps.
The Council during its three-day meeting last week in Honolulu approved two separate recommendations. One directs its staff to work with NMFS and NOAA general counsel on reviewing the judge’s decision and two, “to evaluate next steps, which could include requesting the court to stay the decision pending reconsideration of appeal over the court’s decision and further notes the urgency to provide regulatory relief for the American Samoa longline fleet, because it continues to face dire economic conditions.”
DMWR director Va’amua Henry Sesepasara, the governor’s current representative on the Council, opposed the recommendations with a “no” vote. (See Samoa News editions Mar. 23 and Mar. 27 on the Council’s discussion of the LVPA.)
Reduction of the LVPA from 50 to 12 miles followed a recommendation two years ago by the Council, which sought to amend the LVPA, first established in 2002, to help the US longline fleet based in American Samoa, which was facing several challenges.
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