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Fono calls for Congress to review Fagatele proposal

The Senate last Friday approved a concurrent resolution requesting Congressman Faleomavaega Eni to initiate a thorough and complete Congressional review of all issues presented by the U.S. National Oceanic and Atmospheric Administration’s proposed expansion of Fagatele Bay National Marine Sanctuary (FBNMS), adding five new areas.

“...inherent in this proposed rule, and the adoption procedure, several vitally important issues are raised with legal, practical, and political ramifications which are deserving of Congressional inquiry and deliberate review,” according to the non-binding resolution.

Among those issues is the questionable validity and applicability of Presidential Proclamation No. 8337 (which established the Rose Atoll National Monument) to American Samoa in light of 48 U.S.C. 1661(b), adopted in 1929, providing that existing public land law does not apply to the Territory and that Congress shall enact special laws for public land management.

Additionally, “issues of federalism are presented insofar as the proposed rule preempts local law pertaining to the American Samoa Government’s Department of Marine and Wildlife Resources and its ability to manage, protect, preserve and perpetuate marine resources within Territorial waters.”

According to the resolution, NOAA’s proposed rule, with establishment of no take fishing zones or imposition of fishing restrictions, would inhibit development of American Samoa’s local fishing fleet, contrary to the American Samoa Economic Advisory Commission’s report to the U.S. President entitled Transforming the Economy of American Samoa, which identified the local fishing industry as a Tier Two industry having immense possibilities for growth, but also requiring time and resources to develop.

According to the Senate, the territory’s political relationship with the United States is brought into question by the NOAA administrative rule making process. Further, adoption of the proposed rule will effectively result in the permanent loss of territorial waters to federal jurisdiction and clashes with guarantees secured by the territory’s deeds of cession.

These deeds, the resolution says, “expressly reserved rights and entitlements of the chiefs and the people to the land, adjoining waters, and customs and traditions.” Therefore the proposed rule “encroaches on these guarantees” and as a result, it should be Congress to address and resolve these issues.

The resolution also points out that public hearings were held at which predominately negative opinions and opposition to the expansion were consistently voiced. Additionally, certain village councils have expressed their opposition.

“Given the weight of the negative response that this proposal has received from the general public, it cannot be said that this is a community driven initiative. Therefore, it would seem appropriate for Congress to evaluate the breadth of support this plan has within the Territory and, importantly, to identify the sponsors of this proposed expansion and examine their motives,” the resolution states.

“American Samoa has a small exclusive economic zone (EEZ) and local fishermen are being denied access to important fishing areas that provide significant commercial, nutritional and socio-cultural benefits, as well as room for the further development of small-scale fisheries around American Samoa, which condemnation is being accomplished without fair consideration of future economic loss or compensation, and it is appropriate for Congress to examine this issue and loss,” it says.

“...for centuries Samoans have acted as the stewards of their waters and recognize and protect this most import resource. Closure and/or restriction of fishing zones which have been fished for generations by Samoans imposes upon the customs and traditions of the Territory and its people and creates the potential for conflict and drastic consequences if not thoroughly examined and appropriately dealt with by Congress,” it says.

Copies of the resolution are to be sent to Faleomavaega, Gov. Tulafono, Hawai’i’s congressional senators Daniel Inouye and Daniel Akaka and the U.S. Department of Interior.

Meanwhile, the public is reminded that NOAA has extended the comment period of the proposal to Mar. 9.

Written comments can be submitted to the FBNMS office at the Commerce Department.

Comments may also be submitted electronically via the Federal eRulemaking Portal by clicking “Submit a Comment,” then enter NOAA-NOS-2011-0243  in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon to the right of that line.

See story about ASCC forum on the Fagatele Bay expansion proposal below.