Definition of 'Cultural Fishing' still being debated
An attorney with the US National Oceanic and Atmospheric Administration has hinted to a federally established group that its work to define cultural fishing will have an impact on future issues pertaining to fisheries in American Samoa.
One of the main issues on the agenda at last week’s three-day meeting of the Western Pacific Regional Fisheries Management Council, held in Honolulu, dealt with defining cultural fishing in American Samoa, following a Honolulu federal judge's decision in March, that the US National Marine Fisheries Services failed to consider the Deeds of Cession, when implementing the 2016 amendment to the Large Vessel Prohibited Area in territorial waters.
US District Court Judge Leslie Kobayashi said the NMFS’ 2016 LVPA Rule disregards its obligations under the Deeds of Cession to “protect and preserve cultural fishing rights in American Samoa.” (The Deeds for Tutuila and Aunu’u were signed in 1900, and 1904 for Manu’a — with the US.)
There were several discussions during the Council's three-day meeting on ways to define cultural fishing and what is considered cultural fishing, as well as protecting and preserving cultural fishing in the territory.
What was clear from the speakers and answers from NOAA officials as well as others, is that ASG, the local fishing community, and others in the territory need to be consulted for a final definition.
Among the many questions raised, were those from American Samoa Council member, Christinna Lutu-Sanchez, who wanted to know if once the cultural fishing definition is finalized, would that cultural fishing definition apply to anyone fishing within the LVPA, and not necessarily just the US longline fleet based in American Samoa.
Lutu-Sanchez further asked if the Council staff or NMFS foresee the cultural fishing definition and the Deeds of Cession applying — in the future — to the American Samoa Longline Limited Entry federal program.
There is a federal program, which applies to the US longline fleet, whereby they are issued permits to fish in local waters.
Council staff member Eric Kingma explained how the cultural fishing definition would be developed, by going out to the public, working with ASG, and reaching out to the local fishing community to further define it.
“But the way that we've been thinking about it, I don't think it's in order to fish within the LVPA you have to be designated as a cultural fisherman, for example,” he said, adding adding that the obligation on the Council and NMFS “is to preserve and protect cultural fishing and to ensure that we do that on a continual basis, evaluate our management regime in the context of the Deeds of Cession and cultural fishing, not designating certain areas reserved only for cultural fishing, in order to allow for continued fishing operations, but also respect the preservation and protection of cultural fishing.”
“So the way I've been thinking about this is not just in a designated area solely for cultural fishing, but cultural fishing practices and other fishing can be compatible once we understand definitions and how to evaluate that,” he added.
Frederick W. Tucher, Chief of the Pacific Islands Section of the NOAA Office of General Counsel, which provides legal counsel to the Council, helped expand the response to the two questions.
Regarding the permit entry program, for which modification was discussed at the meeting, Tucher said, “We have to look at cultural fishing. I think yes, because under one federal judge’s decision, the Deeds of Cession impose an obligation to protect and preserve cultural fishing — whatever that means.
“And there’s other applicable law,” he said. For example, every federal Magnuson-Stevens Fishery Conservation and Management Act action must comply with all applicable law. “So anytime [the] Council prepares a fishery management plan amendment or regulation, it must demonstrate in the administrative record that the action protects and preserves cultural fishing.”
“So yes, it's pretty much going to apply to anything that affects American Samoa fisheries,” he said, in response to Lutu-Sanchez’s second question. He also elaborated more on what the Council needs to consider, saying, “I think it's very important for how this Council chooses to define cultural fishing. What does that mean?”
He explained that “in the litigation [ASG] took the view point, or basically the linchpin, was the alia fishing fleet, for invoking the deeds.”
“There is no real reason for the the Council to define cultural fishing to only include 'alias,” he said. “That may develop during the rule making process or the amendment process, maybe something the Council chooses to pursue.”
“Or the Council could pursue something much broader and say, cultural fishing has components in all other commercial and non commercial fisheries or some segment thereof. The reason that’s important is because you have the question, ‘What does it mean to preserve and protect’?”
“If you’re only preserving and protecting a small segment or sector of the community, such as 'alias, that imposes one obligation. Does that mean you can never have adverse affect on 'alia fishery, or that other segment you choose to ‘preserve and protect’?” he asked. “That’s a valid question, but sometimes it's beyond the agency’s control - such as when you’re on a regional depletion of a stock.”
To assist in defining the protection and preservation of cultural fishing, he suggested that the Council partner with American Samoa — the community — to get public comments, through pubic scoping “but ultimately, it's how you define that is really going to be very, very important in answering this question that is coming up right now — who can be adversely affected and who cannot.”
Lutu-Sanchez reiterated that “it’s so important that we support our US fishermen and that we, in consideration of all management measures that we have, in conservation measures, make sure that there is access to fishing grounds.”
“The fish that we target and most of the fleet target, [are] highly migratory species,” she said referring to the US longliner, which targets albacore for the canneries.
Another American Samoa member on the Council, Taotasi Archie Soliai, who is also a StarKist Samoa official, said, “This is going to be a very contentious and sophisticated process” — defining cultural fishing, adding that “I think timeline is of the essence.”
In the end the Council approved three recommendations pertaining to the LVPA, which includes one that directs its staff to develop a definition for cultural fishing that recognizes that Pacific Island cultures and fishing are inextricably linked, and that cultural fishing in American Samoan is grounded in cultural values embodied in Fa’a Samoa and Samoan practices such as tautua — “service.”
The issues will be taken up in October during the 171st Council meeting in American Samoa. (See the June 23 Samoa News edition for details of the recommendations.)