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LVPA defendants say “silence should not be read to establish rights”

[SN file photo]
fili@samoanews.com

Federal defendants in the Territory of American Samoa lawsuit over the reduction of the Large Vessel Protected Area in waters of the territory, contend that the Deeds of Cession impose no requirements on the federal government’s management of offshore fishery resources.

And the defendants dismissed plaintiff’s claims that because of the 2016 LVPA amendment rule, American Samoa is prohibited from enforcing its constitution, according to the latest round of court filings at the Honolulu federal court, which last month added acting Attorney General Talauega Eleasalo Va’alele Ale as another attorney for American Samoa’s legal team represented by the Honolulu based law firm of Imanaka Asato.

Federal defendants include the US National Marine Fisheries Service (NMFS), the US Commerce Department and the executive director of the Honolulu-based Western Pacific Regional Fishery Management Council.

DEEDS OF CESSION

The plaintiff, through ASG, had argued in several court filings since last year that American Samoa’s cultural fishing rights are found in the Deeds (1900 Deed of Cession for Tutuila and Aunu’u and 1904 Deeds of Cession for Manu’a) and that the 2016 LVPA rule harms its culture by discouraging participation in the alia fisheries.

The defendants countered in court documents filed yesterday 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 defendants, who are represented by the US Justice Department.

According to the defense, the text of the Deeds upon which the Plaintiff relies provides that, in exchange for the formal cession of the islands and waters that constitute American Samoa, the United States will “respect and protect the individual rights of [American Samoans] to their lands and other property” and that the “the rights of [American Samoans] concerning their property according to their customs shall be recognized.”

“Thus, at most, the text of the Deeds represents a federal policy to preserve and respect individual rights and Samoan culture ‘concerning land ownership’ and property,” it says. “In other words, because neither the act of fishing nor a state’s or territory’s or sovereign’s marine resources can qualify as an individual’s personal or real property, the text of the Deeds cannot be construed to represent a federal policy to protect customs related to fishing or marine resources.”

“It would be an even farther stretch to construe the Deeds, as Plaintiff argues, i.e., as establishing cultural fishing rights in federal waters,” according to the defense and reiterated arguments made that year that the broad language of the Deeds imposes no requirements on NMFS’s management of offshore fishery resources and thus the Deeds are not “other applicable law” under the federal Magnuson Act.

Last October, the defense filed a “judicial notice” regarding the Deeds and ASG had no objections to the matter. A hearing in this issue is set for Feb. 13.

CONSTITUTION

The defense has also dismissed plaintiffs arguments that its Constitution provides a concrete interest sufficient to establish standing because the 2016 LVPA rule purportedly “forbids Plaintiff from executing its constitutional duty to protect and support the customary fishing right of its people in the waters of American Samoa.”

While Plaintiff’s Constitution “sets forth a policy to protect the Samoan way of life, it says nothing about customary fishing rights, or rights extending into federal waters,” the defense countered, and referred to provisions of the Constitution on the American Samoa Bar Association website.

“Accordingly, this silence should not be read as a policy to protect cultural fishing rights in federal waters,” it says, adding that the plaintiffs have not demonstrated that the 2016 LVPA Rule prohibits or restricts the American Samoan government from carrying out its constitutional policy to protect the Samoan way of life. “Thus, the 2016 Rule does not affect the American Samoan government’s ability to carry out its constitutional policy.”

Additionally, the 2016 Rule in no way prevents or impedes American Samoa from carrying out its policy to protect the Samoan way of life. Furthermore, the 2016 Rule neither places restrictions on alia fishing nor prohibits Plaintiff from taking steps to incentivize participation in the alia fishery or perpetuate the cultural practices associated with alia fishing.

In fact, the 2016 Rule supports alia fishing because it maintains fishing prohibitions within the LVPA out to 12 nautical miles from shore for vessels measuring more than 50 feet in length and provides that the Western Pacific Regional Fishery Management Council and NMFS are committed to annually reviewing “the effects of the final rule on catch rates, small vessel participation, and sustainable fisheries development initiatives.”

In conclusion, the defense asked the court to grant the federal defendants summary judgment and not the plaintiffs.