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LVPA federal lawsuit now in mediation discussions

However, the details are 'confidential'

Pago Pago, AMERIAN SAMOA — The Territory of American Samoa’s large vessel prohibited area (LVPA) federal lawsuit pending on appeal, also remains in mediation, where details are “confidential”, with the federal government to file a brief later this year in June, according to officials with the US National Oceanic and Atmospheric Administration’s Office of General Counsel for the Pacific Islands Section.

The LVPA lawsuit update was one of the two issues shared by General Counsel Office section chief, Fred Tucher and attorney advisor, Kristen Johns at yesterday’s first-day of the three-day 172nd meeting of the Western Pacific Regional Fishery Management Council in Honolulu.

As reported by Samoa News several times in past months, the National Marine Fishery Services (NMFS) — one of the federal defendants in the case — appealed to the 9th Circuit Court, the Honolulu federal court’s decision, which sided with American Samoa and invalidated the 2016 LVPA regulation that reduced the LVPA.

American Samoa had argued that NMFS failed to take into consideration in its regulation the Deeds of Cession — between Tutuila and Aunu’u in 1900 and Manu’a in 1904 — with the United States. Preservation and protection of cultural fishing practices was among the issues argued by American Samoa relating to the two Deeds.

During yesterday’s Council meeting, Johns gave an update on the lawsuit, including the fact that NOAA filed a notice of appeal. “The parties have since entered into mediation discussion, the details of which are confidential,” she said, adding that NOAA has been given June 11th to file its open brief with the appellate court.

American Samoa member on the Council, Va’amua Henry Sesepasara, who is the government’s representative as director of the Department of Marine and Wildlife Resources, inquired as to when the Territory is to file a response.

According to court records, the Territory shall file an answering brief on or before July 11th and NOAA may file an optional reply brief 21-days later. Additionally, the mediation conference call set for last month is rescheduled for Apr. 30th.

One big question being asked by many, who have shown interest in the final outcome of this case, is when the appeal process will be completed; and this was asked by another American Samoa member on the Council, Christinna Lutu-Sanchez, who inquired about how long the appeals process takes.

Tucher responded, “I don’t know,” adding that it will take time. He cited for example a recent case his office was involved with, which lasted for three years. He explained that there may be oral arguments at some point.

“They might not have oral arguments. They might decide on the briefs and after that it may take a year or two. It’s not a fast procedure,” he explained.

Another American Samoa member on the Council, Taotasi Archie Soliai asked about the chance of a mediation occurring to reach a decision on the matter.

“I’m participating in the mediation and I can’t predict,” Tucher explained, noting that mediation is not unusual for appeals in the 9th circuit. For this case, "both parties expressed interest in participating in mediation.”

“There have been ongoing discussions. I shouldn’t assume that mediation will be successful,” he pointed out. “It’s simply an alternate route for the parties to achieve a quick resolution because appeals take so long.”

He said the mediator who works with the court, is assigned to be the mediator.

According to court records, Roxanne G. Ashe is mediator for this case.

Among the action items for the Council during its meeting is consideration of taking final action on LVPA options that may improve economic efficiency of the larger longline vessels while taking into consideration, among other things, the need to prevent overfishing, impacts on small vessels, and protecting American Samoa cultural fishing practices.  (See Samoa News Feb. 13th edition for the press release and table of options for consideration.)