NOAA cautious in motion for reconsideration of LVPA lawsuit
A legal counsel with the US National Oceanic and Atmospheric Administration says the federal defendants in the Large Vessel Prohibited Area (LVPA) lawsuit, are “cautious” in their motion for reconsideration now before the federal court in Honolulu.
Frederick W. Tucher, chief of the Pacific Islands Section of the NOAA Office of General Counsel, briefed, on Tuesday, the Western Pacific Regional Fishery Management Council on the status of the Territory of American Samoa’s federal lawsuit against the defendants, which include the National Marine Fisheries Service that last year issued a ruling reducing the LVPA from 50 to 12 in territorial waters. The 2016 LVPA Rule resulted in the lawsuit by the plaintiff — through the Governor’s Office and ASG.
As previously reported by Samoa News, US District Court Judge Leslie Kobayashi issued a decision earlier this year in March, in favor of ASG. Last month, the federal defendants filed a motion of reconsideration, and ASG has since asked the court to reject the motion, arguing that the court’s decision was proper.
In his briefing, Tucher told the Council meeting, which ends today, that the federal court found that NMFS, arbitrarily approved the 2016 LVPA rule and 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. Both are Deeds with the United States.)
“We looked at that case decision and decided to file a motion for reconsideration on two particular issues,” he explained, saying that the first one is “of standing — legal standing for American Samoa to bring this claim.”
“The second issue concerned the proper remedy. What was the appropriate remedy for the court to apply upon concluding that NMFS acted arbitrarily and capriciously,” Tucher further explained.
He said the defense also argued that the “court should have... asked us to file supplemental briefings on the... impact of the rule”, specifically the disruptive impact on the longliners and the ability of the NMFS “to address the deficiency identified by the court during the period of remand.”
“So we’ve asked for the court to do that balancing on remedy and to basically conclude that the [2016 LVPA] exemption rule was a good thing for American Samoa [based US] longliners that are currently struggling, operating in a serious loss and have been operating at a loss since about 2002,” he said. “We presented information from a one-year operation since the 2016 LVPA rule [was implemented] that shows no adverse impact of that rule on other fisheries sectors including alia boats.”
Additionally, the defense team has presented evidence to the court showing the impact or the relief that this rule has provided to American Samoa longliners during that one year of implementation of the 2016 LVPA rule.
“So we are cautious. Reconsideration is a difficult motion to prevail on,” he revealed publicly for the first known time. “We’re realistic, but we think we have some solid arguments.”
Tucher also stressed that the defense “did not seek reconsideration on the merits of the [court] decision” but focused on the two issues.
“We are looking for a responsibly prompt decision for obvious reasons,” he said. “We feel that the action was taken [by NMFS] to address serious economic distress on the longline fishery and we’re looking for the best as possible remedy solution at this time.”
NMFS’ rule reducing the LVPA from 50 to 12 followed a request in 2014 by the US longline fleet based in American Samoa, as they were facing various challenges resulting in vessels being tied up in port.
The Council staff report prepared ahead of this week’s meeting notes that the longline fishery also must contend with limited fishing grounds while also having the local government demand that they be forced out of the area from 12 to 50 nautical miles, which they were allowed under the 2016 LVPA rule.
Additionally, NMFS presented data showing improved catch rate and efficiency for albacore, and notes that catch rates for yellowfin tuna were higher not only for longline vessels, but also for other pelagic troll vessels.
The data is consistent with the federal government’s position that there is no competition between small and large boats.
Tucher told the Council there is no set date as to when the court will rule.
Samoa News notes that the LVPA rule covers US longline vessels that are 50 ft and larger.