Reactions voiced in federal court decision to deny motion in LVPA case
The Western Pacific Regional Fishery Management Council says it is disappointed that the federal court in Honolulu has denied the US National Oceanic and Atmospheric Administration’s motion to reconsider and to amend the court’s judgment in the Large Vessel Prohibited Area (LVPA) case.
Meanwhile a NOAA official says it's premature at this point to discuss any future actions following the federal court’s ruling.
The Council’s executive director Kitty Simonds, was among the defendants named in the LVPA lawsuit filed in March 2016 by the Territory of American Samoa - through the ASG. Other defendants are Michael D. Tosatto, the Regional Administrator for NOAA National Marine Fisheries Service (NMFS) for the Pacific Islands Regional Office. NMFS itself is also named as a defendant as well as top US Commerce Department (USDOC) officials.
Following a recommendation from the Council, based on a request from the US longline fleet in American Samoa, NMFS issued a final rule in February 2016 (the 2016 LVPA Rule) that reduces the LVPA from 50 miles to 20 miles. The reduced LVPA area gave the longline fleet additional fishing grounds, as they were faced with many challenges.
US District Court Judge Leslie Kobayashi this past March, issued a decision concluding that NMFS, NOAA, and USDOC in its 2016 LVPA Rule was “invalid because NMFS failed to consider whether the proposed rule was consistent with the Deeds of Cession” - referring to the 1900 Deed of Cession for Tutuila and Aunu’u; and the 1904 Deed of Cession for Manu’a.
The defendants then filed a motion for reconsideration and sought to amend the court’s judgment. The defendants allege that the court “made manifest errors of law or fact” but the court disagreed and on July 31, 2017, it issued a one-page ruling denying the defendants motion. Then last week Thursday (Aug. 10th) Kobayashi issued a more detailed ruling in an 18-page order spelling out specific reasons for doing so.
Among the issues raised by Kobayashi is that the Magnuson-Stevens Fishery Conservation and Management Act (MSA) requires NMFS to protect the resources in the LVPA by adopting rules and regulations that are “consistent with the fishery management plan, with the national standards and other provisions of this chapter [MSA], and with any other applicable law.”
“The Deeds of Cession constitute ‘any other applicable law’, with which NMFS rules and regulations must be consistent,” according to Kobayashi, who noted that the plaintiff is not seeking to apply the MSA to its people; it seeks to assert its rights under the MSA by using the Administrative Procedures Act’s established procedure to challenge arbitrary and capricious agency action.
USDOJ & NMFS REACTIONS
The defendants were represented by trial attorneys with the US Justice Department, including Mele Coleman who referred Samoa News questions and requests for comments to the USDOJ’s Public Affairs Office.
USDOJ spokesman, Mark Abueg said yesterday from Washington D.C. that the USDOJ “declines to comment”.
When asked for comments and a reaction to the court’s ruling, Tosatto told Samoa News yesterday, “We have received the Judge's decision...and we will be discussing the matter” with USDOJ attorneys.
Samoa News also asked what NMFS’ next legal move would be - does NMFS plan to appeal Kobayashi’s order to the federal appeal’s court, and if so, is there a time line on when an appeal would be filed.
“At this point, it would be premature to discuss future steps,” Tosatto said from Honolulu, noting that a notice of appeal is due within 60 days of the court's decision and order.
Responding to Samoa News request for comments, the Council said on Monday that it was “disappointed” with the court’s decision.
“The primary purpose of the regulatory action was to remove a regulatory burden on commercial fishermen that was no longer serving a management purpose, while providing urgently needed relief to a struggling local longline fishery,” the Council said in a prepared statement.
The Council’s action considered the needs of other commercial and recreational users by proposing to allow the American Samoa longline fleet to operate only within a portion of the LVPA, 50 miles to 12 miles from shore.
“The American Samoa longline fleet lands fish for the local cannery, provides fish to the local community, employs dozens of people, and significantly contributes to the local economy and culture, and supports businesses,” the Council wrote. “Owners of the longline vessels are made up of mostly indigenous American Samoans.”
“We regret that the Court came to a different conclusion in interpreting the Deeds of Cession. Nevertheless, going forward, we are evaluating options to address the Court’s decision that the Rule must preserve and protect cultural fishing in American Samoa,” the Council continued.
It notes that in June this year, the Council wrote to Gov. Lolo Moliga requesting a consultation with his administration on cultural fishing. “We look forward to receiving the Governor’s response,” it says. “As part of the rule-making process, we will also seek the input of all interested stakeholders, including fishers and fishing communities.”
The Council says it remains committed to working with State and Territorial governments in conserving and managing commercial fisheries according to the national standards of the MSA which requires the Council to achieve optimum yield in each fishery while preventing overfishing.
“In so doing, the Magnuson-Stevens Act requires the Council to take into consideration the economic impacts of conservation and management measures on affected fishing groups and fishing communities,” it says.
A May 3, 2017 letter from the Tautai O Samoa Longline & Fishing Association to Gov. Lolo Matalasi Moliga was also submitted by the defendants into records of their motion for reconsideration.
The letter stated Tautai’s position on the proposal by the Lolo Administration to amend the LVPA to 25 miles from shore.
“While this Court respects the Association’s position, it declines to consider the letter because the letter is not relevant to the legal issues presented in the motion for reconsideration,” according to a footnote in Kobayashi’s ruling.
In a separate June 2nd letter, Tautai Association asked Kobayashi for inclusion in the legal battle over the LVPA, arguing that the U.S. longline fleet in American Samoa are the indigenous ones that have dwindled in numbers “and are now endangered and on the verge of extinction!”. (See Samoa News June 19th edition for details).
Kobayashi didn’t address Tautai’s June 2nd letter in her ruling.