Territory asks the fed court to dismiss Marine Fisheries motion

Plaintiff: Defendants recycling old arguments nothing new
fili@samoanews.com

With federal defendants offering no new evidence in the Large Vessel Prohibited Area (LVPA) legal battle, the Territory of American Samoa has asked the federal court in Honolulu to dismiss defendants’ motion for reconsideration and to amend the court’s judgement.

Early this month, the federal defendants, including the US Commerce Department and US National Marine Fisheries asked the federal court to “reconsider and amend” its judgment, which was in favor of plaintiff, the Territory of American Samoa, through the Governor’s Office, or ASG.

US District Court Judge Leslie Kobayashi in March this year ruled in favor of American Samoa, saying that the NMFS’ decision in 2016 to reduce the LVPA in territorial waters is invalid and that NMFS’ adoption of the 2016 LVPA rule, which became effective on Feb. 3, 2016 “was arbitrary and capricious”.

The major focus of the plaintiff’s lawsuit centered around the two Deeds of Cession — 1900 Deed of Cession for Tutuila and Aunu’u islands and the 1904 Deeds of Cession for Manu’a islands — with the United States.

Kobayashi agreed with ASG saying that the court concluded that the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices. 

However, the federal defendants requested the court, to among other things, reconsider its judgement. See Samoa News edition May 11th on federal defendants arguments.

PLAINTIFF’S OBJECTION

Last Thursday, plaintiff filed its opposition motion, saying that federal defendants claimed that the court erred in granting plaintiffs “parens patriae” standing. Defendants also claim that the court erred in remanding and vacating the 2016 LVPA rule.

(Parens Patriae is Latin for "parent of his or her country”. The power of the state to act as guardian for those who are unable to care for themselves, according to Cornell University Law School website. (Vacatur — Latin for ‘it is vacated’. A rule or order that sets aside a judgment or annuls a proceeding, according to Cornell University website.)

To succeed in its motion, plaintiff argued that defendants must show one of three things:

•     newly discovered evidence that was not “available to defendants”;

•     the court committed clear error or the initial decision was manifestly unjust; or

•     there is an intervening change in the law.

The plaintiff argued that the defendants “offer no new evidence that was not available to the defendants” before the summary judgement hearing to support its motion.

“Likewise, defendants do not claim an intervening change in the law,” the plaintiffs argued, and noted that the defendants motion is based entirely on the assertion that reconsideration is justified in order to correct a clear error or prevent manifest injustice,

On the issue of standing, plaintiff argued that defendants failed to prove that the court committed clear error or that its ruling was manifestly unjust. Further, the court correctly found that plaintiff has “parens patriae” standing to bring this action.

Plaintiff further argued that it does not seek to invalidate federal statute for the benefit of its people. “Instead, plaintiff commenced this action to stop defendants from violating federal statutes — the Magnuson Stevens Act, including plaintiff’s quasi-sovereign rights which are protected by federal statute- Deeds of Cession.”

In its motion for reconsideration, the defendants either recycle the same arguments that this court has already rejected, or asserted slightly new theories supported by different case law that were readily available to defendant during summary judgement, according to plaintiff.

“Either way, these new theories or arguments cannot form the basis of motion for reconsideration,” the plaintiffs argued. “Likewise, defendants failed to prove that the decision to remand and vacate the 2016 LVPA Rule amounts to clear error or manifest injustice.”

According to the plaintiff, the court “properly balanced the agency error with the disruptive consequences of vacatur.”

“Here the agency [referring to NMFS] error — failing to consider the Deeds of Cession — was significant because it infected the entire process of promulgating a valid rule,” plaintiff argued. “As to disruptive consequences of vacatur, defendants offer nothing but preliminary reports and speculation.”

“Because defendants cannot establish clear error or manifest injustice in the court’s ruling on standing and order vacating the 2016 LVPA Rule,” plaintiffs asked that the defendants’ motion should be denied.

Plaintiff is represented by the Honolulu-based law firm of Imanaka Asato LLC, with attorneys Steven K.S. Chung and Michael Iosua arguing for ASG. Also attorney on record for this case is American Samoa Attorney General Talauega Eleasalo Ale.

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