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Update: Fishing rights to offshore waters of American Samoa

Federal District Court, Honolulu. [photo: All Hawaii News]
Federal defendants asked to file briefs regarding these rights

Attorneys representing the Territory of American Samoa, through ASG, in its lawsuit against federal defendants over the reduction of the Large Vessel Protected Area (LVPA) in territorial have requested the federal court in Honolulu to deny defendants’ new request to file briefs regarding rights to offshore waters of American Samoa.

After many motions were filed by both sides, since early last year, US District Court Judge Leslie E. Kobayashi heard oral arguments on Feb. 13 this year, on plaintiff’s summary judgment motion, which seeks to overturn the reduction of the LVPA, that had been preserved since 2002 for local alia fleet. Court records show that Kobayashi had taken plaintiff’s motion under advisement and will issue a written order, once a decision is reached.

However, federal defendants attorney, Mele Coleman, who is with the US Justice Department, wrote a Mar. 3 letter to Kobayashi, saying that during the Feb. 13 hearing, the court had asked federal defendants to clarify the nature of American Samoa's claim of fishing rights in offshore waters prior to conveyance of American Samoa to the U.S under the two Deeds of Cession.

Coleman said federal defendants believe that the Court's inquiry implicates questions of customary international law and its treatment of extraterritorial claims of ownership, sovereign rights, and jurisdiction as to the high sea areas located within the roughly 28,000 square miles of lands and waters of American Samoa. 

“These issues were not briefed by the parties and federal defendants do not believe that the court must resolve any of these issues in order [to] decide this case,” she argued. “Should the court deem supplemental briefing on its inquiry help, however, federal defendants offer to provide the court with such briefing.”

Prior to sending the letter to the court, federal defendants counsel conferred with Plaintiff’s attorneys who oppose supplemental briefing. And if the Court orders supplemental briefing, federal defendants request that the parties be allowed to confer and submit a proposed schedule and page limits for such briefing.

By Wednesday morning, the plaintiff’s legal team responded, in a letter to Kobayashi, saying that federal defendants request is improper and opposes the supplemental briefing for several reasons, including violation of civil procedure rules — federal defendants’ request was via letter, and it should have been done by an application filed for an order or other relief and not a letter.

Plaintiff’s attorneys recalled that the court “did in fact deny federal defendants' oral request at the [Feb. 13] hearing to provide supplemental briefing.” Plaintiffs are ordering atranscript of the hearing to verify this information.

Plaintiff’s attorneys also argued that it’s unfair for federal defendants to address another opportunity to argue an issue they chose to ignore during briefing and were unable to address despite repeated questioning by the court.

Plaintiff’s attorney says it addressed the issue of ownership of the approximately 28,000 square miles of lands and waters described in the Deeds of Cession in its pleadings and motion to the Court.

In its final argument, plaintiffs say federal defendants took a position on the aforesaid issue in their response to the lawsuit. Specifically, plaintiff said, federal defendants “have already admitted that the United States gained ownership of the lands and waters described in the [two] Deeds of Cession by way of the deeds.”

“In view of the fore going, we respectfully request that the Court deny federal defendants' request to provide supplemental briefing,” according to the plaintiff’s letter. Honolulu-based law firm Imanaka Asato along with Attorney General Talauega Eleasalo Ale represent the plaintiff, through the Governor’s Office and ASG.

The Deeds of Cession referred in the complaint and latest rounds of letters are the 1900 Deed for Tutuila and Aunu’u and the 1904 Deed for the Manu’a islands.

By late Wednesday afternoon Kobayashi in a one-page order denied federal defendants’ request, saying that the proposed supplemental briefing will not assist the court in ruling on the issues presented in the case.