US DOJ denies Maoputasi County claim for share of ASG’s portion of StarKist civil penalty
The US Justice Department disagrees with Paramount Chief Mauga T. Asuega’s request for Maoputasi County to get a share of what ASG is proposed to receive in a civil penalty to be paid by StarKist Co., for violating federal and local environmental laws in territorial waters.
“Since the American Samoan Code [Annotated] is insufficient to provide the [Maoputasi] County with the legal right to seek civil penalties, the United States is not authorized to share penalties with the County,” said Henry S. Friedman, assistant chief of Environmental Enforcement Section of USDOJ in court filings.
Under the proposed Consent Decree reached Dec. 22, 2017, the defendants — StarKist Co., and StarKist Samoa — will pay $6.5 million in a civil penalty, with $2.6 million to ASG and $3.9 million to the federal government.
The Decree, subject to court approval, stems from a second Amended Complaint filed by the feds, along with ASG, against the plaintiffs. The case is before the federal court in Pittsburgh, Pennsylvania.
A 30-day public comment period, which commenced on Jan. 2, 2018, followed after all parties agreed to the Decree. On Monday this week, the USDOJ filed a memorandum supporting the Decree and for the court to approve it.
Among documents in USDOJ’s filing were public comments received during the comment period and one of them was submitted by Mauga, who “notes, with satisfaction, the recognition of the harm caused by the violations and approves of the specific remedial directives.”
(Local attorney Charles Alailima, who submitted the written comments, represents Mauga.)
However, Mauga requested that the USDOJ consider the portion of the civil penalty being paid to the American Samoan government be divided “equally between” ASG — which has overall responsibility for enforcement of environmental laws in the Territory — and Ma'oputasi County Council, “which is specifically charged by statute with the supervision of the cleanliness of the specific county that has been directly affected by these StarKist violations.”
The statute cited by Mauga is a provision of ASCA 5.0204: “County Councils shall be chosen in accordance with Samoan custom, ‘and shall be charged especially with the supervision of the cleanliness of the county’, planting of the lands, making and clearing of goads, and all matters of a local nature concerning the county.”
Furthermore, similar Village Council responsibility within their village boundaries is found in ASCA 5.0305(a).
According to the Paramount Chief, the inclusion of the Ma'oputasi County Council as a part of this settlement would have “an extremely positive effect for the future enforcement of the federal interest in maintaining the environmental quality of the Pago Harbor.”
“It would encourage traditional chiefs and families of the Ma'oputasi villages to educate themselves in environmental laws that protect them directly and enlist their support in monitoring the harbor and promptly reporting violations to the appropriate ASG and federal agencies,” Mauga stated.
Furthermore, it would also make potential polluting industries and operators within Pago Harbor aware that their operations are being monitored for compliance with local and federal EPA laws, not just by faraway federal agencies or understaffed and often times conflicted ASG agencies, but by the entire community surrounding them.
Mauga recommended that portion of the settlement award to his county should stipulate that funds be used to undertake statutory responsibilities under ASCA 5.0204 and ASCA 5.0305(a).
In USDOJ’s 21-page memorandum, Friedman noted that the feds are “very mindful of the Paramount Chief’s statements about the importance of the County Councils” within the territory and also carefully considered his request.
Friedman explained that USEPA’s Penalty Policy allows for dividing penalties with state and local governments under certain circumstances, as this encourages these governments to develop and maintain active enforcement programs and also fosters federal and state and local cooperation in environmental enforcement.
Additionally, dividing the StarKist penalty between the United States and ASG is fully consistent with the goals of the USEPA Penalty Policy.
However, he said that the United States’ policies governing penalty sharing explicitly require, as a predicate to penalty sharing with a state or local government that the government must have and must assert an independent claim that supports its right to civil penalties.
He contends that ASCA 5.0204 — the statute cited by Mauga “does not provide authority for the County to bring civil claims for environmental violations.” And since the statue is insufficient, sharing of the penalty is not permitted.
According to the USDOJ, Consent Decree serves the purposes and goals of the operative statutes by reducing water pollution, minimizing risks of releases of hazardous air pollutants and oil to waters, and ensuring that the StarKist facility will remain in compliance with these statutes for the foreseeable future.
“It does so without the need for costly and time-consuming litigation,” it says, adding that the Decree encourages voluntary settlement and provides a “speedy and reasonable remedy for the dispute.”