ASG accuses Nat'l Marine Fisheries Service of treating Deeds of Cession with 'utter disregard'
Pago Pago, AMERICAN SAMOA — The Territory of American Samoa — through the American Samoa Government — has accused the US National Marine Fisheries Service (NMFS) of refusing to acknowledge the Deeds of Cession which constitute “other applicable [federal] law” and has treated the Deeds “with utter disregard”, questioning its relevance and why “the natives of American Samoa continue to raise it as an issue.”
ASG made the claims in its 61-page brief filed Wednesday this week at the Ninth Circuit Court of Appeals, where NMFS had appealed last year the lower court’s decision, invalidating the 2016 final ruling that reduced the Large Vessel Protected Area (LVPA) in territorial waters, preserved for more than 10 years for the local 'alia fleet.
NMFS on Feb. 3, 2016 issued a final rule under the federal Magnuson-Stevens Act (MSA) reducing the LVPA from 50 to 20 miles. Plaintiff, Territory of American Samoa — through ASG — sued NMFS to set aside the final rule as a violation of the MSA.
ASG had argued that the final rule “threatened cultural fishing rights protected by the Deeds” — the Deed of Cession for Tutuila and Aunu’u in 1900 and the 1904 Deed for the Manu’a islands.
ASG contends that the MSA mandates that any final rule under the statute must be consistent with, among other requirements, “any other applicable law”.
But the NMFS disagreed.
Besides NMFS, other defendants included the US Commerce Department and its top officials. The federal court in Honolulu sided with ASG and invalidated the 2016 LVPA rule, prompting NMFS to file an appeal to the Ninth Circuit.
(See Samoa News Feb. 22nd edition on defendants motion to overturn the lower court’s decision.)
In its motion filed with the Ninth Circuit, ASG said it initiated the lawsuit “to enforce the promises made by the United States Government to the indigenous people of Tutuila, Aunu’u and Manu’a in 1900 and 1904”.
“The promises — used to convince the island natives to peacefully cede control of their lands, properties and waters to the U.S. — were duly recorded” in the two separate Deeds, which are codified as federal law and obligates the U.S. “to protect the rights and customs of the people of American Samoa, including cultural fishing rights within the ceded area”, said ASG in its motion.
Attorney General Talauega Eleasalo Ale is leading the ASG legal team.
“At the core of this action is NMFS’s refusal to acknowledge that the Deeds of Cession constitute “other applicable law” which must be considered on par with other federal laws in promulgating its new rule,” ASG argues, adding that this “refusal colored the entire rule-making process and prevented NMFS from complying with the MSA mandate: ensure that the new rule is consistent with the Deeds.”
Since it refused to consider the Deeds as “other applicable law”, NMFS could not and did not place the same value or weight on the terms of the Deeds as it did with other federal laws that were deemed “applicable,” ASG further argued.
“In fact, NMFS treated the Deeds with utter disregard throughout the 2016 LVPA rule-making process, questioning its relevance and why the natives of American Samoa continue to raise it as an issue.
“This disdain is even evident in its opening brief before this court, where NMFS openly questions whether the Deeds have any effect on the U.S authority over American Samoa.
“NMFS’ dismissive attitude towards the Deeds — despite containing an explicit grant of over 28,000 square miles of land and large bodies of water to the U.S., and explicit promises by the United States Government to preserve the rights and cultural practices of American Samoans within the ceded area — do not protect the rights of American Samoans to practice cultural fishing within that area,” ASG continued.
According to ASG, the lower court correctly rejected NMFS’s “stained analysis” and set aside the 2016 LVPA Rule as a violation of the Deeds and MSA. The lower court also correctly held that ASG has standing to sue the federal government to set aside the 2016 LVPA rule and enforce the Deeds and MSA.
ASG said the action by NMFS “constitutes a direct attack on the validity of the Deeds and the rights and promises therein.”
ASG says NMFS’s conclusion that the Deeds are not “applicable law” and therefore may not be given the same weight as other “applicable” federal laws “inflicts a stinging direct injury on the American Samoa Government and every living native of American Samoa.”
“These actions strike at the core of our existence as a government and as a group of native people who have sworn allegiance of the United States for over a century,” ASG said, adding that as the governing authority of the Territory, ASG is obligated to bring this action to enforce the terms of the Deeds and the MSA.
Although it may seem “peculiar to NMFS,” the “Samoan culture directs the daily activities in American Samoa and cultural practices are ardently followed in much the same ways as in the time the Deeds were signed.”
“ASG has maintained this lawsuit to ensure its populace can continue to practice Samoan culture without improper interference.”
ASG said NMFS has failed to demonstrate that the lower court erred in its decision and asks the appeals court to affirm the lower court’s order, setting aside the 2016 LVPA Rule.