Federal court denies NMFS motion for reconsideration
The federal court in Honolulu has denied the US National Marine Fisheries Service (NMFS) motion for reconsideration, to amend the court decision issued this past March that found that the NMFS 2016 rule to reduce from 50 to 20 miles the Large Vessel Prohibited Area (LVPA) in territorial waters “was arbitrary and capricious”.
“The court has considered the Motion for Reconsideration as a non-hearing matter,” according to the one-page decision issued this past Monday. “After careful review of the motion, supporting and opposing memoranda, and the relevant legal authority, the Motion for Reconsideration is hereby denied.”
According to the decision, a written order by the court will follow, that will supersede this ruling. It's not clear when the written order will be rendered by the court.
Besides NMFS, other defendants in the case were the US Commerce Department, and NOAA fisheries. NMFS issued a 2016 LVPA rule which became effective on Feb. 3, 2016.
Plaintiff is the Territory of American Samoa, through the Governor’s Office, or ASG. The major focus of the plaintiff’s lawsuit, filed in March 2016, centered around the two Deeds of Cession — 1900 Deed of Cession for Tutuila and Aunu’u islands and the 1904 Deed of Cession for Manu’a islands — with the United States.
In her ruling issued earlier this year in March, US District Court Leslie Kobayashi sided with the plaintiff and said the Deeds preserved the American Samoans’ right to use their “property” to continue their customary practices, although the Deeds do not specifically identify those customary practices. Kobayashi said the court concluded that the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices.
Among the defendants' arguments in its motion for reconsideration to amend the court judgement, is that by holding that the Deeds require the United States to preserve American Samoan cultural fishing, the federal court created a new requirement that National Marine Fisheries Service’s fishing regulations protect “cultural fishing practices” in the U.S. Exclusive Economic Zone (EEZ) around American Samoa.
Defendants said there is also concern that the court’s judgment has serious implications on the NMFS’s ability to implement the Magnuson-Stevens Fishery Conservation and Management Act because in effect, the judgment allows plaintiff to select winners — 'alia fishermen — and losers — large vessel longliners — among its own citizens in the competition for fishery resources under exclusive federal management. (See Samoa News May 11 edition for details.)
However, in its motion, the plaintiff argued that the 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 plaintiff argued and noted that the court didn’t commit any error in its decision. (See Samoa News May 30 edition for details.)
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 an attorney on record for this case is American Samoa Attorney General Talauega Eleasalo Ale.