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Legal battle over LVPA reduction in local waters will finally see some court action

U.S. Federal District Courthouse in Honolulu
Oral arguments scheduled for early next year

Pago Pago, AMERICAN SAMOA — The legal battle at a federal appeals court between the Territory of American Samoa — through ASG — and the US National Marine Fisheries Service (NMFS) over the reduction of the Large Vessel Prohibited Area in territorial waters is finally heading towards oral arguments scheduled for early next year.

NMFS had appealed to the US Ninth Circuit Court of Appeals over the Honolulu federal district court’s decision last year, in which a judge sided with plaintiff ASG, citing the Deeds of Cession (1900 for Tutuila and Aunu’u; and 1904 for Manu’a) invalidating the federal agency’s final rule in 2016 that reduced the LVPA, which was put in place more than 10 years ago to protect the local 'alia fleet.

In filings in June this year, NMFS reiterated its argument that, among other things, the Territory of American Samoa lacks standing to bring a lawsuit against the federal government, and requested a federal appeals court to reverse a ruling by the Honolulu federal court.

NMFS argued that the lower court “erred... in holding that ASG has ‘parens patriae’ standing to sue the federal government.”

(The phrase ‘parens patriae’ refers to the principle that political authority carries with it the responsibility for protection of citizens._

ASG officials and other local traditional leaders have been waiting to see where this case would end up in the appeal phase. Three months ago, the appeals court announced plans to hold oral arguments in Honolulu for cases that were appealed from the Honolulu federal court.

Yesterday, the 9th Circuit Court’s records show that oral arguments on four cases are scheduled to be heard on Feb. 9, 2020 at a courtroom at the US Bankruptcy Court in Honolulu. Among those cases is the LVPA case, in which federal agencies and officials appeal the district court’s judgment in favor of the Territory of American Samoa in an action challenging a rule issued by the NMFS under the federal Magnuson Act.

Attorney General Talauega Eleasalo Ale is expected to lead ASG’s legal team during oral arguments, which court records shows, is expected to last 20-minutes.

ASG’s filings in April this year, accused 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 had long argued that the 2016 final rule reducing the LVPA, “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 with the United States.