Partial federal govt shutdown delays further action in LVPA case
Pago Pago, AMERICAN SAMOA — The partial federal government shutdown has resulted in a delay of filing motions in the ongoing legal battle between the Territory of American Samoa — through the ASG — and the US National Marine Fisheries Service (NMFS) over the reduction of the Large Vessel Prohibited Area (LVPA) in territorial waters.
The LVPA case is currently before the US Ninth Circuit Court of Appeals after NMFS, along with US Department of Commerce officials (federal defendants), appealed a Honolulu federal court decision in which the judge sided with plaintiff ASG, citing the Deeds of Cession and 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.
Last month, the appeals court granted federal-defendants' request to continue to Jan. 16, 2019 the deadline for filing opening briefs in this case. Among the reasons cited in the request, is the need for additional time for other federal officials to review it, and whether to continue with the appeals process. (See Samoa News Dec. 19, 2018 edition for details.)
Federal defendants are represented by attorneys with the US Department of Justice, and a post on their website notes the FY 2019 Contingency Plan for USDOJ operations during a lapse in appropriations - since the partial federal shutdown began on Dec. 22, 2018.
The 13-page document details USDOJ operations that will continue during the shutdown, and this includes “emergencies involving the safety of human life or the protection of property,” i.e., where there is a reasonable likelihood that the safety of human life or the protection of property would be compromised, in some significant degree, by delay in the performance of the function in question.
With respect to litigation, USDOJ’s plan assumes that the federal Judicial Branch will continue to operate through the furlough. Therefore, according to the plan, criminal litigation will continue without interruption as an activity essential to the safety of human life and the protection of property.
However, civil litigation “will be curtailed or postponed” to the extent that this can be done without compromising to a significant degree the safety of human life or the protection of property, according to the USDOJ plan.
Two members of the local legal community told Samoa News recently that the LVPA case falls under the “civil litigation” category and it would also affect other pending “civil” matters in the federal court where there is USDOJ involvement.
Last Thursday, Jan. 10th, USDOJ requested a “stay of briefings” scheduled for the filing deadline of Jan. 16th, due to the lapse of funding.
USDOJ attorney Robert J. Lundman explained that as of Dec. 21, 2018, the appropriations act that had been funding the Department expired and appropriations to the Department lapsed. And the same is true for several other executive agencies, including the federal defendants.
Absent an appropriation, USDO “attorneys and employees of the federal defendants are prohibited from working, even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or the protection of property’,” he explained.
According to Lundman, attorney for the plaintiffs does not oppose the federal defendants request for “a stay of briefing in this case until Department of Justice attorneys are permitted to resume their usual civil litigation functions.”
Last Friday, the appeals court granted the request for a case that has still drawn interest from both local and off island readers - including non-Samoans, who told Samoa News they are closely monitoring what the appeals court will say about the Honolulu federal court siding with ASG on the “Deeds of Cession” matter.