Pago Pago, AMERICAN SAMOA — A federal judge in Honolulu has not said when she will decide whether federal regulators violated the Endangered Species Act by signing off on a seabed mining lease sale off American Samoa, and a ruling may not come before the Nov. 19 auction.

Judge Jill Otake took the case under advisement after an Oct. 30 hearing, J.V. Langkilde, an attorney for Earthjustice, told The Guam Daily Post. Earthjustice represents the plaintiffs, Fa‘asao Amerika Samoa and the Conservation Council for Hawai‘i. Otake is preparing a written decision and told the parties she would issue it on a timeline useful to them, he said.

That does not guarantee a ruling ahead of the sale. Langkilde said he does not know when it will arrive, though he believes Otake “has made it quite clear that she’s going to aim to issue a quick decision.”

The case matters to Guam because the federal government is preparing a similar lease sale in waters much closer to the island. The Marine Minerals Administration plans a Dec. 16 lease sale off the Commonwealth of the Northern Mariana Islands, and the closest lease area sits about 47 miles from Guam. The same federal agency, the National Marine Fisheries Service, reviewed the effects on protected species in both locations.

“It was limited. It didn’t look at the effects of actual mining,” Langkilde said of the Marianas review, which he described as “the exact same sort of consultation” the agency conducted for American Samoa. If Otake finds the law was violated in [American] Samoa, he said, “It's extremely likely then that the Endangered Species Act was violated in the Mariana Islands.”

In the Marianas filing, the plaintiffs say the fisheries service found that 14 protected species could be affected, including humpback whales, five sea turtle species, giant manta rays and coral. Critical habitat for one coral species has been designated in the coastal waters of Guam and the CNMI.

The dispute centers on a finding by the fisheries service that leasing is not likely to adversely affect protected species, including whales, sharks and sea turtles. Earthjustice argues that the review ignored what comes after a sale, primarily commercial mining. “We strongly believe that the law required a full evaluation of all impacts of the lease sale,” Langkilde said. Earthjustice attorney Chris Eaton argued the case for the plaintiffs, and government lawyers responded.

In court filings in the [American] Samoa case, federal attorneys have called risks to protected species at the lease stage “virtually nonexistent” and said a court could still set aside leases later. The Marine Minerals Administration says a winning bid authorizes only preliminary work, such as mapping and sampling, and that any mining would require a separate plan and environmental review. Interior Secretary Doug Burgum told G20 energy ministers Sept. 14 that seabed mining permits could be issued “within months.”

A sale before the court rules could complicate the litigation. Once a company buys a lease, Langkilde said, it will want a role in the case, turning a dispute between two sides into one involving three: the plaintiffs, the government and the leaseholder. “Now it’s not just, was the law violated? But was the law violated, and now what do we do about that now that a lease has been purchased?” he said.

If Otake sides with the plaintiffs, Earthjustice believes the agency would pause the sale to comply with the law, Langkilde said. A pause would not end the dispute. Earthjustice has filed a separate complaint on behalf of the same two groups and a new client, raising different claims, and Langkilde said it would make sense to litigate those issues while the sale is on hold.

The Marianas case is proceeding separately. Earthjustice filed a motion for summary judgment Oct. 2 on behalf of Our Common Wealth 670, PåganWatch, the Conservation Council for Hawaiʻi and the Center for Biological Diversity, asking Otake to vacate the fisheries service’s Aug. 10 finding.

Earthjustice plans to file its final brief Friday, Langkilde said. He expects a [American] Samoa decision within a few weeks, followed by a Marianas ruling “probably shortly after that, because the issues are so similar.” He stressed that the timing is his estimate, not a court schedule.

Guam’s government is not a plaintiff in either case. Gov. Lou Leon Guerrero asked the Marine Minerals Administration in an Oct. 20 letter to pause the Marianas sale until the island has a meaningful say, and her office has said it will evaluate legal options but has not announced a lawsuit.

Guam law, Public Law 38-129, bans seabed mining in territorial waters and bars the use of the island’s ports and waters as staging or supply bases for extraction fleets unless Guam and federal authorities authorize it.

Langkilde was unsure whether Earthjustice would appeal if the rulings go against the groups. “It’s an important question, but one I think I’ll have to wait and see what the judge actually decides,” he said.

For now, the lease sales remain on the calendar, but the court rulings do not.