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U.S. Fisheries claims American Samoa has no standing to sue feds

National Marine Fisheries Service logo

Pago Pago, AMERICAN SAMOA — The legal battle over the reduction of the Large Vessel Prohibited Area (LVPA) in territorial waters, filed by ASG is finally moving forward. The battle is between the Territory of American Samoa and the US National Marine Fisheries Service (NMFS), with NMFS arguing that among other things ASG has no standing to sue the federal government.

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 (1900 for Tutuila and Aunu’u, and 1904 for Manu’a island) 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.

Also a defendant in the case is the executive director of the Honolulu-based Western Pacific Regional Fishery Management Council (WPRFMC) that held public hearings on reduction of the LVPA and made the reduction-recommendation to the US Secretary of Commerce, who approved it.

Yesterday, the federal defendants filed a 55-page brief that seeks to “reverse” the lower court’s decision, arguing that the district court “erred... in holding that ASG has ‘parens patriae’ standing to sue the federal government.”

(“parens patriae” is a Latin phrase which means the power of the state to act as guardian for those who are unable to care for themselves, according to the Legal Institute website. ASG has used a similar argument, for its Article III standing, to successfully argue to be included in the US Citizenship case pending at the federal court in Salt Lake City, Utah.)

The defendants contend that ASG “lacks standing to bring this action”, arguing “it is settled law that even a state does not have standing as parens patriae to bring an action against the federal government,” and “just as a state may not represent its people in a suit against the federal government, ASG may not either.”

Lacking such authority, according to the defendants, “ASG has failed to establish Article III standing because it has not established an injury in fact,” noting that ASG filed no declarations in support of its injury allegations, as it must, to establish injury at the summary judgment stage.”

Even considering the administrative record, the defendants said, record shows at most that ASG was “worried” about potential impacts, but worry and speculation fail to establish the required concrete and actual injury in fact.

And assuming that ASG has standing, the defendants argue that the judgment should be reversed on the merits. “Because the cessions [treaties] do not reserve any fishing rights in the EEZ to ASG or to the people of American Samoa, the cessions are not ‘applicable law’ under the federal Magnuson Act that NMFS was required to consider.

“The text of the cessions says nothing about fishing or marine resources or collective fishing rights,” defendants point out. “They instead refer only to individual rights, and not communal or collective property rights.”

Moreover, the cessions address “lands and other property,” not fishing rights, according to the defense, adding that the US Congress joint resolution ratifying the cessions is also clear that the cessions reserve only individual rights, and not any collective fishing rights.”

The resolution, the defense claims, states that the cessions cede “all rights of sovereignty of whatsoever kind.”

“Even if the cessions reserved some fishing rights, those rights would not extend to the waters at issue here, which were the high seas both at the time of the cessions in 1900 and 1904 and at the time of Congress’s ratification in 1929,” the defense continues.

“Thus, the cessions’ reference to ‘property’ could not have included exclusive fishing rights on the high seas contrary to long-established law.”

And even if the cessions established fishing rights such that they are applicable law under the Magnuson Act, the defense said, “NMFS’s action should be upheld”.

According to the defendants, the Magnuson Act requires NMFS to consider the impact on American Samoa fishing communities, “and the agency did so here.”

The defendants said ASG is represented on the WPRFMC, and NMFS conducted a public hearing in American Samoa.

“The agency then examined potential impacts on 'alia fishing, which is the very type of fishing that ASG identifies as connected to the claimed cultural fishing rights, and it reasonably concluded that such impacts would not be significant.”

The US Justice Department Environment and Natural Resources Division represent the defendants, who also filed documents with briefs.

According to federal court records, ASG has until Mar. 25 to file a response.