By holding that the Deeds of Cession 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, according to federal defendants in the large vessel prohibited area (LVPA) lawsuit.

The federal defendants, including the US Commerce Department and NMFS, made the argument in its 99-page motion and support documents filed yesterday with the Honolulu federal court, which was requested to “reconsider and amend” its judgment “with respect to two issues — standing and remedy.”

Plaintiff is the Territory of American Samoa, through the Governor’s Office, or ASG.

US District Court Judge Leslie Kobayashi in March this year ruled in favor of American Samoa, saying that the NMFS’ decision in 2016 to reduce the LVPA in territorial waters is invalid and that NMFS’ adoption of the 2016 LVPA rule, which became effective on Feb. 3, 2016 “was arbitrary and capricious”.

The major focus of the plaintiff’s lawsuit centered around the two Deeds of Cession — 1900 Deed of Cession for Tutuila and Aunu’u islands and the 1904 Deeds of Cession for Manu’a islands — with the United States.

Kobayashi says 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 says the court concluded that the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices.

RECONSIDERATION MOTION

As a threshold matter, the federal defendants argue that the Court should reconsider its holding that plaintiff had standing as “parens patriae” to challenge the 2016 LVPA Rule.

(Parens Patriae is Latin for "parent of his or her country”. The power of the state to act as guardian for those who are unable to care for themselves, according to Cornell University Law School website.)

Defendants contend that the Supreme Court and Ninth Circuit precedent make clear that neither a State nor a Territory of the United States can have standing as parens patriae to bring an action against the federal government.

Even if plaintiff could overcome this controlling precedent, defendants argue that plaintiff did not satisfy the test for parens patriae standing because it failed to establish that:

•     individual American Samoans are incapable of challenging the 2016 LVPA Rule on their own behalf; and

•     the Rule threatens plaintiff’s alleged cultural fishing rights with “actual and imminent” harm.

A long footnote in the defense motion states that while defendants do not seek reconsideration of the merits of the court’s judgment, “its implications are far-reaching.”

For example, in holding that the Deeds “require the United States to preserve American Samoan cultural fishing practices,” the court created a new requirement that NMFS’s fishing regulations protect “cultural fishing practices” in the U.S. EEZ around American Samoa.

“Such a requirement is concerning, as that term is undefined and appears nowhere in either the Deeds or the [federal] Magnuson Act,” according to the defense, who added that the “record shows that NMFS did consider the impact of the 2016 LVPA Rule on fishing communities and other fishery sectors, including fishing by alias — the nexus for the plaintiff’s alleged cultural fishing rights.”

Defendants said it is also concerned that the court’s judgment has serious implications for 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.

They argue that the 2016 LVPA Rule was the result of a comprehensive, multi-year effort by NMFS and the Western Pacific Regional Fishery Management Council to ensure the LVPA complies with the Magnuson Act, including satisfying the requirements that regulatory measures be justified under the best scientific information available, be fair and equitable to all fishermen, and not result in inefficient operations or excessive costs.

The defendants went on to argue that the court lacks subject matter jurisdiction over plaintiff’s complaint and summary judgment should be granted in favor of defendants.

Alternatively, the defense further argued, the court should reconsider its “vacatur” of the 2016 LVPA Rule because the court awarded that remedy without balancing the equities and had it done so, it would have determined that vacatur is not warranted.

(Vacatur — Latin for ‘it is vacated’. A rule or order that sets aside a judgment or annuls a proceeding, according to Cornell University website.)

According to the defense, vacatur is not warranted here because it would result in highly disruptive consequences that outweigh the seriousness of NMFS’s error.

It went on to point out that administrative record indicates that vacatur would disrupt the ability of American Samoan longliners to operate more efficiently after years of mounting financial losses that have threatened the fishery’s survival.

Moreover, data after one year of operation under the 2016 LVPA Rule indicates the Rule has improved the efficiency of the longliners without having any adverse impact on catch and catch rates of stocks harvested by other American Samoa fisheries, including pelagic troll and bottomfish sectors, including alias.

“In fact, the pelagic troll sector actually increased its harvests with the Rule in place,” according to the defense. “In other words, the record and 2016 data show that remand without vacatur to correct the error identified by the court will not harm any other fishing sector, including alias.”

The defense said “remand” the 2016 LVPA back to NMFS without vacatur is also appropriate here because the record shows that there is a serious possibility that NMFS can cure the error in the 2016 LVPA Rule on remand, and the disruption to the American Samoan longline fishery that would result from vacatur could prove unnecessary.

“Specifically, NMFS considered the potential effects of the Rule on all American Samoan fisheries, including alias, and concluded the Rule would maintain fishing opportunities and not result in gear interactions,” the defense said.

“Accordingly, NMFS could, upon consideration of the Deeds as ‘other applicable law’ pursuant to the court’s holding, promulgate the same rule,” the defendants said. “Under these circumstances, equity strongly favors remanding the Rule to NMFS without vacatur.

Defendants therefore request that if the court disagrees as to standing that the court reconsider and amend its judgment to remand the Rule to NMFS without vacatur and order NMFS to complete remand by no earlier than fifteen months after the court’s order ruling on the defense’s current motion.

Samoa News will report in future editions on a wide range of issues covered by the defense motion. As previously reported by Samoa News, the governor has directed Attorney General Talauega Eleasalo Alo to prepare to fight in court on whenever the next legal step is taken by the defendants.