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ASG lays out reasons for Supreme Court to review the LVPA case

U.S. Supreme Court building in Washington, D.C.
Applicability of the Deeds of Cession is of vital importance

Pago Pago, AMERICAN SAMOA — Attorneys representing the Territory of American Samoa — through ASG and the Governor’s Office —  are asking the United States Supreme Court to approve its “writ of certiorari” to review a federal appeal’s court ruling, which reversed a lower court decision dealing with the Large Vessel Protected Area (LVPA) in territorial waters.

The Territory, the Petitioner, contends that the question of applicability of the Deeds of Cession — the 1900 for Tutuila and Aunu’u and 1904 for the Manu’a islands —  to the Magnuson-Stevens Act rule making is of vital importance to American Samoans.

As previously reported by Samoa News, the Territory of American Samoa sued the US National Marine Fisheries Service (NMFS) and other federal officials over a 2016 rule in which NMFS reduced the LVPA from 50 miles to 12 to help the US locally based longline fleet.

The lawsuit argued among other things that the federal agency acted arbitrarily in changing the boundaries. The Territory argued that the final rule “threatened cultural fishing rights protected by the Deeds of Cession.”

The federal court in Honolulu, which heard the case, sided with American Samoa but NMFS and other federal defendants appealed the ruling to the Ninth Circuit Court of Appeals, whose three-judge panel reversed the lower court’s decision in a ruling issued last September.

The Territory filed its “writ of certiorari” petition in March and NMFS responded, asking the Supreme Court to denied it. (See Samoa News edition May 14th for details.)

(In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case.)

In its response brief filed May 26th, the territory points out that the Respondents’ brief confirms that this Court should grant the petition for a writ of certiorari and review the Ninth Circuit’s decision summarily reversing the lower court’s well-reasoned opinion and, in doing so, holding that the United States may disregard its statutory obligation to account for its indigenous citizens’ cultural traditions when enacting rules that directly affect those traditions.

According to the Petitioner, the Respondents focus their brief entirely on the merits—claiming that Petitioner lacks standing, that the “contents” of the Deeds of Cession do not apply to Samoan cultural fishing practices, and that the federal government need not consider the cessions when regulating the exclusive economic zone surrounding American Samoa because the United States considered it to be the “high seas” when the cessions were signed.

The Petitioner points out that the Ninth Circuit’s “opinion failed entirely to engage on the language of the cessions, the citizens of American Samoa, and the United States are left with no guidance as to how, whether, and in what context they apply.”

The Petitioner also said that Respondents’ merits arguments—which largely consist of post-hoc rationalizations for the NMFS’s decision to ignore the cessions despite official comments by American Samoan officials invoking them—do nothing to alleviate this uncertainty.

“The question of the applicability of the Deeds of Cession to Magnuson-Stevens Act rule making is of vital importance to American Samoans,” the Petitioner contends. “With a tiny population and no voting member of Congress, American Samoans are vulnerable to administrative overreach.”

And this is “especially true when it comes to its fisheries, given American Samoa’s unique geography as a remote island territory surrounded by the vast Pacific Ocean.”

If the United States and its agencies need not account for the Deeds of Cession as “other applicable law” in the context of fisheries rule making, it is difficult to imagine a scenario of any import in which they need ever consider the cessions, according to the petitioner.

“The denial of certiorari in this case would not only serve a devastating blow to the people of American Samoa, but it would effectively endorse the NMFS’s practice of ignoring territorial government officials and disregarding the Deeds of Cession,” Petitioner argued.

Additionally, denying certiorari here would foreclose further development of this issue, and let stand a precedent that administrators need only “consider the input offered” by territorial leaders before disregarding the United States’ binding obligations to its territories.

Petitioner argued that to allow the Ninth Circuit to sanction the NMFS’s rule making process here is to ensure there will be nothing to protect Samoan cultural fishing rights from the actions of NMFS administrators.

“By failing to consider the Deeds of Cession, NMFS effectively denies American Samoa any recourse to protect cultural fishing rights from federal rule making,” Petitioner further argued. “Without the protection of the Deeds, American Samoans would be at the whim of any agency that seeks to disregard the fa’a Samoa.”

In closing the Territory requested the Supreme Court to grant its petition. Court records show that a conference hearing is set for June 17th.

Samoa News notes that the US longliner fleet based in American Samoa support the 2016 LVPA rule.