Confusion reigns over court decision to invalidate reduction of LVPA
Department of Marine of Wildlife Resources director Va’amua Henry Sesepasara has abstained from voting on a recommendation approved by the Western Pacific Regional Fishery Management Council regarding a Honolulu federal judge’s ruling invalidating the US National Marine Fisheries Service 2016 decision to reduce the Large Vessel Protected Area (LVPA) in waters of American Samoa.
Va’amua is the territorial government’s representative on the Council, which is concluding today its three-day 169th Meeting — streamed live online —in Honolulu. The other two American Samoa members on the Council are Christinna Lutu-Sanchez of Longline Services Inc. and Taotasi Archie Soliai of StarKist Samoa.
U.S District Court Judge Leslie E. Kobayashi ruled Monday that NMFS’ adoption of the 2016 LVPA Rule, which became effective on Feb. 3, 2016 is to be vacated, after finding the decision failed to take into account 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. (See Samoa News edition yesterday and Monday for more details.)
One of the recommendations the Council voted on yesterday, day two of the meeting, deals with the 2016 LVPA ruling in which the Council directs its staff to work with NMFS and the National Oceanic and Atmospheric Administration (NOAA) general counsel on reviewing the judge’s decision and to evaluate the next step, which could include requesting the court to stay the decision, pending reconsideration or appeal of the decision.
Additionally, staff is directed to present options for consideration at the Council’s next meeting in June for a Council recommendation on any necessary or appropriate LVPA regulations.
“As the governor’s representative to the Council, I would like to abstain from the vote on this issue,” Va’amua said before the vote was taken and was also noted once the voting was completed and the recommendation approved.
Before the vote was carried out, Lutu-Sanchez reiterated the importance of this recommendation, saying that during Tuesday’s meeting there were “many more questions that came from this [court] decision, rather than answers and we as Council` have an obligation to the community and stakeholders so that everyone understands what happens.”
“I suppose this is a way to answer some of those questions, but it’s mind boggling and just confusing overall. So if this is the next step forward, then so be it,” she said.
Council executive director Kitty Simonds says that if the general counsel “is writing something about this,” it’s something that will probably be useful to Council members.
Michael Tosatto, regional administrator of the NOAA Fisheries Service’s Pacific Islands Regional Office and a federal member on the Council, said he doesn't know if a memo will be drafted and shared by the general counsel.
“The judge’s ruling is still being evaluated,” said Tosatto, who added that there are “two things that we need to deal with. The first is how we react to the ruling in the legal system; the second issue is consequence of the ruling on... the fisheries... under an exemption.”
He pointed out that the court’s ruling “immediately vacates the NMFS regulation. So I will be commencing work to remove those regulations, while considering the legal options going forward.”
“It will take... a short time to remove those regulations. So in that short time, I do advise that fishermen follow prior LVPA framework, without the large vessel exemption,” he said.
The 2016 LVPA rule gives longline vessels 50 feet and over, more fishing grounds, by opening up a part of the LVPA that was closed to them when the first LVPA rule was established in 2002. The 2002 rule bars longline fishing from shoreline out to 50 miles, but the 2016 LVPA rule, reduces from 50 down to 12.
Meanwhile, Gov. Lolo Matalasi Moliga has written to the Fono about the court’s decision, which “supported our position, finding that federal agencies failed to take into sufficient consideration” the two cession deeds.
“This is an important decision, which can have a significant impact on our future relations with Washington D.C.,” the governor said in the letter, which was distributed to all lawmakers during their respective sessions on Tuesday.