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Feds continue to ignore call from traditional leaders about local issues, says attorney

Latest: Public notice for aquaculture meeting posted and advised electronically only

Local attorney Marie Alailima says the federal agencies involved in fisheries “continue to ignore” the call from local traditional chiefs, government leaders and residents of American Samoa for meaningful discussions in issues impacting the territory’s resources.

Alailima made the observation in her Oct. 27 comment letter to the National Oceanic and Atmospheric Administration opposing the way NOAA’s National Marine Fishery Service (NMFS) sought public comments, with only one local public hearing held on a proposed regulation for aquaculture program in American Samoa.

She joins Commerce Department director Keniseli Lafaele and Shipyard Service Authority chief executive Moefa’auo Bill Emmesly — both have lodged strong objections in the way NMFS sought public comments and have called for a delay in making any final decision on the NMFS proposal.

In her letter, released yesterday through the federal portal [], the local attorney says “no further action” should be taken on NMFS and Western Pacific Fishery Management Council’s intent to prepare a Programmatic Environmental Impact Statement (PEIS) to analyze the potential environmental impact of a proposed Pacific Islands Region (PIR) aquaculture management program and alternatives.

The PEIS is intended to support offshore aquaculture development, including appropriate management unit species for aquaculture, reasonably foreseeable types of offshore aquaculture operations, and permitting and reporting requirements for persons conducting aquaculture activities in Federal waters.

She cited various reasons, why no action should be taken and included the fact that notice of Sept. 8’s public meeting in American Samoa was made electronically, but such medium of notification, including in the case at hand — the sending of notice by electronic emails to a "select few” — “erroneously presumes notice through email, the federal register online, through announcement of public hearings on NOAA agency websites is a means readily accessible by the majority of the American Samoa population.”

Alailima argues, “It also erroneously presumes that the subject matter or import of such public meetings can be readily understood from such online notice by a population [that] for the most part lacks access to computers and is still transitioning into fully embracing American culture, its language, its federal procedures, legal institutions and concepts.”

Greater responsibility for providing the American Samoa population with meaningful notice and opportunity to comment must be considered by NMFS and other NOAA agencies, inclusive of all further steps involving the present proposed action, she said.

She also said NOAA “has been on notice through prior documented request of 60 chiefs, mayors of villages, including successor chiefs to the deeds of cessions, to provide inhabitants of American Samoa with such added measures of notice and opportunity to comment so that they meaningfully participating in these federal meetings and public hearings, before they are deprived of property interests.”

NOAA, its agencies, subdivisions, including the Council “continue to ignore this request for such added protections,” Alailima said adding that Michael D. Tosatto, Regional Administrator, NMFS Pacific Island Region was personally served a copy of this document signed by the chiefs, advising him to take the 50-mile Large Vessel Protect Area (LVPA) proposal to the villages in coordination with the Office of Samoan Affairs, prior to his deciding to give NMFS final approval of the present new LVPA rule — which is now the subject of a lawsuit at federal court by ASG.

(Alailima represented the chiefs who signed the document on the LVPA proposal. And Samoa News understands that the Council was not involved in setting up the Sept. 8th local meeting on the aquaculture program)

According to Alailima, Tosatto ignored this opportunity to afford local people meaningful due process, which they reasonably requested.

She argued the Sept. 8th public scoping meeting “again continues to impose this reckless and deficient notice and hearing paradigm upon the American Samoan people despite reasonable requests for improved access to information to the nature of federal programs and rules.”

Alailima further noted there is insufficient access to and no presentation of scientific fishery data supporting the Council’s vote of a need to regulate aquaculture in American Samoa waters via amendment of the existing American Samoa Fishery Ecosystem Plan.

“Thus, no meaningful opportunity to comment afforded me or the public at this September 8, 2016 hearing absent such data,” she said.

Another reason for taking no further action on this matter, Alailima said, is that there is no explanation of how the methodology of using data from other regions warrant, justify or support developing an aquaculture management plan for American Samoa waters.

“Nor has there been a presentation to the undersigned and the American Samoa public that a Programmatic Environmental Impact Statement developed by such a methodology is accurate, scientific and relevant to American Samoa waters,” she argued.

Alailima pointed to “NOAA's past, present and ongoing reluctance to work with the American Samoan people, its government and traditional leaders to take additional measures to provide them with notice and opportunity for comment that satisfies procedural due process under federal law and U.S. Constitutional Due Process.”

She reminded NOAA that the Deeds of Cession of Tutuila and Aunuu and Deed of Cession of Manu'a are treaties or international agreements accepted by a Congressional act in 1929 with special guarantees of protection of ceded waters and their marine resources for the American Samoan people.

“At minimum NOAA agencies, including NMFS, should be affording the American Samoa public meaningful notice and opportunity to comment in the manner their leaders and people are requesting rather than continuing to impose a ‘one size fits all’ federal notice and comment procedure,” Alaillima concluded.

It’s unclear as to when NMFS will issue a decision on the aquaculture program. Public comments on the proposed regulation closed on Oct. 31.