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Feds respond in LVPA lawsuit — claiming ASG does not have standing

U.S. Supreme Court building in Washington, D.C.
Territories “may not bring a ‘parens patriae’ suit against the United States”

Pago Pago, AMERICAN SAMOA — Federal attorneys representing the US National Marine Fisheries Service have asked the United States Supreme Court to deny a petition for a “writ of certiorari” by the Territory of American Samoa 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 question presented in this case is, “whether the NMFS reasonably determined that a 2016 [LVPA] rule promulgated under the federal Magnuson-Stevens Fishery Conservation and Management Act, to manage federal fisheries off the coast of American Samoa would not significantly affect any local fishing rights that might be protected by the 1900 and 1904 deeds of cessions from Samoan leaders to the United States,” according to NMFS attorneys in their response filed Wednesday in response to the “writ of certiorari” petition.

As previously reported by Samoa News, the Territory of American Samoa — through ASG and the Governor’s office — sued the 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” — the Deed of Cessions for Tutuila and Aunu’u in 1900 and the 1904 Deed for the Manu’a islands. ASG contends that NMFS failed to consider the Deeds in its final rule for the LVPA, which was established more than 10 years ago to protect the local alia fishing fleet.

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 four-page decision issued last September.

In its petition to the Supreme Court, the Territory argued — among other things — that the “Ninth Circuit’s decision threatens to disrupt the relationship between the United States and one of its longstanding territories — a relationship predicated upon voluntary agreements that had served both sides well for more than a century.” (See Samoa News edition Feb. 24th for details.)

Arguing for the Respondent, NMFS and other federal officials, are US Acting Solicitor General, Elizabeth B Prelogar and attorneys with the US Justice Department. The Respondent referred to the two deeds of cessions as “cessions” throughout its filings.


Petitioner contends the cessions establish binding and enforceable obligations on the United States. But the Respondent argued that the appeal’s court did not address “the validity and enforceability” of the cessions. Instead, the appeal’s court concluded that NMFS had reasonably determined that its 2016 rule altering the boundaries of the LVPA would not have any significant effect on the fishing rights that petitioner asserts the cessions protect.

According to the Respondent, “this case would be a poor vehicle in which to evaluate the reasonableness of the 2016 rule because petitioner lacks standing to challenge that rule. The petition for a writ of certiorari should therefore be denied.”

They pointed out that the petitioner repeatedly contends that the United States has “disavowed” its “obligations under the Deeds of Cession,” or is otherwise “disput[ing]” their “validity,”

“That contention misapprehends the government’s arguments in the lower courts. At least since Congress approved the cessions in 1929, it has been clear that the cessions are federal law,” the Respondent said. They noted that the issue the parties disputed in the court of appeals—and that the court did not resolve—was whether the cessions protected fishing rights in the waters affected by the 2016 rule.

“The government contended that the cessions did not mention fishing or fishing rights, and that, at a minimum, the cessions did not reserve fishing rights in the LVPA because waters more than three miles offshore were considered the high seas at the time the cessions were both signed and approved by Congress,” according to the Respondent.

“Those arguments relate to the contents of the cessions, not their validity,” the Respondent points out.

Nor does the court of appeals’ “decision threaten to disrupt the relationship between the United States and one of its longstanding territories,” as petitioner asserts, according to the Respondent.

They argued that the court of appeals “decision rests on NMFS’s factual conclusion that narrowing the LVPA would not have a significant impact on alia fishing and therefore would not affect any rights even arguably protected by the cessions.”


The Respondent contends that the “fact-specific question actually decided by the court of appeals—whether NMFS reasonably determined that the 2016 rule would not significantly affect alia fishing—does not independently warrant this Court’s review.”

Furthermore, the petitioner does not identify any specific error in the court of appeals’ analysis of the factual record, let alone an error justifying further review. And this Court does not ordinarily “grant... certiorari to review evidence and discuss specific facts,” according to the Respondent, citing a 1925 federal case.

Respondent claims that the Petitioner “suggests in passing” that the court of appeals’ decision was too short to be fairly reasoned.

However, the Respondent noted that the court of appeals communicated the key elements of its analysis: NMFS had considered the “input offered by [petitioner]”; that input and other information suggested that the fortunes of the alia were not linked to the size of the LVPA; and the Western Pacific Regional Management Council (Council) and NMFS continued to seek “to develop and increase alia fishing” in other ways.

“The brevity of the court’s opinion may have reflected its conclusion that petitioner had failed to identify any evidence suggesting that the 2016 rule would in fact have a significant impact on the alia fishing community,” Respondent said.

(Samoa News notes that the Council was among the federal defendants in Territory of American Samoa’s lawsuit.)


NMFS and other federal defendants in arguing their case before the court of appeals contend that the lower court “erred... in holding that ASG has ‘parens patriae’ standing to sue the federal government.”

(The pharase “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.)

The Respondent, in their Supreme Court response, raised this issue again, arguing that “petitioner lacks standing to bring this parens patriae suit.”

To establish Article III standing, the Respondent said, a plaintiff bears the burden of showing that:

•           he has suffered an injury-in-fact, which is “concrete and particularized” and “actual or imminent”;

•           the injury is “fairly traceable to the challenged action of the defendant”; and

•           it [is] ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’

Respondent argued that the Petitioner, as a territory of the United States, “lacks standing to assert the rights of its population in litigation against the federal government.”

Respondent observed that the Supreme Court — in a separate case —  has explained, “it is no part of [a State’s or territory’s] duty or power to enforce [its citizens’] rights in respect of their relations with the Federal Government.”

Respondent contends that “it is particularly clear that a territorial government such as petitioner may not bring a parens patriae suit against the United States.”

 A territorial government “owes its existence” to the United States, and “U.S. territories... are not sovereigns distinct from the United States”, according to the Respondent, citing a previous federal case on Puerto Rico.

“Regardless of whether petitioner may assert a parens patriae theory of standing,” the Respondent argued that “petitioner has failed to make the requisite evidentiary showing of a concrete injury fairly traceable to the 2016 rule.”

Respondent points out that the lower court relied on petitioner’s asserted injury to its “quasi-sovereign interest in protecting the American Samoan[s’] cultural fishing rights to preserve their culture for the benefit of ” American Samoans “as a whole.”

Although the lower court “assessed the importance of fishing to the Samoan culture, it demanded no real evidence that the 2016 rule would in fact cause concrete harm to those cultural fishing rights,” the Respondent argued. “Instead, the court relied on general speculation in the administrative record about the effects of a reduced LVPA on alia fishermen, and ‘other similar evidence’ that it did not identify.”

In conclusion, the Respondent points out that petitioner failed to establish specific facts demonstrating a concrete harm either to its own proprietary interests or to Samoan cultural practices.”

Therefore, “petitioner lacks standing to bring this suit, and further review is not warranted.”