Local gov’t contends feds in LVPA lawsuit fail to see importance of Deeds of Cession
The Territory of American Samoa, through the Governor’s Office, contends that the federal defendants in the Large Vessel Protected Area lawsuit have failed to see the importance of the two Deeds of Cession “because it is not their culture that is being threatened.”
American Samoa’s latest argument is outlined in new court documents filed last Thursday at the federal court in Honolulu in its lawsuit against several federal defendants, including the US Department of Commerce, and its entities including the US National Marine Fishery Service, which approved in February this year the reduction of the LVPA in waters of American Samoa from 50 to 12 miles.
American Samoa has argued, among other things, that NMFS failed to take into account the US promise to protect local resources, as cited in the Tutuila and Aunu’u Deed of Cession in 1900 and the Manu’a Islands Deed of Cession in 1904. Based on court filings, most of ASG arguments against reduction of the LVPA center around the two Deeds of Cession.
“Plaintiff has a concrete interest and duty to protect its laws and the welfare of its people. In this case, Plaintiff fights to protect, the Fa’aSamoa, the way of its people,” says ASG in its court filings last Thursday.
“Defendants share this duty of protection, but they choose to minimize their responsibilities in order to perpetuate their own federal agenda,” ASG says. “In doing so, Defendants’ defiantly bolstered a 40- year federal act at the expense of a millennia old culture.”
“Defendants fail to see the import of the deeds because it is not their culture that is being threatened. At the very least, defendants should have given proper consideration to the deeds, however the record shows none,” ASG argues.
“This case is ripe for judicial intervention,” ASG points out and notes that defendants “will continue to find the rights found in the deeds ‘repugnant’, until a court interprets our deeds and orders their cooperation.”
ASG, represented by Honolulu-based law firm of Imanaka Asato, went on to point out that the court has subject matter jurisdiction to review plaintiff’s claims. Additionally, plaintiff has standing to protect and enforce its laws.
ASG argues that it has established that the deeds are more than a mere “congressional policy to preserve and respect ‘Samoan traditions concerning land ownership’.”
The plaintiffs maintain that the deeds are federal law that protect American Samoan property rights and customary practice, while the 2016 LVPA rule, “is in direct conflict with these protected customary practices and is misaligned” with the federal Magnuson-Stevens Act requirement that any new regulation must be consistent with other “applicable law.”
“The Samoan people have practiced alia fishing for many years and as an integral part of the Samoan way of life,” ASG points out. “These customs include not just alia fishing but also the customary practices intimately tied to the distribution and sharing of fish obtained from alia fishing.”
According to the plaintiff, the language of the deeds requires that NMFS consider Samoan customary practices and disapprove a regulation inconsistent with the perpetuation and protection of these customary practices as provided by the deeds.
ASG says the defendants had argued that the deeds are not “applicable law” citing NMFS’ Operational Guidelines list of “other applicable law” considered by NMFS in the decision-making process.
The Operational Guidelines do not list the deeds as “other applicable law”; however, this list is not exhaustive and contains only those federal statuses and executive orders that are frequently raised during a regulation challenge, said ASG.
Additionally, Operational Guidelines only suggest other frequent referenced laws that NMFS should consider, but does not prevent NMFS from considering any other federal law that is applicable to a proposed regulation.
“Here, the Deeds of Cession is a federal law that imposes substantive requirements upon the NMFS decision process,” ASG argues. “The substantive requirement of the Deeds is the promise of the United States Government to protect customary practices of the people of American Samoa. In this case, alia fishing and other customary practices that are adversely affected by the reduction of the LVPA.”
ASG argues that defendants in this matter “have utterly failed to comply with their duty” under the federal Administrative Procedures Act (APA).
Additionally, defendants failed to consider the deeds and other applicable laws as required by the act and failed to consider other important aspects of the law including their fiduciary duty to protect American Samoan fishing rights. As a result, defendants have passed a regulation that unlawfully infringes upon the cultural rights of American Samoans.
“Equally important, American Samoa, has the legal standing to challenge federal agency decisions that interfere with its duty to protect the cultural practices its citizens as it requires by the American Samoa Constitution,” ASG argues.
Accordingly, the court must grant plaintiff’s motion for summary judgment, deny Defendants’ motion, and enjoin defendants from implementing the 2016 LVPA until all applicable laws and the requirements of the APA are fulfilled.