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Lolo: LVPA case will go to the “highest court in the land” if need be

American Samoa members at yesterday’s opening of the 171th Meeting of the Western Pacific Regional Fishery Management Council. [l-r] Marine and Wildlife director Va’amua Henry Sesepasara, StarKist Samoa official Toatasi Archie Soliai and Christinna Lutu-Sanchez of Longline Services Inc. Va’amua, Taotasi and Lutu-Sanchez are American Samoa members on the Council. [photo: FS]

Gov. Lolo Matalasi Moliga says he plans to take the Territory of American Samoa’s case — re fishing rights in the Large Vessel Prohibited Area (LVP A) — all the way to the “highest court in the land” referring to the US Supreme Court.

Lolo mentioned the LVP A case as part of his remarks at yesterday’s opening of the 171st Western Pacific Regional Fishery Management Council meeting held at the Gov. H. Rex Lee Auditorium. LVP A is one of the issues on the Council’ s three-day agenda.

This past Monday, the US National Marine Fisheries Service appealed a Honolulu federal court decision that invalidates the 2016 rule, which reduced from 50 to 12 miles, the LVP A in American Samoa waters. The appeal is filed in the US Ninth Circuit Court of Appeals.

US District Court Judge Leslie Kobayashi reaffirmed in August this year, her March 2017 decision which concluded that the 2016 LVPA rule was invalid.

Plaintiff in the case is the Territory of American Samoa, through ASG. Among the defendants in the case are NMFS, and senior officials with the US Department of Commerce.

Department of Marine and Wildlife Resources director Va’amua Henry Sesepasara read the governor’ s prepared remarks. Va’amua said the governor showed up yesterday at 1p.m., the scheduled time for the opening ceremony, but it didn’ t start until around 2p.m.

The governor, in his prepared remarks, stated that he wanted to “dispel the myth surrounding” ASG pursuing legal action in the LVPA. He said that after the court ruled in favor of American Samoa, the ASG Fisheries Task Force was instructed to reach out to include, as members of the task force, owners of large vessels to facilitate the development of policy guidelines to regulate fishing within the 50-mile zone by large vessels.

“Since an appeal has been led, the development of these policies will be suspended until the court renders a ruling, which only prolongs the prohibition on fishing by large vessels in the 50-mile zone,” he said.

“Notice is also hereby served that the Territory of American Samoa will take this issue to the highest court in the land should the appeal be upheld and the direct consequence of which is to further prolong fishing prohibition in the LVPA.”

According to Lolo, the development of policy guidelines was to achieve the special interest of the people of American Samoa, which includes conservation and preservation of the fishing grounds for subsistence fishing and to ensure that large vessels fishing within the LVPA sell their fish to StarKist and potential new canneries in the future.

Meanwhile, the appellate court has given defendants up until Jan. 22, 2018 to file its opening brief and the plaintiff’s reply 30-days later, according to electronic court records, which state that the appellate court has also offered its mediation program for both parties in order to resolve the case.

The appellate court has sent out a “mediation questionnaire” with responses due by Oct. 23, 2017.

An ASG official told Samoa News that the territorial government “will continue to vigorously defend its position relative to maintaining its authority and sovereignty over the 50-mile zone for direct derivation of benefits accruing to the people of American Samoa.”

“The Court recognized the legitimacy of our Deeds of Cession therein contained the commitment by the United States Government to protect and preserve the resources of the Territory of American Samoa,” according to the senior official, who is familiar with the LVPA case.

The 2016 LVPA rule was based on a recommendation in 2015 by the Council to help the struggling US longline fleet based in American Samoa.

According to Kobayashi’s ruling, NMFS failed to consider whether the proposed rule was consistent with the Deeds of Cession — referring to the 1900 Deed of Cession for Tutuila and Aunu’u; and the 1904 Deed of Cession for Manu’a.

However, the defendants argued that the Deeds do not expressly refer to cultural fishing practices or fishing resources.

The Council has made the same observation, and noted that the court’s decision also does not define what “cultural fishing practices” are, or what is required to protect or preserve them.