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LVPA defendants respond to argument about Deeds of Cession

Says “paramountcy doctrine” points to US sovereignty on such issues

Defendants in the Large Vessel Protect Area (LVPA) lawsuit have countered claims by plaintiff the Territory of American Samoa — that changes to the LVPA made this year are inconsistent with the Deeds of Cession (1900 Deed for Tutuila and Aunu’u and 1904 Deed for Manu’a), which is applicable law.

The lawsuit, filed in March this year by the Territory of American Samoa (through the governor’s office), asked the federal court in Honolulu to overturn a ruling made Feb. 3 by the US National Marine Fisheries Service (NMFS) that reduces the LVPA, which is reserved for the local alia fleet, from 50 miles to 12 miles.

Among the defendants in the ASG lawsuit are NMFS along with NMFS official Michael D. Tosatto, the U.S. Department of Commerce, including Commerce Secretary Penny Pritzke and Council executive director Kitty Simonds.

One of American Samoa’s major arguments in its lawsuit is the two Deeds of Cession, which the plaintiff says a federal law created and designed to protect and perpetuate the customs and traditions of the people of American Samoa. Plaintiff explained that among Samoan customs protected by the Deeds are the fishing practices of American Samoans, who have “a long history of dependence on pelagic fishery resources.”

American Samoa had sought summary judgment for itself and against the defendants, who yesterday filed a response.

The defendants addressed the Deeds argument, responding that the Cession of Tutuila and Aunu‘u “is not an agreement, but rather an instrument” that ceded property and relinquished rights to the United States. Additionally, Cession of Tutuila and Aunu‘u and the Cession of Manu‘a Islands represent the formal cession of American Samoa to the United States.

Defendants point out that the plaintiff’s complaint includes exhibits that purport to be copies of the Deeds but they are not authenticated by a declaration.  (Yesterday, defendants filed a separate motion of “Judicial notice” that the court take notice of the American Samoa Bar Association website where the alleged text of the Deeds appears.)

The court has set for Jan. 9, 2017 s a date for a hearing on this matter.

According to the defendants, plaintiff’s interpretation that the Deeds are “other applicable law” under the Magnuson Act, “are without merit” for two reasons.

First, the Deeds’ broad language does not apply to fishing or any territory interest in offshore marine resources subject to exclusive federal management, and therefore the Deeds do not impose requirements on NMFS’s development of the LVPA rules and do not constitute “other applicable law”, according to the defendants.

Second, to the extent that the Deeds require NMFS to respect, protect, or recognize American Samoan traditions, the defendants say NMFS’s administrative record shows that NMFS carefully considered all relevant information and articulated a satisfactory and rational explanation for the 2016 LVPA rule and thus clearly satisfied any requirement allegedly imposed by the Deeds.

“Plaintiff has put forth no evidence that the rule is arbitrary, capricious, an abuse of discretion, or otherwise unlawful, and thus has failed to satisfy its burden to show that the 2016 LVPA rule violates the Administrative Procedure Act (APA),” it says.

The defendants went on to explained the two Deeds, saying that the one for Tutuila and Aunu‘u provides that, in exchange for the formal cession of land and property, the United States will “respect and protect the individual rights of all people dwelling in Tutuila to their lands and other property in said District.”

It further provides that if the United States “shall require any land or any other thing for Government uses, [it] may take the same upon payment of fair consideration for the land or other thing, to those who may be deprived of their property on account of the desire of the Government.”

The Cession of Manu‘a Islands provides that the “the rights of Chiefs in each village and of all people concerning their property according to their customs shall be recognized,” it says, adding that a federal court in Washington D.C. has held that the Deeds represent a “legitimate congressional policy” to preserve and respect “Samoan traditions concerning land ownership.”

The defendants went on to point to the “paramountcy doctrine”, which is derived from “Supreme Court cases in which the federal government and various coastal states disputed ownership and control of the territorial sea and the adjacent portions of the [Outer Continental Shelf].”

Basically the doctrine establishes that the federal government has “paramount rights in and power over” the nation’s “marginal sea” and resources therein stemming from its “jurisdiction over foreign commerce, foreign affairs, and national defense.”

The paramountcy doctrine therefore provides that, upon entry to the United States, states and territories lose their “dominium (ownership) and imperium (governmental powers and sovereignty) over [their] marginal sea[s]” because the United States, as “the sovereign governing entity,” has an obligation “to conduct international affairs and control matters of national concern.” The defendants cited the 2005 case in Northern Mariana v. United Sates.

“Absent express indication to the contrary,” the ownership of seaward submerged lands accompanies United States sovereignty,” it says.

Defendants also cited in its response, the Territorial Submerged Lands Act, in which the United States held absolute title and authority over all submerged lands seaward of the shoreline of American Samoa until 1974 when Congress passed the Territorial Submerged Lands Act (TSLA).

The TSLA conveyed title and management authority to certain territories of the United States, including American Samoa, over the submerged lands and natural resources within three geographical miles seaward of their coasts, according to the defendants.

“The United States retains sovereignty over the seabed and natural resources beyond American Samoa’s seaward limit,” it says. (Samoa News will report in future editions, the rest of the defendants’ arguments.)