Nat’l Marine Fisheries moves to implement large vessel fishing in territorial waters
Pago Pago, AMERICAN SAMOA — The US National Marine Fisheries Service is moving to implement a regulatory exemption that allows certain U.S. longline vessels, 50 feet and larger (large longline vessels) to fish in portions of the American Samoa’s Large Vessel Prohibited Area (LVPA) in territorial waters.
“The intent is to comply with a U.S. Ninth Circuit Court of Appeals decision and Order that reversed a district court ruling that had vacated and set aside the exemption,” according to the NMFS notice published yesterday on the federal portal www.regulations.gov along with supporting documents including the Ninth Circuit’s ruling.
As previously reported by Samoa News, the Territory of American Samoa — through ASG and the Governor’s Office — sued NMFS and other federal officials over a 2016 rule in which NMFS reduced the LVPA 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 of Cession.”
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 whose three-judge panel reversed the lower court’s decision in a ruling.
Meanwhile the Supreme Court denied American Samoa’s petition for a “writ of certiorari” to review a federal appeal’s court ruling, on June 21st and provided no other information. ASG has not made any public comments or statement on the decision by the Supreme Court.
In its notice, NMFS explained that pursuant to the 9th Circuit Court mandate on Nov 17, 2020, this final rule reinstates the LVPA exemptions established in the 2016 final rule.
According to NMFS, this rule allows U.S. large longline vessels that hold a Federal American Samoa longline limited entry permit to fish within the LVPA to approximately 12-17 nautical miles from the shoreline around Swains Island, Tutuila, and the Manu’a Islands.
“All other provisions applicable to the fishery remain unchanged,” said NMFS, noting that the Assistant Administrator for Fisheries has determined that this final rule is consistent with the Ninth Circuit Order, the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific, and other applicable law.
Additionally, the Assistant Administrator for Fisheries finds good cause to waive notice and public comment on this action because it would be unnecessary and contrary to the public interest.
Furthermore, this action reinstates an exemption that was implemented by prior rulemaking, including the opportunity for notice and comment, and that was set aside by a district court decision, which was reversed by the 9th Circuit Court.
NMFS said it does not have discretion to take other action, as there is no alternative to complying with the requirements of the Ninth Circuit Order.
Furthermore, the Assistant Administrator for Fisheries finds good cause to waive the 30-day delayed effectiveness period, finding that such delay would be contrary to the public interest because the measures contained in this rule are necessary to ensure that the fishery is conducted in compliance with the Ninth Circuit Order.
The local longliner vessel owners benefit from this latest court ruling — allowing fishing closer to home, thereby saving fuel and other supply costs, as well as allowing for a faster turnaround. Owners have pointed out that they are American Samoans and the longliner fleet is “local” and supplies not only the cannery with its catch but also the local market.
At its height, local longliner vessels numbered around 70 in 2002, however a more recent count places the fleet at only around 16 vessels.
The NMFS continues to help the local fleet be a viable economic market by funding projects such as ice makers for Manu’a, fish market venue in the Fagatogo Market, and a new dedicated dock space (for longliners only).