Supreme Court petitioned to address American Samoa’s LVPA lawsuit
Pago Pago, AMERICAN SAMOA — The Territory of American Samoa — through ASG and the Governor’s Office — has petitioned the Supreme Court of the United States 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 petition for a writ of certiorari was filed Monday on behalf of the Territory by the Washington D.C. law firm, Kirkland & Ellis LLP, which is also currently representing ASG in the US citizenship case pending at a federal appeal’s court.
As previously reported by Samoa News, the Territory of American Samoa — through the Governor’s Office and ASG — sued the US National Marine Fisheries Service (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 Cession 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.
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-panel of judges reversed the lower court’s decision in a four-page decision issued last September.
In a passionate plea during oral arguments in February 2020, before a federal appeals court, then-Attorney General Talauega Eleasalo Va’alele Ale contended that the Deeds of Cession “covers more than just ‘alia fishing. It covers and protects culture. The culture of the American Samoa people.”
Samoa News points out that the U.S. longline fleet based in American Samoa supports the NMFS.
PETITION FOR REVIEW
“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,” American Samoa said in written arguments in it’s 119-page petition to the Supreme Court.
Furthermore, the “decision leaves standing an administrative action that, much worse than determining the Deeds of Cession should not apply, treated them as if they do not exist.”
“American Samoa seeks the [Supreme] Court’s intervention to affirm its rights under the Deeds of Cession,” the petition said, and noted that this “case raises a basic question about the United States’ responsibility to keep its promises to its territories.”
It notes that the US acquired American Samoa pursuant to Deeds of Cession offered by Samoan chiefs. And the Deeds of Cession transferred sovereignty to the United States while protecting the customary rights and property of the people of American Samoa.
“For more than 120 years, the people of American Samoa and the United States have recognized the Deeds of Cession to require special consideration for the preservation of fa’a Samoa, the traditional Samoan way of life,” the petition points out.
And since it first became a part of the United States in 1900, “American Samoa has understood the Deeds of Cession to provide the basic legal foundation for the relationship between the territory and the federal government.”
The petition details information on American Samoa, the reasons for NMFS creating the LVPA rule in 2002 and the move to reduce it to help the American Samoa based US longline fleet as well as the swift opposition by territorial leaders, including then-Gov. Lolo Matalasi Moliga.
It also provides a summary of the Honolulu federal court decision and the Appeal’s court ruling — both of which have been covered extensively by Samoa News.
In arguing for the Supreme Court to review this case, the petition points out — among other things that — the Ninth Circuit Court did not address the objections raised by officials of American Samoa concerning the legal effect of the Deeds of Cession, the potential impact of the revised regulation on Samoan culture, or the NMFS’s abandonment of a standard that accounted for these legal and cultural considerations.
Instead, the Ninth Circuit court opined that “NMFS considered the input offered by ASG regarding the rule’s impact on fishing communities, the probable effects of increased large vessel longline fishing, and the availability of fish.”
According to the Ninth Circuit, it was “of little import that NMFS did not specifically cite the cessions when detailing the ‘other applicable laws’ it consulted” because the agency had determined the impact on the number of local fishing boats was insignificant.
American Samoa believes that the Ninth Circuit “sanctioned the NMFS’s decision to ignore the Deeds of Cession, or any effect on Samoan culture, as independent factors for consideration.”
“Beyond being merely incorrect, the Ninth Circuit’s decision was also out of line with this Court’s recognition that the United States is obligated to keep its promises to its indigenous inhabitants,” according to the petition.
American Samoa went on to further argue that the Ninth Circuit’s decision is wrong as a matter of statutory interpretation, wrong as a matter of administrative law, and wrong as a matter of process.
It claims that the Ninth Circuit erred in allowing the NMFS to ignore the Deeds of Cession and that the NMFS should have recognized that the Deeds of Cession are part of federal law.
In conclusion, American Samoa asked the Supreme Court to “correct an error with the potential to upend the longstanding relationship between the United States and one of its insular territories.”
“The record in this case, including the well-reasoned opinion of the [Honolulu federal] court, demonstrates that the NMFS brushed aside its responsibility to consider the promises made by the United States in accepting sovereignty over American Samoa,” the petition said. “The Territory of American Samoa respectfully submits that the Court should grant review and address this error.”
Noteworthy in the petition — as it may be one of the first times Samoan proverbs have appeared alongside legal arguments in a brief to the Supreme Court.
The two Samoan proverbs in the petition are both related to the sea and fishing. One of them states — “O le upega e fili i le po, ae tatala i le ao” — meaning — according to the petition’s translation — “The net that became entangled in the night will be disentangled in the morning”.
Michael F. Williams, one of the attorneys with the law firm representing American Samoa said yesterday via email from D.C. that American Samoa had reached out to them to file the petition in this case.
And they worked alongside Talauega, the territory’s Attorney General, and Samoan counsel in drafting and filing the petition. The Kirkland & Ellis team includes their only Samoan lawyer, Don Hong, a stellar litigation associate who was born and raised in American Samoa.