American Samoa has won its lawsuit against the National Marine Fisheries Service over the Large Vessel Prohibited Area rule change.
Hawaii Federal District Court Judge, Judge Leslie E. Kobayashi issued her ruling in the Territory of American Samoa’s case against NOAA ruling in favor of the Territory and vacating and setting aside NOAA rule 81 Fed. Reg. 5619 (Feb. 3, 2016) which shrunk the Large Vessel Prohibited Area (LVPA) from 50 to 12 miles.
This allowed long-line vessels larger than 50 feet in length to fish closer to the islands.
The Court reached this decision after concluding that NOAA failed to consider the Deeds of Cession.
Specifically the Court ruled that, “the Deeds of Cession require the United States to preserve American Samoan cultural fishing practices and that the deeds constitute “any other applicable law” for purposes of the [Magnusson Stevens Act].”
According to the Court, “American Samoans are an island people and, . . . their history of fishing practices goes back thousands of years, i.e. their fishing customs were well established at the time of cession.As such, the Court concluded that “the American Samoans’ right to use their “property” to continue their customary fishing practices is reserved by implication in the Deeds of Cession.”
Reacting to the ruling Governor Lolo Moliga stated, “Our Deeds are sacred documents to our people. They establish the foundation of our relationship with the United States.
“There is no question that the Deeds afford our people rights.
“Our ancestors had enough foreknowledge and wisdom to place safeguards in these special documents to protect our way of life.
“Our position has always been that these documents must be consulted when federal agencies wish to impose federal laws on our Territory.
“In this case, NOAA failed to even consider the Deeds despite numerous communications for them to do so. I hope this case serves as a reminder to the federal government that we have rights and they should not be so easily dismissed.”
Leading up to the creation of the Rule, NOAA received hundreds of comments from individuals who were both for and against the rule.
Many commenters cited to the Deeds and cultural fishing rights as a basis for invalidating the rule.
Despite these concerns NOAA issued its final rule shrinking the LVPA on January 29, 2016. Shortly after, on March 4, 2016,the American Samoa Attorney General’s office filed a complaint against NOAA, NMFS, and the Department of Commerce claiming that the now vacated rule was inconsistent with the rights found in the Deeds of Cession and that it interfered with cultural fishing practices.
Both the Territory and NOAA filed Motions for Summary Judgment and oral arguments were held on February 13, 2017 in a Hawaii Federal District Court.
Attorney General Talauega Eleasalo V. Ale, who argued the case for the territory, stated, “Judge Kobayashi has issued a thorough and well- reasoned decision which, for the first time in our history, breathes life into the words of the Deeds of Cession, specifically as it pertains to our Territory’s direct dealings with the federal government.
“This decision should help solidify our rights in relation to the federal government.”
