Suit Argues for Protections Promised in Deeds of Cession


The territory of American Samoa’s suit against federal agencies and officials over the Large Vessel Prohibited Area rule change claims four causes of action.

Firstly that the amendment to the LVPA rule violates the promises and protections of the Deeds of Cession for Tutuila and Manu’a and certain required provisions of the Magnuson Stevens Act.

Specifically, says the complaint, the MSA mandates that any fishery management plan…shall contain the conservation and management measure applicable to foreign fishing and fishing by vessels of the United States which are …consistent with all other applicable law.

The plaintiff says the Deeds of Cession are applicable law providing promises and guarantees that create the relationship between the US Government and the people of American Samoa.

The Deeds promise protection of the properties of the people of American Samoa within the ceded area, which includes the land and surrounding water.

The new rule, says the plaintiff, shrinks the LVPA and allows large longliner vessels to fish within the ceded area “which effectively eliminates alia and cultural fishing practices.”

The suit’s seond cause of action is breach of fiduciary duty and the Administrative Procedure Act.

It claims that under the Deeds of Cession, the US promised to protect and respect the rights, lands, customs and waters of the ceded area for beneficiaries of the Deeds. However the LVPA amendment breaches this duty by failing to protect the traditional alia fishing customs of the local people.

The plaintiff claims as its third cause of action violation of the Magnuson Steven Act and Administrative Procedure Act.

American Samoa argues that under the MSA, the Secretary of Commerce must review any rule or measure it for consistency with applicable law.

However, the NMFS never thoroughly reviewed the rule against the Deeds of Cession and this is a violation of federal law.

The complaint also contends that the failure of the Western Pacific Fishery Management Council, which recommended the rule change, to provide relevant training on the Deeds of Cession is arbitrary, capricious and an abuse of discretion.

Finally the suit alleges that the LVPA rule change is a violation of the Administrative Procedure Act.
It states that the NMFS’ reasons for making the rule change is that there’s only one alia operating in the fishery and that the potential gear conflict and catch conflict is no longer an issue.

According to the plaintiff this is contrary to the evidence that was provided to NMFS which shows an estimated 30 boats still operate in the fishery and potential gear conflict remains a present risk.

And because the NMFS rational for its decision on the LVPA is contrary to evidence that was available to them, their action is arbitrary and capricious.

The suit asks the US federal district court of Hawaii to order that the final LVP rule of February 2016 be vacated and set aside.

The rule allows locally owned longliners of 50 ft. to fish within12 miles from shore, an area previously reserved for the alia fleet.

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