The concern of local leaders that the rule to open fishing grounds for longliners goes against the Deeds of Cession were viewed by federal agencies as nothing more than a “passing annoyance”.
So says attorney Michael Iosua who represents the Territory of American Samoa in its federal lawsuit over the changing of the American Samoa Large Vessel Prohibited Area or LVPA.
The Lolo-Lemanu administration wants the federal court to invalidate the 2016 LVPA rule which allows federally permitted US longline vessels in American Samoa to fish for pelagic species in certain parts that were initially reserved for alia vessels.
The administration sued the National Marine Fisheries Service or NMFS, U.S. Department of Commerce and NOAA, Commerce Secretary Penny Pritzker; Western Regional Pacific Fishery Management Council executive director Kitty Simonds; NMFS assistant administrator Eileen Sobeck; and Michael Tosatto, regional administrator of the NOAA Fisheries Service Pacific Islands Regional Office.
In his motion for summary judgment, Iosua says the court must decide between two competing federal laws.
The first involves the American Samoa Deeds of Cession, a federal law created and designed to protect and perpetuate the customs and traditions of the people of American Samoa.
The second is a fishery management rule, which Iosua says directly violates the protections of the American Samoa Deeds of Cession.
Before the rule was finalized, local leaders including Governor Lolo, Director of Marine and Wildlife Resources Dr Ruth Matagi Tofiga, and descendants and current titleholders of treaty chiefs requested federal agencies to take into account the Deeds of Cession in their decision.
The treaty chiefs sent a resolution to the federal agencies expressing their concerns about changing the LVPA.
Iosua contends that throughout the documents implementing the final rule, there is no indication that the federal agencies even considered the pleas from local leaders.
He cited for example a decision memo written by NOAA official Michael Tosatto to NMFS official Eileen Sobeck whereby Tosatto certified that the new rule is consistent with federal law.
In a separate email, Iosua says the defendants addressed the resolution from treaty chiefs by instructing the department that “no response is needed”.
He said defendants also stated that should people insist on receiving a response, they should be given the canned answer that NMFS will consider this information appropriately.
Iosua said Tosatto continued with several other dismissive statements including, “They have 3 miles in most areas and the rest is EEZ. They may have spent a lot of time on something that is not an actual issue (at least for us).”
In a follow up email in the same chain, Iosua says Tosatto writes “some American Samoans think they own their EEZ.”
Iosua says clearly, the involved federal agencies “thought nothing more of the comments than a passing annoyance that should be summarily dismissed rather than properly considered.”
Yet despite the canned answer, Iosua says the defendants later claimed that NMFS took particular care to ensure that the views of American Samoa stakeholders including fishermen and fishing communities were solicited and taken into account.
According to the plaintiff’s attorney, by significantly decreasing the fishing area exclusively reserved for alia fishermen, the United States has severely diminished the ability of American Samoans to engage in this integral cultural practice.
He says alia fishermen lack the financial resources to purchase the requirement equipment to compete with commercial longliners. As a result, they will be pushed out of practice completely.
Iosua wrote, “It is hard to imagine the United States would allow the decline of one of its own cultural practices for the economic benefit of a select few.”
The attorney asks the federal court to order that the 2016 LVPA Rule violates federal law and should be nullified.
The defendants have until September 23 to file a response to the motion and file their own summary judgment motion in the case.
