The 2017 ruling by the Hawaii Federal District Court in favor of American Samoa over the Large Vessel Prohibited Area (LVPA) rule, has been reversed by the 9th Circuit Court of Appeals.
American Samoa had sued the National Marine Fisheries Service, NOAA, the Western Pacific Regional Fishery Management Council (WesPac) and other parties over a WesPac rule which would have allowed locally owned longline vessels larger than 50 feet in length to fish in waters closer to shore, which were previously restricted for local alia only.
The Honolulu Federal District Court agreed with American Samoa that NOAA failed to consider the Deeds of Cession between Tutuila, Manu’a and the United States in arriving at its decision.
It said 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 Magnuson Stevens Act.
Based on that ruling the LVPA rule which would have allowed long liners to fish within 12 miles from shore instead of 50 miles was put on hold.
The defendants appealed the ruling to the Ninth Circuit Court of Appeals. Oral arguments were heard in February and a ruling on the appeal was released today.
The appeals court reversed the decision by the Honolulu Federal District Court.
It said the appeal raises a “question of whether the government of American Samoa representing an unorganized American territory, can sue federal agencies under the doctrine of parens patriae (that is to act as guardian for those who are unable to care for themselves) on the basis of language of early 20th century cessions and the status of the waters at issue as high seas.”
“Because parens patriae is a prudential doctrine and not a jurisdictional limitation, the court didn’t feel it needs to reach this issue and instead proceed to the merits.”
The Appeals Court said its review of the National Marine Fisheries Service compliance with the the Magnuson Stevens Fishery Conservation and Management Act is dictated by the Administrative Procedure Act and “we will set aside the regulation if it is arbitrary. capricious, and an abuse of discretion or otherwise not in accordance with the law.”
But the court said it didn’t find the LVPA rule to be such.
“Here, National Marine Fisheries Service 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.
“It is of little import that NMFS did not specially cite the cessions when detailing the other applicable laws, it consulted, as NMFS considered the consequences of the rule on alia fishing boats, and rationally determined the effects were not significant,” said the appeals court.
It cites the Pacific Island Pelagic Fisheries that since 2006 fewer than 3 alia have been operating on a regular basis and of these only one was active in 2013 and 2014.
The court said the Western Pacific Regional Fishery Management Council and ASG are developing strategies to develop and increase alia fishing, however, and NMFS will annually review the effects of the rule, providing ASG the opportunity for further input and challenges.
“When as here, the agency has considered the relevant factors and articulated a rational connection between the facts found and the choice made, the decision is not arbitrary or capricious.“
The Appeals Court thus reversed the 2017 decision on the LVPA rule.
