Am Samoa must file response to NMFS request for reconsideration by May 25

The federal court in Honolulu has given the Territory of American Samoa later next week to file a response to federal defendants motion early this month requesting the court to reconsider or remand back to the US National Marine Fisheries Service (NMFS) its decision invaliding the reduction of the large vessel prohibited area in territorial waters.

Federal defendants include NMFS and the US Commerce Department, whose senior officials are also named in the Territory of American Samoa’s lawsuit filed in March last year. The plaintiff, through the ASG, focused its argument in overturning the 2016 LVPA rule on the Deeds of Cession, which it alleged were not taken into consideration when the final rule was implemented. The federal court agreed and invalidated the rule.

Federal defendants, represented by the US Justice Department, filed early this month its motion for reconsideration and or remand the 2016 LVPA Rule back to NMFS, instead of vacating the rule, which the defendants argue benefited the US longline fishing fleet based in American Samoa.

Late last week, the Honolulu federal court clerk released a notice saying that the federal defendants’ motion will be considered by US District Court Judge Leslie E. Kobayshi “as a non hearing motion” and that memorandum in opposition or response from plaintiff is due May 25th, with a reply from federal defendants reply due Jun. 8.

Additionally, the motion for reconsideration will be taken under submission thereafter and the court will issue an order at a later time.

Kobayshi is the same judge who heard arguments in the plaintiff’s complaint and also issued the ruling in favor of ASG.

Among the federal defendants arguments in its motion for reconsideration is that the plaintiff failed to show that the 2016 LVPA Rule “actually threatened its alleged interest”. The defendants says that the plaintiff had alleged that the 2016 LVPA Rule will have a “chilling effect on alia fishermen participation” and therefore harm American Samoan culture.

“Critically, however, plaintiff put forth no evidence of specific facts supporting this allegation, or otherwise showing that application of the Rule will adversely harm the alia fleet or plaintiff’s culture,” the defendants argued.

“In fact, plaintiff offered no declarations, data, or affidavits of any such harm. Instead, it relied solely on generalized speculation as to the effects of the Rule,” the defendants further argued.

It also noted that the court quoted the American Samoa Governor’s unsubstantiated comment that longliners “present a real risk of entanglement” with alia fishing equipment, “could easily deplete the stock,” and would “likely discourage” local fishermen from “practicing traditional fishing methods for fear of being run over by the larger long liners.”

The court also quoted a joint resolution opining that the rule would “surely undermine the treatied peoples’ property interests in the marine waters” and create “unbalanced competition that will further threaten the collapse of the traditional alia fishing community,” according to the defendants.

According to federal defendants, these allegations of “unbalanced competition” and “fear of being run over” in hundreds of square miles of open ocean are speculative and insufficient to demonstrate standing.

“Speculation is insufficient to establish a threat of ‘actual and imminent’ harm to Plaintiff’s alleged concrete interest with specific facts,” according to the federal defendants, who then pointed out that, plaintiff did not address why not even one individual American Samoan claiming cultural fishing rights under the Deeds joined plaintiff’s suit as a plaintiff.

On the other hand, federal defendants say plaintiff did recognized that “the size of the [alia] fleet has fluctuated over time” and that “individuals do not enter the alia fishery or leave the fishery for many different reasons” including but not limited to “cost, resources, and fish stock supply.”

Federal defendants also emphasized that the longline fishing fleet targets only albacore tuna, which is sold to StarKist Samoa cannery. Additionally, longline owners are American Samoans.