NMFS says ASG is yet to establish that it is representing ALL American Samoans

Pago Pago, AMERICAN SAMOA — The US National Marine Fisheries Service has reiterated its argument that, among other things, the Territory of American Samoa — through ASG — lacks standing to bring a lawsuit against the federal government, and requested a federal appeals court to reverse a ruling by the Honolulu federal court.

In its initial appeal opening brief in February this year, NMFS argued that the lower court “erred... in holding that ASG has ‘parens patriae’ standing to sue the federal government.”

NMFS’ appeal to the US Ninth Circuit Court of Appeals stems from the lower court’s decision last year, in which a federal judge sided with plaintiff ASG, citing the Deeds of Cession (1900 for Tutuila and Aunu’u; and 1904 for Manu’a) invalidating the federal agency’s final rule in 2016 that reduced the LVPA, which was put in place more than 10 years ago to protect the local 'alia fleet.

Besides NMFS, other federal defendants included the US Commerce Department and its top officials.

In its filing last Friday, federal defendants argued that ASG “lacks standing” to claim that the rule issued by NMFS in 2016 reducing the size of the LVPA must be set aside because it violates the 1900 and 1904 cessions.

“Just like the 50 states, ASG may not use ‘parens patriae’ standing to sue the federal government,” said the defendants, noting that ASG had argued that the US Supreme Court reversed course on this principle in Massachusetts v. EPA federal court case, “but it did not, as the [Washington] D.C. Circuit has recently held.”

Even assuming that “parens patriae” standing is available to ASG, ASG has not met its burden for invoking it because there exists here “a small group of citizens who are likely to challenge the [government action] directly”, said NMFS, quoting a federal court decision in another federal court ruling in 1981.

According to the defendants, ASG must assert a quasi-sovereign interest “apart from the interests of particular private parties.”

“ASG cannot do so because local small-vessel ‘alia fishermen whose livelihoods are allegedly at stake could challenge the LVPA Rule and make the same cessions-based arguments that ASG is attempting to make here,” NMFS points out. “ASG asserts that ‘alia fishermen could not make the same arguments, but ASG does not explain why.”

Defendants argued that ‘alia fisherman could have asked the court to set aside the LVPA Rule for the same reasons that ASG asserts. Moreover, those fishermen could establish standing by demonstrating that the LVPA Rule harms their economic and cultural fishing interests.

ASG had argued in its opening brief that it has a separate interest in protecting Samoan culture, Samoan cultural rights, and the fa’a Samoa. However, NMFS argues that the ‘alia fishermen have “the most direct interest here as well.”

And while “ASG claims that the ‘alia fishermen’s interests are ‘economic,’ the people participating in the very cultural activity at issue also have a direct interest in protecting that activity, both for cultural and economic reasons,” said NMFS, referring to American Samoa based US longline fleet, which sought additional nearby fishing grounds, resulting in NMFS reducing the LVPA.

“The longliners who benefit from the LVPA Rule are also American Samoans,” said NMFS. “ASG’s [opening] brief simply ignores them and their economic and cultural interest. ASG has not demonstrated how it is protecting either the economic or cultural interests of all of its people.”

(Samoa News notes that locally based US longline fleet have long argued publicly that they are also American Samoans, and the fleet contributes to the territory’s economy.)

“Because ASG has not established that it is representing all American Samoans in this case, its claim of parens patriae standing fails,” NMFS argues. “The LVPA benefits the American Samoans who make up the longline fleet, and ASG consequently may not use parens patriae standing.”

A footnote in NMFS’ response notes that ASG also asserts — in its opening brief — that NMFS’s parens patriae argument “attacks the very existence of the American Samoa Government.”

“It does not,” was the response from NMFS, which explained that the 50 states exist without the ability to sue the federal government using parens patriae standing. Additionally, it appears that ASG has never attempted to sue the federal government before this suit.

“And while ASG suggests that recognizing the relevance of the [deed of] cessions is necessary to protect ASG’s constitution, that constitution, does not mention the cessions,” said NMFS, which notes that one of the problems ASG suffers from is attempting to rely on an interest in the cessions.

One of the problems is that the “LVPA Rule takes no position on the meaning of the cessions — the Rule does not purport to interpret the cessions in one way or another,” NMFS argues. “It was ASG’s decision to bring the issue of the meaning of the cessions to the federal courts.”

“While ASG has an interest in a resolution of that question, ASG cannot manufacture its own standing by raising an issue and then asserting that the resolution of that issue establishes standing,” the defendants say.

(See yesterday’s Samoa News on NMFS’ argument on the cessions and cultural fishing).