LVPA lawsuit defendants asking for summary judgement against Am Samoa

Defendants in the Large Vessel Protect Area (LVPA) lawsuit have also asked the federal court in Honolulu for a summary judgment, saying that the plaintiff — the Territory of American Samoa, through the Governor’s Office — has not met its burden to establish standing and thus the court is without subject matter jurisdiction to hear the plaintiff’s claims.

American Samoa had previously sought summary judgment for itself and against the defendants, who filed a response on Monday asking the court to deny plaintiff’s summary judgment and such judgment should be in favor of the defendants.

Additionally, the court’s review in this case is governed by the Administrative Procedure Act and is therefore limited to the administrative record, according to court filings.

The lawsuit, filed in March this year asked the federal court to overturn a ruling made Feb. 3 by the US National Marine Fisheries Service (NMFS) that reduces the LVPA, which is reserved for the local alia fleet, from 50 miles to 12 miles.

Among the defendants in the ASG lawsuit are NMFS along with NMFS official Michael D. Tosatto, the U.S. Department of Commerce, including Commerce Secretary Penny Pritzke and Council executive director Kitty Simonds.

According to the defendants, plaintiff lacks standing to challenge the 2016 LVPA ruling because it failed to establish its alleged concrete interest of cultural fishing rights in federal waters beyond 3 nautical miles from American Samoa’s shores because the Deeds of Cession (Tutuila and Aunu’u 1900 Deed and Manu’a island Deed of 1904) do not protect cultural fishing rights.

Moreover, plaintiff has failed, to among other things, put forth any evidence that application of the LVPA rule will reduce the alia fleet’s fishing activity or catch or harm plaintiff’s culture, and thus plaintiff has failed to establish that its alleged injury is actual or imminent.

Among ASG’s claims in the lawsuit is that the 2016 LVPA rule de-incentivize alia fishing and therefore harms American Samoa’s alia fleet and offshore cultural fishing rights in violation of the Deeds.

However, the defendants argued, among other things, the LVPA rule neither requires nor forbids plaintiff to take any action; it regulates certain U.S. fishing vessels operating within federal waters beyond 3 nautical miles (nm) from the territory’s shores.

Defendants also emphasized several times in its motion for summary judgment the Deeds do not protect cultural fishing rights as they say nothing about fishing or marine resources. Instead the Deeds represent a federal policy to preserve and respect “Samoan traditions concerning land ownership.”

“Interpreting the broad language of the Deeds as establishing cultural fishing rights in federal waters beyond 3 nm from Plaintiff’s shores would be repugnant to the federal paramountcy doctrine’s requirement for an ‘express indication’ of Congress’ intent to establish subordinate limited rights,” the defendants argued.

“Only established subordinate limited rights may co-exist with federal rights,” they said.

American Samoa had also argued that the LVPA rule will push the alia fleet “out of the practice completely” because alia fishermen will be unable “to compete with commercial long-liners.”

However, the defendants counted the 2016 LVPA rule defines an area where certain large vessels are allowed to fish while reducing — not eliminating, areas reserved only to alia and other small vessels.

According to the defendant, NMFS carefully explained that it was reducing, but not eliminating, the size of the 2002 LVPA because of changed circumstances, including increased inefficiencies confronting the longline fleet, along with the dramatic reduction in the number of participants in the small alia program.

Since 2006, the defendants say fewer than three alia have been operating on a regular basis and of these only one was active in 2013 and 2014.

The defendants also say NMFS addressed a comment — during the comment period — that the 2016 LVPA rule would adversely affect ASG’s plan to build a fleet of forty-foot-long “super alia” intended to increase local indigenous participation in fishing in the LVPA.

In its response, NMFS noted plaintiff had received a technical assistance grant for the development of a proto-type “super alia,” but “the vessel has yet to be designed, constructed, or tested,” and additional capital was needed to build a fleet.

NMFS and the Western Pacific Fishery Management Council had promised to work with ASG to “address potential regulatory and other impediments to sustainable fisheries development initiatives,” once the program was developed and implemented.

“In short, while NMFS is not required to withhold an action addressing the legitimate management needs of offshore fisheries based on speculative impacts to a coastal fisheries program that is neither funded nor developed, NMFS expressed willingness to work with Plaintiff to address the needs of such a program once developed and implemented,” the defendants say.

Furthermore, NMFS’s record fully documents the agency’s reasons for approving the 2016 LVPA rule, and clearly satisfied any alleged requirement to respect and protect interests under the Deeds.

Regarding the plaintiff’s argument that NMFS did not properly consider the effects of the 2016 rule on the alia fishery, the defendants say American Samoa offers no record support for this position.

Instead, the defendants say, the record confirms NMFS carefully considered the impacts of the proposed rule on American Samoa fishery participants and fishing communities, and even committed to annually reviewing the effects of the 2016 LVPA Rule on catch rates, small vessel participation, and sustainable fisheries development initiatives.

“Because the record confirms that NMFS “examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a rational connection between the facts found and the choice made,” summary judgment for defendants is appropriate.