American Samoa Fights Feds for Fishing Zone

by Julie St. Louis, Court House News, March 9, 2016

HONOLULU (CN) - American Samoa says the U.S. government violated its sovereign rights by shrinking the zone around the territory that protects it and its fishing culture from large vessels, in Federal Court.

The Territory of American Samoa, in the South Pacific, is the only unincorporated and unorganized sovereign territory in the United States. This status affords the 28,000-square-mile territory special rights to maintain its traditions, culture, and unique control of its lands and waters under a treaty known as Deeds of Cession signed in 1900 by the island's native chiefs and the U.S. government, the 21-page complaint says.

In 2002 the National Marine Fisheries Service, a branch of the National Oceanic and Atmospheric Administration within the Department of Commerce, established an area of approximately three to 50 nautical miles around American Samoa where boats larger than 50 feet were prohibited from fishing.

The service intended to prevent potential gear conflicts and catch competition between large fishing vessels and locally based small fishing vessels, according to the complaint. Because of the limited mobility of smaller vessels, the service believed without the rule fisherman in American Samoa would catch less fish if they faced competition from larger vessels in the nearshore waters that lie within the exclusive U.S. economic zone around American Samoa.

But this past month, the service issued a new final rule that shrank the protection zone from 50 nautical miles to 12.

"This is based on the mistaken belief that the conditions that led to the establishment of the 2002 rule no longer exist," the territory's complaint states.

Specifically, the service said that its reasoning for the new rule is that the number of small vessels in the territory went from 40 to just one in 2014. American Samoa officials dispute this count.

According to the territory's lawsuit, the governor of American Samoa responded with data showing 30 active vessels in the area. The governor also explained that even if there is only one small vessel fishing with long-lines in the protected area, there are approximately 29 others that bottom-fish or troll within the fishery - having converted from long-line fishing.

Only 10 small vessels counted in the service's 2002 rule are now inactive, according to Samoan fisheries department data.

"Given this evidence the concerns upon which the 2002 rule was put in place still exist and there is still a potential for gear conflict with shallow lines that connect to long-line buoys," the territory's complaint states.

"If it is a goal of the council and fisheries service to help increase and protect local participation of small vessels, then decreasing the area from 50 to 12 will do the exact opposite as the risk will outweigh the potential rewards for local fisherman," the territory says in its complaint.

American Samoa also claims the new rule contains nothing to address the importance of the local fishery to the Samoan culture. This violates the Magnuson-Stevens Act - the federal law that governs marine fisheries management in the United States - by failing to ensure rules are consistent with existing applicable laws, in this case the Deeds of Cession.

In his statement, the governor of American Samoa also explained the importance of these waters to the people and reminded the service of the Deeds of Cession and the responsibilities of the U.S. government to protect the culture of American Samoa. Shrinking the area impedes local fisherman the ability to navigate freely in the waters and thus their ability to effectively fish, the territory says.

For its part, the fisheries service says it held three public meetings during the required comment period prior to establishing the new rule and that holding additional meetings would yield no new information. Officials also point out that the new rule requires an annual review of the effects on the local fishery - a point the territory rejects.

"Even if the new rule requires the fisheries service and the council to review the effects of its final rule on an annual basis it is of no benefit to local fisherman," the complaint states. "In effect, the new rule would require local fisherman to invest in equipment and time for the mere hope that they will be able to participate in a fishery that is filled with large long-liners."

The territory also notes there were several comments from the public requesting that the service consider the Samoan culture and the Deeds of Cession when finalizing the rule. One comment came from Dr. Ruth Matagi, director of the American Samoa Department of Marine and Wildlife Resources, and others came from descendants of the chiefs who originally signed the Deeds of Cession in 1900.

Despite the comments, "the fisheries service made no analysis of the rights and guarantees provided in the Deeds of Cession and how the new rule is consistent with them, instead their response simply asserts its jurisdiction under Magnuson-Stevens Act and that views of the stakeholders were 'taken into account,'" according to the complaint.

American Samoa wants a federal judge in Hawaii to vacate and set aside the final rule and declare that it is inconsistent with Deeds of Cession.

"Allowing large long-liners to fish within the ceded areas that were designated as protected properties ignores and violates the U.S. obligation under the Deeds of Cession to safeguard and respect the property rights of the native people of Samoa to their customs and practices including cultural fishing," the complaint says.

In addition to the National Marine Fisheries Service, U.S. Department of Commerce and NOAA, the suit names as defendants Commerce Secretary Penny Pritzker; Western Regional Pacific Fishery Management Council executive director Kitty Simonds; National Marine Fisheries Service assistant administrator Eileen Sobeck; and Michael Tosatto, regional administrator of the NOAA Fisheries Service Pacific Islands Regional Office.

American Samoa is represented by Steven S.K. Chung and Michael Iosua of Imanaka Asato in Honolulu.

None of the parties returned requests for comment by press time.

Full Text: Complaint