Fishing dispute violates fundamental rights: American Samoa

The American Samoa Government (A.S.G.) says a U.S. court decision allowing large fishing boats into its waters threatens to "upend" its special relationship with America. 

In a September 2020 ruling by the Ninth Circuit Court of Appeal, the A.S.G. lost an appeal preventing large fishing vessels from entering its territory. 

In response the A.S.G. this February warned that the decision has the potential to “upend the longstanding relationship between the United States and one of its insular territories.”

The A.S.G. claims the United States is unjustly encroaching on its waters which are meant for exclusive use by local fishers. It further argues the court's decision violates rights it was guaranteed upon being incorporated into America 120 years ago in a treaty known as the Deed of Secession.

Boats larger than 50 feet had previously been blocked from the area as a means of upholding the terms on which Samoa became an American territory. 

The A.S.G. says its original treaty of incorporation with America signed in 1900 recognised its rights to its traditions, including ownership of its land and water.

In 2002 an American court recognised that the exclusion zone occupied an area of 50 nautical miles but subsequent lawsuits have seen the area shrink to just 12 nautical miles. 

American Samoa claims the ruling violates the 1900 treaty, which guarantees them certain special rights but also a trade-off that makes the territory's residents U.S. nationals but not citizens.

An ongoing legal battle over the right to fish in American Samoa's waters has been waged since 2016 but was overturned last September by the Appellate Court. 

The case of the “Territory of American Samoa v. National Marine Fisheries Service” rests on whether sending large boats into American Samoan water violates the Deeds of Cession and the territory’s original rights. 

The Deed of Cession promises that the fa’a Samoa (Samoan way), will not be violated by its incorporation into America. 

In 2016, the National Marine Fisheries Service (N.M.F.S.) changed an earlier regulation that had prohibited large vessels from fishing within 50 miles of American Samoa. The new regulation moved the boundary to 12 miles. 

American Samoa said the new regulation threatened traditional Samoan fishing practices in violation of the Deeds of Cession – and that the fisheries service had ignored the territory’s fundamental rights. 

A District Court ruled in American Samoa’s favour, finding that the increase in fishing activity was a breach. But that decision was overturned last September.

The 9th Circuit determined that the fisheries service had properly considered input from American Samoa and determined it was “of little import” that the fisheries service never addressed the Deeds of Cession specifically.

American Samoa is now asking for a review of this decision. 

Last month the A.S.G. officially filed a 24-page petition that a higher court review the Appeals Court decision, arguing “the 9th Circuit was wrong.” 

The document - known legally as a writ of certiorari - is published online on the U.S. Supreme Court website.

“This case presents an issue of fundamental importance to the Territory of American Samoa: whether the Deeds of Cession are binding and enforceable under federal law,” the A.S.G. argues.

“Since  it  first  became  a  part  of  the  United  States  in  1900,  American  Samoa  has  under-stood  the  Deeds  of  Cession  to  provide  the  basic  legal  foundation  for  the  relationship between the territory and the federal Government

“Now, approximately 120 years later, the United States (in its briefs to the Ninth Circuit) and its federal agencies (in their rulemaking) have disavowed their obligations under the Deeds of Cession. This  reversal,  which  was  completely  unexpected  and  remains  entirely  unexplained,  strikes  the heart of the relationship between American Samoa and the United States.” 

The A.S.G. contends the February decision is based on incorrect interpretation of the law and administrative process. 

“[T]he N.M.F.S. should have recognized that the Deeds of Cession are part of federal law,” the document states. 

“Respondents  argued  to  the  Ninth  Circuit  that  the  Deeds  of  Cession  do  not  extend  to  fishing  rights,  or  could  not  extend  to  fisheries  on  the  high  seas… when American Samoan officials and leaders raised objections based on the Deeds of Cession, the N.M.F.S. simply ignored them.”

The 9th Circuit took an ill-informed approach to the meaning of the Deed of Secession, says A.S.G. 

"The court misconstrued the objections of Samoan officials and leaders—objections that plainly referred to violations of the Deeds of Cession—and ruled it was enough for the N.M.F.S. to consider the impact of the proposed rule on fishing communities more generally,” the request for review states.

“The result was a decision that did not fairly address the district court’s detailed reasons for invalidating the 2016 Large Vessel Prohibited Area (L.V.P.A.) Rule.

“The brusque reasoning of the Ninth Circuit here should not counsel against review. In the end, this petition asks the Court to correct an error with the potential to upend the longstanding relationship between the United States and one of its insular territories. 

“The record in this case, including the well-reasoned opinion of the district court, demonstrates that the N.M.F.S. brushed aside its responsibility to consider the promises made by the United States in accepting sovereignty over American Samoa.”

The respondents successfully filed a motion granting them extra time to file a response to the petition, originally due by 29 March. 

The respondents now have until 28 April, 2021.

The petitioners in the case include: lead counsel Michael F. Williams based in Washington D.C. of the Kirkland & Ellis law firm; Eleasalo Vaalele Ale, the Lieutenant Governor of American Samoa; the Attorney General of American Samoa Fainuulelei Falefatu Alailima-Utu; Alema Leota with the Office of The Governor; William Ledoux and Aitofele Sunia of the Department of Legal Affairs; Dong Hong, Brandon D. Stone and Caroline Darmony with Kirkland & Ellis and two attorneys from Honolulu, Hawai’i: Steven K.S. Chung and Michael L. Iosua with the Imanaka Asato law firm.

The respondents are: the U.S. National Marine Fisheries Service (N.M.F.S.); the U.S. Department of Commerce; the National Oceanic and Atmospheric Administration (N.O.A.A.); Kitty Simmonds, executive director of the Western Pacific Regional Fishery Management Council; Michael D. Tosatto, regional administrator for N.O.A.A.’s N.M.F.S. Pacific Islands Office; Wilbur Ross, Secretary of Commerce and Chris Oliver, assistant administrator for fisheries.


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