Territory of American Samoa v. National Marine Fisheries Service
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS MOTION FOR SUMMARY JUDGMENT 23 AND DENYING DEFENDANTS' COUNTER-MOTION FOR SUMMARY JUDGMENT 28 . Signed by JUDGE LESLIE E. KOBAYASHI on 3/20/2017. (afc) Excerpt of c onclusion: "[T]he Court GRANTS Plaintiff's Motion as to Count I, insofar as this Court ORDERS that the Final rule regarding Pacific Island Pelagic Fisheries; Exemption for Large U.S. Longline Vessels to Fish in Portions of the American Samoa Large Vessel Prohibited Area, 81 Fed. Reg. 5619 (Feb. 3, 2016), be VACATED AND SET ASIDE.[T]he remaining claims, Counts II, III, and IV, are HEREBY DISMISSED AS MOOT. Plaintiff's Motion is therefore DENIED AS MOOT as to Plaintiff's request for summary judgment on Counts II, III, and IV. Defendants' Counter-Motion for Summary Judgment is HEREBY DENIED in its entirety." ORDER further GRANTS Defendants' Motion for Judicial Notice pu rsuant to FRE 201(b)(2). (Motion: Dkt. No. 32 )WRITTEN ORDER follows hearing held February 13, 2017. Minutes of hearing: Dkt. No. 40 . CERTIFICATE OF SERVICEParticipants registered to receive electronic noti fications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NATIONAL MARINE FISHERIES
SERVICE; UNITED STATES
DEPARTMENT OF COMMERCE;
NATIONAL OCEANIC AND
PENNY PRITZKER, Secretary of )
Commerce; KITTY SIMONDS,
Executive Director of Western )
Pacific Regional Fishery
Management Council; EILEEN
Administrator for Fisheries, )
MICHAEL D. TOSATTO, Regional )
Administrator for NOAA’s
National Marine Fisheries
Service Pacific Islands
TERRITORY OF AMERICAN SAMOA,
CIVIL 16-00095 LEK
ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANTS’ COUNTER-MOTION FOR SUMMARY JUDGMENT
On July 25, 2016, Plaintiff Territory of American Samoa
(“Plaintiff”) filed its Motion for Summary Judgment (“Motion”).
[Dkt. no. 23.]
On October 24, 2016, Defendants National Marine
Fisheries Service (“NMFS”); United States Department of Commerce
(“DOC”); National Oceanic and Atmospheric Administration
(“NOAA”); Penny Pritzker, in her official capacity as the
Secretary of Commerce; Kitty Simonds, in her official capacity as
Executive Director of the Western Pacific Regional Fishery
Management Council (“the Council”); Eileen Sobeck, in her
official capacity as Assistant Administrator for Fisheries, NMFS;
and Michael D. Tosatto, in his official capacity as Regional
Administrator, NMFS Pacific Islands Regional Office (all
collectively, “Defendants”) filed their combined memorandum in
opposition to the Motion and Counter-Motion for Summary Judgment
[Dkt. no. 28.]
Plaintiff filed its combined
reply in support of the Motion and memorandum in opposition to
the Counter-Motion (“Plaintiff’s Reply”) on December 8, 2016, and
Defendants filed their reply in support of the Counter-Motion
(“Defendants’ Reply”) on January 19, 2017.
[Dkt. nos. 35, 39.]
These matters came on for hearing on February 13, 2017.
After careful consideration of the motions, supporting and
opposing memoranda, the arguments of counsel, and the relevant
legal authority, Plaintiff’s Motion is HEREBY GRANTED IN PART AND
DENIED IN PART and Defendants’ Counter-Motion is HEREBY DENIED
for the reasons set forth below.
Specifically, this Court GRANTS
Plaintiff’s Motion as to Count I and CONCLUDES that the rule at
issue in this case is invalid.
In light of the ruling on
Count I, this Court DISMISSES Plaintiff’s remaining claims as
Plaintiff filed its Complaint on March 4, 2016,
pursuant to, inter alia, the Administrative Procedure Act
(“APA”), 5 U.S.C. §§ 701-06, and the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”), 16 U.S.C. § 1855(f).
[Complaint at ¶ 7.]
Plaintiff seeks an order setting aside NMFS,
NOAA, and DOC’s Final rule regarding Pacific Island Pelagic
Fisheries; Exemption for Large U.S. Longline Vessels to Fish in
Portions of the American Samoa Large Vessel Prohibited Area, 81
Fed. Reg. 5619 (Feb. 3, 2016).
The rule reduces the size of the
Large Vessel Prohibited Area in American Samoa (“LVPA” and “2016
Plaintiff argues that the rule violates the deeds
of cession of American Samoa, which constitutes a violation of
[Complaint at ¶ 6.]
Plaintiff alleges that:
In promulgating this rule, NMFS acted arbitrarily
by asserting a rationale to support the new rule
that is contrary to the evidence in the record.
NMFS also abused its discretion by failing to
review, address, or consider the Deeds of Cession
as required under the MSA and the Administrative
Procedure Act (“APA”).
Plaintiff asserts the following claims: violation of
the MSA by failing to ensure that the rules promulgated are
consistent with the deeds of cession (“Count I”); [id. at ¶¶ 4956;] breach of fiduciary duty, in violation of APA, § 706(2)(a)
(“Count II”); [id. at ¶¶ 57-61;] failure by NMFS to conduct
adequate review of the deeds of cession before promulgating the
2016 LVPA Rule and failure by the Council to provide training on
the deeds of cession, both in violation of the MSA, 16 U.S.C.
§ 1854, and APA § 706(2)(a) (“Count III”); [id. at ¶¶ 62-68;] and
arbitrary and capricious action, in violation of APA § 706(2)(a)
(“Count IV”) [id. at ¶¶ 69-71].
Plaintiff seeks the following relief: 1) an order
vacating and setting aside the 2016 LVPA Rule; 2) a declaratory
judgment that a) the rule violates the MSA and APA because it is
inconsistent with the deeds of cession, b) the rule is a breach
of the United States’ fiduciary duty to the people of American
Samoa, c) NMFS violated the MSA and the APA by failing to review
and address the deeds of cession, and d) NMFS acted arbitrarily
and capriciously because it relied on a rationale that was
contrary to the evidence before it; 3) any appropriate injunctive
relief; 4) reasonable attorneys’ fees and costs; and 5) any other
[Id. at pgs. 20-21.]
Defendants filed their answer to the Amended Complaint
on April 28, 2016.
[Dkt. no. 18.]
Legal and Historical Background
The Ninth Circuit has stated:
The Magnuson–Stevens Fishery Conservation and
Management Act (“MSA”), 16 U.S.C. §§ 1801–1884,
“was enacted to establish a federal-regional
partnership to manage fishery resources.” Nat’l
Res. Def. Council, Inc. v. Daley, 209 F.3d 747,
749 (D.C. Cir. 2000). Under the MSA, the federal
government exercises “sovereign rights and
exclusive fishery management authority over all
fish, and all Continental Shelf fishery resources,
within the exclusive economic zone” (“EEZ”), 16
U.S.C. § 1811(a), which extends from the seaward
boundary of each coastal state to 200 miles
offshore, id. § 1802(11); City of Charleston v. A
Fisherman’s Best, Inc., 310 F.3d 155, 160 (4th
Cir. 2002). The MSA expressly preserves the
jurisdiction of the states over fishery management
within their boundaries. See 16 U.S.C.
To manage fishing in the EEZ, the MSA calls
for the creation of regional Fishery Management
Councils (“FMCs”), composed of state and federal
officials and experts appointed by the Secretary
of the National Marine Fisheries Service (“NMFS”).
16 U.S.C. § 1852(b)(1)-(2). With the cooperation
of “the States, the fishing industry, consumer and
environmental organizations, and other interested
persons,” id. § 1801(b)(5), the NMFS and FMCs
develop and promulgate Fishery Management Plans
(“FMPs”) to “achieve and maintain, on a continuing
basis, the optimum yield from each fishery,” id.
§ 1801(b)(4). In the MSA, “optimum yield” means
the amount of fish that “will provide the greatest
overall benefit to the Nation, particularly with
respect to food production and recreational
opportunities, and taking into account the
protection of marine ecosystems.” Id. § 1802(33);
see also 50 C.F.R. § 600.310(e)(3).
Chinatown Neighborhood Ass’n v. Harris, 794 F.3d 1136, 1139-40
(9th Cir. 2015) (footnotes omitted), cert. denied, 136 S. Ct.
The Council is the regional council for Hawai`i,
“The term ‘State’ means each of the several States, the
District of Columbia, the Commonwealth of Puerto Rico, American
Samoa, the Virgin Islands, Guam, and any other Commonwealth,
territory, or possession of the United States.” 16 U.S.C.
American Samoa, Guam, and the Commonwealth of the Northern
16 U.S.C. § 1852(a)(1)(H).
thirteen voting members include fishery management officials
representing those areas, and eight citizens appointed by the
Secretary from those areas.
[Counter-Motion at 6 n.3 (citing 16
U.S.C. § 1852(a)(1)(H)).]
The FMPs and FMP amendments that the regional councils
prepare must be reviewed and approved by NMFS, and must comply
with the requirements of 16 U.S.C. § 1853(a) and applicable laws.
See 16 U.S.C. § 1854(a)(1)-(3).
In addition, regional councils
can propose regulations or modifications to regulations that are
necessary to implement an FMP or an FMP amendment, and the
Secretary can prepare an FMP or an FMP amendment.
§§ 1853(c), 1854(c).
Section 1854(c) states, in pertinent part:
(6) The Secretary may propose regulations in the
Federal Register to implement any plan or
amendment prepared by the Secretary. In the case
of a plan or amendment to which paragraph (4)(A)
applies, such regulations shall be submitted to
the Council with such plan or amendment. The
comment period on proposed regulations shall be 60
days, except that the Secretary may shorten the
comment period on minor revisions to existing
(7) The Secretary shall promulgate final
regulations within 30 days after the end of the
comment period under paragraph (6). The Secretary
must publish in the Federal Register an
explanation of any substantive differences between
the proposed and final rules. All final
regulations must be consistent with the fishery
management plan, with the national standards and
other provisions of this chapter, and with any
other applicable law.
The ten “national standards for fishery conservation and
management” are set forth in 16 U.S.C. § 1851(a).
Regulations promulgated pursuant to the MSA are subject
to judicial review under certain provisions of the APA.
U.S.C. § 1855(f).
Section 1855(f)(1)(B) states that “the
appropriate court shall only set aside any such regulation or
action on a ground specified in section 706(2)(A), (B), (C), or
(D) of” the APA.
American Samoa is an unincorporated and unorganized
United States territory.
[Complaint at ¶ 8; Answer at ¶ 8
(admitting those portions of Plaintiff’s ¶ 8).]
agree that: “At the turn of the 20th Century, the United States
Government entered into and executed two separate Deeds of
Cession between the United States Government and the leaders of
the islands of Tutuila, Aunu`u, Ofu, Olosega, Ta`u and Rose
[Complaint at ¶ 16; Answer at ¶ 16.]
One is the
Tutuila and Aunu`u Deed of Cession, dated April 17, 1900, and the
other is the Manu`a Deed of Cession, dated July 14, 1904
(collectively “the Deeds of Cession”).
The Deeds of Cession
ceded certain lands and surrounding bodies of water to the United
[Complaint at ¶¶ 17-18; Answer at ¶¶ 17-18 (admitting
portions of Plaintiff’s ¶¶ 17-18).]
On October 24, 2016, Defendants filed a Motion for
Judicial Notice Pursuant to FRE 201(b)(2) (“RJN”).
Defendants ask this Court to take judicial notice of the
contents of the Convention of 18992 and the Deeds of Cession,
which they obtained from the American Samoa Bar Association
[RJN at 1-2.]
On December 5, 2016, Plaintiff filed a
statement of no opposition to the RJN.
[Dkt. no. 32.]
The Cession of Tutuila and Aunu`u states, in pertinent
Now know Ye:
That we, the Chiefs whose names are hereunder
subscribed by virtue of our office as the
hereditary representatives of the people of
said islands, in consideration of the
premises herein-before recited and for divers
good considerations us hereunto moving, have
ceded, transferred, and yielded up unto
Commander B. F. Tilley of the U.S.
“Abarenda.” the duly accredited
representative of the Government of the
United States of America in the islands
hereinafter mentioned or described for and on
behalf of the said government. All these the
islands of Tutuila and Aunuu and all other
islands, rocks, reefs, foreshores and waters
In the Convention of 1899, entered into on December 2,
1899 and ratified on February 16, 1900, Germany and Great Britain
renounced in favor of the United States their “rights and claims
over and in respect to the Island of Tutuila and all other
islands of the Samoan group east of Longitude 171 degrees west of
Greenwich.” [RJN, Attachment at 2.] All three documents that
are the subject of the RJN are attached to the RJN as a single
Attachment. Because the Attachment is not consecutively
paginated, the Court will refer to the page numbers assigned to
the Attachment in the district court’s electronic case filing
lying between the 13th degree and the 15th
degree of south latitude and between the
171st degree and 167th degree of west
longitude from the meridian of Greenwich,
together with all sovereign rights thereunto
belonging and possessed by us, to hold the
said ceded territory unto the Government of
the United States of America; to erect the
same into a separate District to be annexed
to the said Government, to be known and
designated as the District of “Tutuila”.
The Government of the United States of
America shall respect and protect the
individual rights of all people dwelling in
Tutuila to their lands and other property in
said District; but if the said Government
shall require any land or any other thing for
Government uses, the Government may take the
same upon payment of a fair consideration for
the land, or other thing, to those who may be
deprived of their property on account of the
desire of the Government.
[RJN, Attachment at 4.]
The Cession of Manu`a Islands states, in
Now Know Ye: (1) That we, Elesare Tuimanu`a and
the Chief whose names are hereunder subscribed, in
consideration of the premises hereinbefore
recited, have ceded, and, by, These Presents Do
Cede, unto the Government of the United States of
America, All Those, The Islands of the Manu`a
Group, being the whole of eastern portion of the
Samoan Islands lying east of Longitude 171 degrees
west of Greenwich and known as Tau, Olosega, Ofu,
and Rose Islands, and all other, the waters and
property and adjacent thereto, together with all
sovereign rights thereunto belonging and possessed
To hold the said ceded territory unto the
Government of the United States of America, to
erect the same into a territory or district of the
(2) It is intended and claimed by these Presents
that there shall be no discrimination in the
suffrages and political privileges between the
present residents of said Islands and citizens of
the United States dwelling therein, and also that
the rights of the Chiefs in each village and of
all people concerning their property according to
their customs shall be recognized.
[Id. at 6.]
Plaintiff asserts that: “The property and
surrounding waters described in the Deeds of Cession measure more
than 28,000 square miles” (“Ceded Area”).
[Complaint at ¶ 21
(citing Complaint, Exh. C (map of Ceded Area)).]
In 1929, Congress enacted 48 U.S.C. § 1661, which
states, in pertinent part:
The cessions by certain chiefs of the islands of
Tutuila and Manua and certain other islands of the
Samoan group lying between the thirteenth and
fifteenth degrees of latitude south of the Equator
and between the one hundred and sixty-seventh and
one hundred and seventy-first degrees of longitude
west of Greenwich, herein referred to as the
islands of eastern Samoa, are accepted, ratified,
and confirmed, as of April 10, 1900, and July 16,
2002 LVPA Rule
On January 30, 2002, NMFS, NOAA, and DOC adopted a
Final rule regarding Fisheries Off West Coast States and in the
Western Pacific; Pelagic Fisheries; Prohibition on Fishing for
Pelagic Management Unit Species; Nearshore Area Closures Around
American Samoa by Vessels More Than 50 Feet in Length (“2002 LVPA
67 Fed. Reg. 4369.3
NMFS issues this final rule to prohibit certain
vessels from fishing for Pacific pelagic
management unit species (PMUS) within nearshore
areas seaward of 3 nautical miles (nm) to
approximately 50 nm around the islands of American
Samoa. This prohibition applies to vessels that
measure more than 50 ft (15.2 m) in length overall
and that did not land pelagic management unit
species in American Samoa under a Federal longline
general permit prior to November 13, 1997.
This action is intended to prevent the potential
for gear conflicts and catch competition between
large fishing vessels and locally based small
fishing vessels [(“alias”)]. Such conflicts and
competition could lead to reduced opportunities
for sustained participation by residents of
American Samoa in the small-scale pelagic fishery.
. . . .
The proposed rule was published on July 31, 2001.
“‘Western Pacific pelagic management unit species’ include
different species of tuna, billfish, shark, other pelagic fish,
and squid.” [Counter-Motion at 10 n.5 (citing 50 C.F.R.
To fish for Western Pacific pelagic management
unit species “using longline gear in the EEZ
around American Samoa[,]” “[a] vessel of the
United States must be registered for use under a
valid American Samoa longline limited access
permit.” 50 C.F.R. § 665.801(c)(1). These
limited access permits are issued to the following
four vessel size classes: Class A vessels (less
than or equal to forty feet long); Class B vessels
(over forty feet and up to fifty feet long);
Class C vessels (over fifty feet and up to seventy
feet long); and Class D vessels (over seventy feet
long). Id. § 665.816(c).
[Counter-Motion at 10 n.6 (alterations Defendants’).]
. . . [S]mall vessel fishermen have raised
concerns over the potential for gear conflicts
between the small-vessel (less than or equal to 50
ft (15.2 m) in length overall) fishing fleet and
large longline fishing vessels greater than 50 ft
(15.2 m) length overall, hereafter called “large
vessels,” targeting PMUS in the American Samoa
pelagic fishery, as well as regarding adverse
impacts on fishery resources resulting from the
increased numbers of large fishing vessels in the
fishery. Due to the limited mobility of the
smaller vessels, an influx of large domestic
vessels fishing in the nearshore waters of the
U.S. exclusive economic zone (EEZ) around American
Samoa could lead to gear conflicts, catch
competition, and reduced opportunities for
sustained fishery participation by the locally
based small boat operators. Local fishermen and
associated fishing communities depend on this
fishery not only for food, income, and employment,
but also for the preservation of their Samoan
67 Fed. Reg. at 4369.
2016 LVPA Rule
On August 25, 2015, NMFS published the proposed rule
and a draft environmental assessment for public comment.6
Fed. Reg. 51527.
“NMFS received comments from over 270
individuals, commercial and recreational fishermen, businesses,
Territorial government offices (including the Governor of
American Samoa and the American Samoa Department of Marine and
Wildlife Resources), Federal agencies, and non-governmental
NMFS’s Regulatory Amendment, Exemption for Large (š50 ft)
U.S. Longline Vessels to Fish in Portions of the American Samoa
Large Vessel Prohibited Areas, Including an Environmental
Assessment and Regulatory Impact Review, dated January 8, 2016
(“2016 LVPA EA”) is Administrative Record (“AR”) at A185-91.
2016 LVPA Rule, 81 Fed. Reg. at 5619.
Ultimately, the 2016 LVPA Rule
allows large federally permitted U.S. longline
vessels to fish in certain areas of the Large
Vessel Prohibited Area (LVPA). NMFS will continue
to prohibit fishing in the LVPA by large purse
seine vessels. The fishing requirements for the
Rose Atoll Marine National Monument remain
unchanged. The intent of the rule is to improve
the viability of the American Samoa longline
fishery and achieve optimum yield from the fishery
while preventing overfishing, in accordance with
National Standard 1.
. . . .
SUPPLEMENTARY INFORMATION: The American Samoa
large vessel prohibited area (LVPA) extends
seaward approximately 30-50 nm around the various
islands of American Samoa (see 50 CFR 665.806(b)).
Federal regulations restrict vessels 50 ft and
longer from fishing for pelagic management unit
species within the LVPA. The Council and NMFS
established the LVPA in 2002 to prevent the
potential for gear conflicts and catch competition
between large and small fishing vessels. . . .
Since 2002, the American Samoa pelagic
fisheries have changed such that the conditions
that led the Council and NMFS to establish the
LVPA are no longer present. The LVPA may be
unnecessarily reducing the efficiency of the
larger American Samoa longline vessels by
displacing the fleet from a part of their
historical fishing grounds.
To address the current fishery conditions,
the Council recommended that NMFS allow federally
permitted U.S. longline vessels 50 ft and longer
to fish in portions of the LVPA. Specifically,
this action allows large U.S. vessels that hold a
Federal American Samoa longline limited entry
permit to fish within the LVPA seaward of 12 nm
around Swains Island, Tutuila, and the Manua
Islands. NMFS will continue to prohibit fishing
in the LVPA by large purse seine vessels. The
fishing requirements for the Rose Atoll Marine
National Monument also remain unchanged.
This action allows fishing in an additional
16,817 nm of Federal waters, allowing large
longline vessels to distribute fishing effort over
a larger area. This may reduce catch competition
among the larger vessels and promote economic
efficiency by reducing transit costs. This action
is intended to improve the efficiency and economic
viability of the American Samoa longline fleet,
while ensuring that fishing by the longline and
small vessel fleets remains sustainable on an
ongoing basis. NMFS will continue to prohibit
fishing by large longline vessels within the U.S.
Exclusive Economic Zone (EEZ) from 3-12 nm around
the islands, thus maintaining non-competitive
fishing opportunities for the small-vessel
longline fleet. . . .
Id. (emphasis in original) (footnote omitted).
Rule was effective as of January 29, 2016.
The 2016 LVPA
Thus, the 2016
LVPA Rule allows permitted Class C and D vessels to fish within
the waters that used to be part of the LVPA under the 2002 rule.
In the Complaint, Plaintiff alleges that NMFS’s
position that the conditions giving rise to the 2002 LVPA Rule no
longer exist is mistaken.
“Specifically, NMFS determined that
the decrease in local alias meant that potential for gear
conflict and catch conflict is no longer a concern.”
at ¶ 28.]
Plaintiff also alleges that the 2016 LVPA Rule “de-
incentivizes inactive or aspiring local alias that want to enter
This new rule will also lead to overcrowding of the
fishery by large vessels.”
[Id. at ¶ 31.]
Further, the rule
allegedly fails to address the importance of the fishery to the
American Samoan culture.
Plaintiff states that the 2016 LVPA
Rule did not cite to any of the comments that referred to
cultural reasons and the Deeds of Cession as grounds to maintain
the 2002 LVPA Rule, including the comments by: the Governor,
Dr. Ruth Matagi Tofiga, the director of the American Samoa
Department of Marine and Wildlife Resources and a member of the
Council; and descendants of the chiefs who signed the Deeds of
[Id. at ¶¶ 34-36.]
The 2016 LVPA Rule does state:
Comment 27: Several commenters noted that in the
Deed of Cession with the chiefs of the islands of
Tutuila, Aunuu, and Manua Islands, the United
States promised to protect the lands, preserve the
traditions, customs, language and culture, Samoan
way of life, and the waters surrounding the
islands, and that all the science and
environmental analysis should not supersede the
rights of the people of these islands.
Response: NMFS’ decision to approve the Council’s
recommendation to modify the LVPA is consistent
with its authority under the Magnuson-Stevens Act
to manage fishery resources in the U.S. EEZ. This
action relieves an area restriction that applied
to certain large commercial fishing operators
within a portion of the US EEZ (generally 12 to 50
nm from shore), based on NMFS’ determination that
the restriction no longer serves the conservation
and management purposes for which it was
developed. Importantly, this action preserves
full access to these waters by smaller vessels,
including alias, sport fishers, and artisanal
fishing vessels, throughout the EEZ, as authorized
under the existing American Samoa Archipelagic
Fishery Ecosystem Plan and implementing
regulations. Further, this action does not alter
the authority of American Samoa to manage its
coastal fisheries to the extent authorized under
the Magnuson-Stevens Act, 16 U.S.C. 1856.
NMFS took particular care to ensure that the views
of American Samoa stakeholders, including
fishermen, fishing communities, and the American
Samoa government, were solicited and taken into
account throughout the development of this action.
Consistent with the Magnuson-Stevens Act, the
Council and NMFS provided a number of
opportunities for American Samoa’s participation
during all material phases of the development of
this measure, including Council meetings to
discuss the amendment, the Coastal Zone Management
Act (CZMA) process, and public meetings held in
American Samoa (see response to Comment 1).
81 Fed. Reg. at 5623.
Plaintiff asserts that the 2016 LVPA Rule
does not address “the rights and guarantees provided in the Deeds
of Cession” and whether the rule is consistent with them.
[Complaint at ¶ 38.]
Plaintiff argues that, by “allow[ing] large
longliners to fish within ceded areas that were designated as
protected properties,” the 2016 LVPA Rule violates the Deeds of
Cession because the United States government agreed “to safeguard
and respect the property rights of the native people of American
Samoa according to their customs and practices, which include
cultural fishing practices,” and Plaintiff alleges those
practices “will be greatly inhibited when the LVPA is reduced
from 50 to 12 nautical miles.”
[Id. at ¶ 45.]
Because the rule
is not consistent with the applicable law, including the Deeds of
Cession, Plaintiff argues that it violates the MSA and is an
abuse of discretion under the APA.
[Id. at ¶¶ 38, 43.]
further argues that the failure to review and address the Deeds
of Cession was the result of the Council’s failure to train
Council members regarding applicable laws, as required by the
Plaintiff asserts that the 2016 LVPA Rule was arbitrary,
capricious, and an abuse of discretion because the proposed rule
was incomplete and the Council was “uninformed.”
[Id. at ¶ 39.]
In the Motion, Plaintiff seeks summary judgment as to
Counts I, II, and III.
[Motion at 2.]
The Council has recognized that “[American] Samoa has a
long history of dependence on pelagic fishery resources.”
Plaintiff emphasizes that, during the comment period and
at Council meetings prior to the adoption of the 2016 LVPA Rule,
“dozens of American Samoans objected to the new rule as a
violation of the Deeds, including many highly respected American
Samoa officials” – such as those mentioned supra, and alia
[Mem. in Supp. of Motion at 6-7 (citing AR E372,
E270, E113, E350-65, E85, G2135-36).]
In fact, the Council of
Treaty Chiefs of Tutuila, Aunu`u and Manu`a and the American
Samoa Council of District Governors submitted a joint resolution,
dated June 17, 2014 (“Joint Resolution”).8
[AR at E350-65.]
AR at H001-280 is the Council’s Measure to limit pelagic
longline fishing effort in the Exclusive Economic Zone around
American Samoa – Amendment 11 to the Fishery Management Plan for
the Pelagic Fisheries of the Western Pacific Region – dated
December 1, 2003 (“Amendment 11”). AR at H188-210 is Appendix I
to Amendment 11, titled Fishery Impact Statement.
The Joint Resolution was apparently prepared when the
Plaintiff asserts that, despite this, Defendants failed to
consider how the rule would affect American Samoa’s cultural
Plaintiff argues that the Deeds of Cession are among
the applicable laws that a regulation must comply with.
Moreover, the deeds are treaties that are binding upon the United
States and its agencies, and they have been codified as federal
Plaintiff urges this Court to conclude that the Deeds of
Cession protect American Samoans’ cultural fishing rights because
the Deeds of Cession protect their rights and customs, even if
fishing is not expressly mentioned in the deeds.
Plaintiff argues that Defendants failed to consider the
cultural practices of American Samoa’s local alia fisherman and
the effect that the rule would have on American Samoan culture
because their fishing rights would be diminished.
emphasizes that the reduction of the LVPA from fifty to twelve
nautical miles is significant, and there is no indication that
the measure would benefit local fisherman or the cultural
practices of American Samoans.
Plaintiff states that fishing is
an “integral part of the American Samoan culture,” and Plaintiff
argues that the 2016 LVPA Rule will harm the alia fishermen and
American Samoan cultural practices “by allowing large vessels
Council was considering reducing the size of the LVPA in 2014.
equipped with technically advanced boats and fishing gear, as
well as increased manpower, to fish in the same waters as the
[Mem. in Supp. of Motion at 13.]
therefore argues that the 2016 LVPA Rule is arbitrary and
capricious because it is inconsistent with the federal
government’s duty to protect the customary practices of American
Samoa, as the government agreed to do in the Deeds of Cession.
Plaintiff also argues that the 2016 LVPA Rule violates
the MSA because it is a FMP and a regulation, and it was adopted
without considering applicable federal law.
It is arbitrary and
capricious because Defendants failed to consider an important
aspect of the problem – i.e., the cultural and customary
practices protected in the Deeds of Cession.
As to Count II, Plaintiff asserts that the Deeds of
Cession establish a trust relationship between the United States
and American Samoa, and therefore the United States has a
fiduciary duty to American Samoa.
Plaintiff argues that the
United States breached its fiduciary duty to American Samoa when
Defendants adopted the 2016 LVPA Rule.
Defendants first argue that all of Plaintiff’s claims
Defendants argue that Defendant Kitty Simmonds is not a
proper party in this case. [Counter-Motion at 14 n.7.] This
issue is not properly before this Court because Defendants should
have raised it in a motion to dismiss rather than in a footnote
within their motion seeking summary judgment.
fail because Plaintiff lacks standing.
argument regarding the standing issue is that Plaintiff has not
established that it has suffered any injury in fact because the
Deeds of Cession do not reserve cultural fishing rights in
federal waters because the deeds refer to land and property.
See, e.g., Corp. of Presiding Bishop of Church of Jesus Christ of
Latter-Day Saints v. Hodel, 830 F.2d 374, 386 (D.C. Cir. 1987).
If this Court concludes that Plaintiff has standing,
Defendants argue that the Court should rule in their favor on the
merits of each claim.
Defendants argue that the United States
owns and has sovereign authority over the waters in question
under the paramountcy doctrine and the Territorial Submerged
Lands Act (“TSLA”), 15 U.S.C. §§ 1704-08.
Defendants also assert
that NMFS complied with the requirements of Coastal Zone
Management Act (“CZMA”), 16 U.S.C. §§ 1451-66, in promulgating
the 2016 LVPA Rule.
As to the alleged violations of the MSA, Defendants
argue that the Deeds of Cession do not constitute “any other
applicable law” that NMFS was required to ensure the proposed
rule was consistent with.
Further, even assuming that the Deeds
of Cession do protect American Samoan cultural fishing rights and
that the deeds constituted “any other applicable law” for
purposes of the MSA, Defendants argue that NMFS adequately
considered and responded to the concerns raised about the rule’s
impact on American Samoan fishing communities.
that the 2016 LVPA Rule was ultimately adopted because the 2002
LVPA Rule was no longer necessary or appropriate under the MSA.
Comment 3: Several commenters said that the large
longline vessels are all vessels of the United
States and should have the same right to fish in
American Samoa waters as the small alia vessels.
Response: NMFS agrees that all federally permitted
American Samoa longline vessels are vessels of the
United States. Furthermore, NMFS believes that
all fishing sectors should be treated equally,
unless there is a legitimate conservation and
management need to treat them differently. Here,
NMFS is approving an action that exempts large
longline vessels from an area that is currently
restricted to them, but open to other fishing
vessels, because the conditions that originally
led to the restriction for the large longline
vessels no longer exists. Specifically, NMFS and
the Council established the LVPA in 2002 to
separate small longline vessels from large
longline and purse seine vessels, and reduce the
potential for gear conflict and catch competition
between small and large vessels. At that time,
the American Samoa longline fishery consisted of
about 40 small alia (small fishing catamarans less
than 50 ft long) and 25 large conventional
mono-hull longline vessels. However, since 2006,
fewer than three alia have been operating on a
regular basis; and of these, only one was active
in 2013 and 2014.
As described in the EA, fewer than 50 other small
commercial and recreational vessels fish for
yellowfin and skipjack tunas and billfishes in
nearshore waters and on offshore banks around
American Samoa. Therefore, even accounting for
the potential for competition with pelagic troll
and recreational vessels, the conditions that led
to the establishment of the LVPA in 2002 no longer
support the full extent (30-50 nm) of the original
prohibited area for longlining.
. . . .
2016 LVPA Rule, 81 Fed. Reg. at 5260 (emphasis added).
As to the
factual evidence that was the basis for the 2016 LVPA Rule,
Defendants argue that Plaintiff has not shown that NMFS failed to
consider contradictory evidence or failed to articulate a
rational basis for the rule.
Defendants contend that Count II is barred by the
United States’ sovereign immunity, and Plaintiff either abandoned
or waived Count IV by failing to move for summary judgment.
The parties agree that this Court’s review of the 2016
LVPA Rule is pursuant to the Magnuson-Stevens Act.
reviewing a regulation promulgated pursuant to the MagnusonStevens Act, a district court “shall only set aside any such
regulation or action on a ground specified in section 706(2)(A),
(B), (C), or (D) of” the APA.
16 U.S.C. § 1855(f)(1)(B).
APA provides, in relevant part:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret
constitutional and statutory provisions, and
determine the meaning or applicability of the
terms of an agency action. The reviewing court
. . . .
(2) hold unlawful and set aside agency
action, findings, and conclusions found to
(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in
accordance with law;
(B) contrary to constitutional right,
power, privilege, or immunity;
(C) in excess of statutory
jurisdiction, authority, or limitations,
or short of statutory right; [and]
(D) without observance of procedure
required by law[.]
5 U.S.C. § 706.
Thus, the Ninth Circuit has stated:
In reviewing regulations promulgated under the
[Magnuson-Stevens Act], “our only function is to
determine whether the Secretary [of Commerce] ‘has
considered the relevant factors and articulated a
rational connection between the Facts found and
the choice made.’” Alliance Against IFQs v.
Brown, 84 F.3d 343, 345 (9th Cir. 1996) (quoting
Wash. Crab Producers, Inc. v. Mosbacher, 924 F.2d
1438, 1440–41 (9th Cir. 1990)). “We determine
only if the Secretary acted in an arbitrary and
capricious manner in promulgating such
regulations.” Alliance Against IFQs, 84 F.3d at
345. “Under the APA, we will reverse the agency
action only if the action is arbitrary,
capricious, an abuse of discretion, or otherwise
contrary to law.” Lands Council v. Powell, 379
F.3d 738, 743 (9th Cir. 2004), amended by 395 F.3d
1019 (9th Cir. 2005).
Fishermen’s Finest, Inc. v. Locke, 593 F.3d 886, 894 (9th Cir.
2010) (some alterations in Fishermen’s Finest).
“Even when an
agency explains its decision with ‘less than ideal clarity,’” the
Court must uphold the action “if the agency’s path may be
San Luis & Delta-Mendota Water Auth. v.
Locke, 776 F.3d 971, 994 (9th Cir. 2014) (citation omitted).
This deference is “at its highest where a court is reviewing an
agency action that required a high level of technical expertise.”
The Ninth Circuit has stated that:
“Review under the arbitrary and capricious
standard is narrow, and we do not substitute our
judgment for that of the agency.” Ecology Ctr. v.
Castaneda, 574 F.3d 652, 656 (9th Cir. 2009)
(alterations omitted) (quoting Lands Council v.
McNair (Lands Council II), 537 F.3d 981, 987 (9th
Cir. 2008) (en banc), overruled on other grounds
by Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d 249
(2008)) (internal quotation marks omitted).
“Rather, we will reverse a decision as arbitrary
and capricious only if the agency relied on
factors Congress did not intend it to consider,
entirely failed to consider an important aspect of
the problem, or offered an explanation that runs
counter to the evidence before the agency or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.” Id. (quoting Lands Council II, 537
F.3d at 987) (internal quotation marks omitted).
Cascadia Wildlands v. Bureau of Indian Affairs, 801 F.3d 1105,
1110 (9th Cir. 2015).
This showing is a “heavy burden.”
Pharmacy Care v. Sebelius, 716 F.3d 1235, 1244 (9th Cir. 2013).
The arbitrary and capricious standard
requires the [agency] to articulate  a rational
connection between the facts found and the choice
made. [We] review the record to ensure that
agency decisions are founded on a reasoned
evaluation of the relevant factors, and may not
rubberstamp . . . administrative decisions that
[are] inconsistent with a statutory mandate or
that frustrate the congressional policy underlying
a statute . . . .
Sierra Club v. U.S. E.P.A., 671 F.3d 955, 961 (9th Cir. 2012)
(some alterations in Sierra Club) (citations and quotation marks
As noted supra, Defendants ask this Court to take
judicial notice of the contents of the Convention of 1899 and the
Deeds of Cession, and Plaintiff does not oppose the RJN.
A court “must take judicial notice if a party requests
it and the court is supplied with the necessary information.”
Fed. R. Evid. 201(c)(2).
“The court may judicially notice a fact
that is not subject to reasonable dispute because it . . . can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”
Convention of 1899 and the Deeds of Cession are historical
documents that are subject to judicial notice.
See, e.g., United
States v. States of Louisiana, et al., 363 U.S. 1, 12–13 (1960)
(“Both sides have presented in support of their respective
positions a massive array of historical documents, of which we
take judicial notice.”).
Further, the versions of the documents
submitted with the RJN were obtained from the American Samoa Bar
Association, which is a source whose accuracy cannot reasonably
be questioned regarding the authenticity of these documents.
This Court therefore GRANTS Defendants’ RJN.
At the outset, this Court must address Defendants’
argument that Plaintiff lacks standing to pursue the claims in
The Ninth Circuit has stated that, in order to prove
Article III standing, a plaintiff must establish:
(1) the existence of an injury-in-fact that is
concrete and particularized, and actual or
imminent; (2) the injury is fairly traceable to
the challenged conduct; and (3) the injury is
likely to be redressed by a favorable court
decision. Salmon Spawning & Recovery Alliance v.
Gutierrez, 545 F.3d 1220, 1224-25 (9th Cir. 2008)
(citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351
Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807
F.3d 1031, 1043 (9th Cir. 2015).
As to Plaintiff’s claim that it
has parens patriae standing:
A claim of parens patriae standing is
distinct from an allegation of direct injury. See
Wyoming v. Oklahoma, 502 U.S. 437, 448–449, 451,
112 S. Ct. 789, 117 L. Ed. 2d 1 (1992). Far from
being a substitute for Article III injury, parens
patriae actions raise an additional hurdle for a
state litigant: the articulation of a “quasisovereign interest” “apart from the interests of
particular private parties.” Alfred L. Snapp &
Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S.
592, 607, 102 S. Ct. 3260, 73 L. Ed. 2d 995 (1982)
(emphasis added). Just as an association suing on
behalf of its members must show not only that it
represents the members but that at least one
satisfies Article III requirements, so too a State
asserting quasi-sovereign interests as parens
patriae must still show that its citizens satisfy
Article III. Focusing on [the plaintiff state]’s
interests as quasi-sovereign makes the required
showing here harder, not easier. The Court, in
effect, takes what has always been regarded as a
necessary condition for parens patriae standing —
a quasi-sovereign interest — and converts it into
a sufficient showing for purposes of Article III.
Massachusetts v. E.P.A., 549 U.S. 497, 538 (2007) (emphases in
Massachusetts) (some citations omitted).
interest” is a “public or governmental interest that concern[s]
the state as a whole.”
Id. at 520 n.17 (citations and quotation
The long-standing cultural significance of fishing in
American Samoa is well recognized.
During the rule-making
process that led to the adoption of the 2002 LVPA Rule, the
American Samoans are among the last fullblooded Polynesians. Their dependence on fishing
undoubtedly goes back as far as the peopled
history of the Samoa islands, about 3,500
years ago. Many aspects of the culture have
changed in contemporary times but Samoans have
retained a traditional social system that
continues to strongly influence and depend upon
the culture of fishing. . . .
Traditional Samoan values still exert a
strong influence on when and why people fish, how
they distribute their catch and the meaning of
fish within the society. When distributed, fish
and other resources move through a complex and
culturally embedded exchange system . . . .
. . . .
American Samoa has a long history of
harvesting pelagic fish species, especially
skipjack and small yellowfin tuna, which has
special significance in customary exchanges. Due
to a rapidly growing population and
overexploitation of some inshore seafood
resources, the American Samoa community is
becoming even more dependent on pelagic fish for
food, employment and income from fisheries and for
perpetuation of fa`a Samoa (Samoan cultural
heritage and way of life). Despite increasing
commercialization, the small-scale pelagic fishery
continues to contributes [sic] strongly to the
cultural identity and social cohesion of American
Samoa. The role of pelagic fish in meeting
cultural obligations is at least as important as
the contributions made to nutritional or economic
well-being of island residents.
[AR at F072-73 (citations omitted).10]
The cultural exchange
system for food and other resources supports “extended families
and traditional leaders.”
[AR at H203.]
Alia fishermen are also
expected to contribute fish for ceremonial purposes.
The 2002 LVPA Rule established the LVPA zone “for the
sole use of local alia (traditional fishing boat) fishermen and
thereby [made it] available to the indigenous population of
American Samoa to nurture and practice traditional methods of
fishing with canoes, alias and other traditional vessels, an art
that is fast disappearing.”
[AR at E271 (page 2 of official
comment on the proposed 2016 LVPA Rule by Lolo M. Moliga,
Governor of American Samoa).]
This Court FINDS that, in light of the long-standing
significance of fishing to the fa`a Samoa, Plaintiff has a quasisovereign interest in protecting the American Samoan’s cultural
fishing rights to preserve their culture for the benefit of the
American Samoan people as a whole.
This is a separate and
AR at F053-145 is the Council’s Prohibition on fishing
for pelagic management unit species within closed areas around
the islands of American Samoa by vessels more than 50 feet in
length – Framework Measure under the Fishery Management Plan for
the Pelagic Fisheries of the Western Pacific Region, dated
November 1, 2000 and revised December 4, 2001.
distinct interest from the interests of individual American
Samoans who would arguably have standing to challenge the 2016
LVPA Rule because the rule allegedly impairs their ability to
fish for cultural, and other, purposes.
The record includes comments to the proposed 2016 LVPA
Rule addressing the effect that the reduction in the size of the
LVPA would have on the American Samoan’s fishing practices:
By allowing large fishing vessels to invade the
LVPA, the Council’s proposed action threatens to
rob the people of these islands of the opportunity
to nurture and practice their culture, let alone
access the natural resources surrounding their
islands. The large long liners, with fishing
lines extending many miles present a real risk of
entanglement with fishing equipment of alia
fishermen. These vessels, with larger catching
capacity, could easily deplete the fishing stock;
and their presence in these waters will likely
discourage local fishermen from practicing
traditional fishing methods for fear of being run
over by the larger long liners.
[AR at E271-72 (the Governor’s Official Comment).]
[T]he influx of any, let alone 23 longline vessels
owned by persons who are not beneficiaries of the
[Deeds of Cession], will surely undermine the
treatied peoples’ property interests in the marine
waters and resources within the present LVCA-50
[sic], and create unbalanced competition that will
further threaten the collapse of the traditional
alia fishing community. . . .
[AR at E353 (page 4 of the Joint Resolution).]
In light of this and other similar evidence, this Court
FINDS that Plaintiff has demonstrated an injury-in-fact – the
loss of the American Samoan cultural fishing practice – that is
fairly traceable to the adoption of the 2016 LVPA Rule.
this Court FINDS that: the injury is concrete, particularized,
and sufficiently imminent for purposes of Article III standing;
and the imminent injury is likely to be redressed by a decision
in Plaintiff’s favor, because invalidating the 2016 LVPA Rule
would reinstate the LVPA established in the 2002 LVPA Rule.
Because this Court has found that Plaintiff has
demonstrated both a quasi-sovereign interest and all three
elements of Article III standing, this Court CONCLUDES that
Plaintiff has parens patriae standing to challenge the 2016 LVPA
Rule in the instant case.
This Court DENIES Defendants’ Counter-
Motion as to Defendants’ request for summary judgment on the
ground that Plaintiff lacks standing.
This Court now turns to the merits of Plaintiff’s
III. Count I
Count I alleges that the 2016 LVPA Rule is invalid
because NMFS failed to ensure that the rule was consistent with
the Deeds of Cession.
Paramountcy Doctrine, TSLA, and CZMA
At the outset, this Court acknowledges that Defendants
assert that the United States has authority over the waters at
issue in this case pursuant to the paramountcy doctrine, the
TSLA, and the CZMA.
This Court also recognizes that at least
some American Samoans have taken the position that American Samoa
owns those waters.
See, e.g., AR at E353 (Joint Resolution page
4) (asserting that the Deeds of Cession were “understood by the
original treaty signers, among other things, to include the
guaranteed right of continued ownership and unhindered access of
the treaty protected people to the vast marine waters ceded for
their exclusive benefit” (emphases added)).
However, the dispute
over the ownership of the waters is not before this Court in this
This case addresses only the validity of the 2016 LVPA
Rule, which reduced the LVPA established in the 2002 LVPA Rule at
approximately fifty nautical miles to twelve nautical miles.
issue before this Court in Count I is whether NMFS violated the
MSA by failing to ensure that the adoption of the 2016 LVPA Rule
was consistent with the Deeds of Cession.
This Court therefore
concludes that it does not need to address Defendants’ arguments
regarding the paramountcy doctrine, the TSLA, and the CZMA.
MSA - 16 U.S.C. § 1854(c)(7)
As previously stated, the MSA requires that any final
regulation promulgated “be consistent with the fishery management
plan, with the national standards and other provisions of this
chapter, and with any other applicable law.”
The MSA does not contain a definition of what is
considered “any other applicable law,” nor is this Court aware of
any case law addressing the issue.
The NMFS Operational
Guidelines for the Magnuson-Stevens Fishery Conservation and
Management Act Fishery Management Process (Sept. 30, 2015),
guidelines/index.html (“NMFS Operational Guidelines”), states:
Section 303(a)(1)(C) of the MSA requires federal
fishery management plans to be consistent with
other applicable laws. NMFS must also review
Council-recommended FMPs, amendments, and
regulations to determine whether they are
consistent with other applicable law. These other
laws impose additional procedural, substantive,
and timing requirements on the decision process.
The particular laws that apply to any given action
must be assessed on a case-by-case basis. This
section provides an overview of the other
applicable laws and executive orders that most
frequently apply, including but not limited to
Administrative Procedure Act
Coastal Zone Management Act
Endangered Species Act
Executive Orders 12630, 12866, 12898, 13089,
13132, 13158, 13175, 13272
Information Quality Act
Marine Mammal Protection Act
National Environmental Policy Act
National Marine Sanctuaries Act
Paperwork Reduction Act
Regulatory Flexibility Act[.]
NMFS Operational Guidelines, Appendix 2 (Description of the
Fishery Management Process) at 9-10 (emphasis added).
of Cession were accepted, ratified, and confirmed in 48 U.S.C.
Although they are not among the frequently applied
“other applicable law,” they are federal law and they constitute
“any other applicable law” for purposes of § 1854(c)(7) if they
imposed additional procedural or substantive requirements on the
rule-making process that culminated in the 2016 LVPA Rule.11
Defendants argue that the Deeds of Cession did not
impose additional requirements on the rule-making process at
issue in this case because the deeds do not address offshore
Defendants assert that the deeds are evidence
“Congress’ policy of respecting Samoan traditions concerning land
Hodel, 830 F.2d at 386 (emphasis added).
the D.C. Circuit’s opinion in Hodel and the underlying district
court order, 637 F. Supp. 1398 (D.D.C. 1986), appear to be the
only federal cases addressing the Deeds of Cession, these
decisions are not binding on this Court.
involved a dispute arising from the High Court of American
Samoa’s decision invalidating a 1953 deed issued when the
appellant purchased land in American Samoa.
830 F.2d at 376.
Only issues of land ownership were before the D.C. Circuit in
that case; the issue of whether the Deeds of Cession preserve
more than American Samoan “traditions concerning land ownership”
was not before the court.
Thus, Hodel does not support
Defendants’ position that the Deed of Cession only require the
United States to preserve American Samoan traditions concerning
Plaintiff’s challenge to the 2016 LVPA Rule does not
present timing issues.
The Cession of Tutuila and Aunu`u requires the United
States to “respect and protect the individual rights of all
people dwelling in Tutuila to their lands and other property in
[RJN, Attachment at 4, ¶ 2 (emphasis added).]
The use of the word “lands” and the word “property” indicates
that “property” is not limited to land/real property.
paragraph 2 goes on to state that, if the United States
government “require[s] any land or any other thing for Government
uses, the Government may take the same upon payment of a fair
consideration for the land, or other thing, to those who may be
deprived of their property on account of the desire of the
[Id. (emphases added).]
The use of the word
“thing” as distinct from “property” indicates that “property” is
not limited to tangible property – such as, for example, a right
of access necessary to engage in certain cultural practices.
The Cession of Manu`a Islands expressly recognizes “the
rights of the Chiefs in each village and of all people concerning
their property according to their customs.”
[Id. at 6 (emphasis
The Cession of Manu`a Islands does not include the same
references to lands, property, and things, but it is clear from
the document as a whole that it is intended to be read together
with, and consistently with, the Cession of Tutuila and Aunu`u.12
The Cession of Manu`a Islands describes inter alia, the
This Court therefore concludes that the term “property” in the
Cession of Manu`a Islands has the same meaning as the term
“property” in the Cession of Tutuila and Aunu`u.
reading the deeds together, the “individual rights of all people
dwelling in Tutuila to their lands and other property” referred
to in the Cession of Tutuila and Aunu`u includes customary uses
of the people’s property referred to in the Cession of Manu`a
It is true that the Deeds of Cession do not expressly
state that “property” includes offshore fishery resources, nor do
the deeds identify fishing as one of the protected customary
However, those facts are not dispositive.
Parravano v. Babbitt, the Ninth Circuit addressed the following
Cession of Tutuila and Aunu`u and states:
And Whereas, Tuimanu`a and his chiefs, being
content and satisfied with the justice, fairness,
and wisdom of the government as hitherto
administered by the several Commandants of the
United States Naval Station, Tutuila, and the
officials appointed to act with the Commandant,
are desirous of placing the Islands of Manu`a
hereinafter described under the full and complete
sovereignty of the United States of America to
enable said Islands, with Tutuila and Aunuu, to
become a part of the territory of said United
[RJN, Attachment at 6.]
Under the Magnuson Act, the Secretary of
Commerce may issue emergency regulations to
achieve consistency with the national standards
set forth in the Act and “any other applicable
law.” 16 U.S.C. §§ 1853(a)(1)(C), 1854(a)(1)(B).
Indian fishing rights that exist under federal law
may constitute “any other applicable law.”
Washington State Charterboat Ass’n v. Baldrige,
702 F.2d 820, 823 (9th Cir. 1983), cert. denied,
464 U.S. 1053, 104 S. Ct. 736, 79 L. Ed. 2d 194
(1984) (Northwest Indian treaty fishing rights
constitute “other applicable law” under Magnuson
Act). Therefore, the question before this court
is whether the Hoopa Valley and Yurok Tribes
retain federally reserved fishing rights that
constitute “any other applicable law” within the
meaning of the Magnuson Act. . . .
70 F.3d 539, 544 (9th Cir. 1995).
The Ninth Circuit ultimately
held that the tribes did have fishing rights which constituted
“any other applicable law,” even though the executive orders
establishing the tribes’ reservation did not expressly identify
[T]he 1876 and 1891 executive orders first created
and then extended a reservation “for Indian
purposes” along the main course of the Klamath
River. Donnelly [v. United States], 228 U.S.
[243,] 253, 33 S. Ct. [449,] 451 [(1913)]. We
have never encountered difficulty in inferring
that the Tribes’ traditional salmon fishing was
necessarily included as one of those “purposes.”
See United States v. Wilson, 611 F. Supp. 813,
817–18 (N.D. Cal. 1985), rev’d on other grounds
sub. nom., United States v. Eberhardt, 789 F.2d.
1354 (9th Cir. 1986). Our interpretation accords
with the general understanding that hunting and
fishing rights arise by implication when a
reservation is set aside for Indian purposes. See
Menominee Tribe v. United States, 391 U.S. 404,
406, 88 S. Ct. 1705, 1707, 20 L. Ed. 2d 697
(1968); Pacific Coast [Fed’n of Fishermen’s Ass’n,
Inc. v. Sec’y of Commerce], 494 F. Supp. [626,]
632 [(N.D. Cal. 1980)]. Thus, we reject
Parravano’s novel theory that ambiguity in the
phrase “for Indian purposes” should be resolved
against the Tribes.
Id. at 545–46.
The cited portion of Menominee Tribe stated:
Nothing was said in the 1854 treaty about hunting
and fishing rights. Yet we agree with the Court
of Claims that the language “to be held as Indian
lands are held” includes the right to fish and to
hunt. The record shows that the lands covered by
the Wolf River Treaty of 1854 were selected
precisely because they had an abundance of game.
See Menominee Tribe of Indians v. United States,
95 Ct. Cl. 232, 240—241 (1941). The essence of
the Treaty of Wolf River was that the Indians were
authorized to maintain on the new lands ceded to
them as a reservation their way of life which
included hunting and fishing.
391 U.S. at 406 (footnotes omitted).
Defendants are correct when they emphasize that
American Samoa is a territory, not a Native American tribe, but
Plaintiff does not rely on Parravano because Plaintiff is
asserting that the federal courts should treat American Samoa –
or United States territories in general – in the same manner that
they treat Native American tribes.
Plaintiff merely relies on
Parravano for the proposition that cultural practices can be
protected by inference.
Like the executive orders that
established the reservation in Parravano and the treaty granting
the reservation in Menominee Tribe, neither of which expressly
referred to the specific traditional practice at issue in the
case, the Deeds of Cession preserved the American Samoans’ right
to use their “property” to continue their customary practices,
but the deeds do not specifically identify those customary
The American Samoans are an island people and, as
previously stated, their history of fishing practices goes back
thousands of years, i.e. their fishing customs were wellestablished at the time of cession.
Pursuant to Parravano, this
Court CONCLUDES that the American Samoans’ right to use their
“property” to continue their customary fishing practices is
reserved by implication in the Deeds of Cession.
Because the Deeds of Cession require the United States
to respect the American Samoans’ customary fishing practices,
this Court CONCLUDES that the deeds imposed additional procedural
or substantive requirements on the rule-making process that
culminated in the 2016 LVPA Rule.
Therefore, the Deeds of
Cession constitute “any other applicable law,” which the 2016
LVPA Rule must be consistent with pursuant to § 1854(c)(7).
Defendants argue that NMFS did consider the American
Samoans’ interest in cultural fishing practices prior to adopting
the 2016 LVPA Rule.
Defendants emphasize that NMFS considered
the impact on American Samoan fishing, and both the 2016 LVPA
Rule and the 2016 LVPA EA state that NMFS will “annually review
the effects of the 2016 LVPA Rule on catch rates, small vessel
participation, and sustainable fisheries development
[Counter-Motion at 28 (citing AR at A1, 125-35).]
However, the consideration of American Samoan cultural fishing
practices in general is not enough.
This Court has concluded
that the Deeds of Cession require the United States to preserve
American Samoan cultural fishing practices and that the deeds
constitute “any other applicable law” for purposes of the MSA.
Thus, the 2016 LVPA Rule should not have been adopted without a
determination that the proposed rule was consistent with, inter
alia, the Deeds of Cession.
Based upon Defendants’ positions in this case, it is
clear that NMFS did not consider whether the proposed rule that
eventually became the 2016 LVPA Rule was consistent with the
Deeds of Cession.
Because NMFS failed to consider whether the
proposed rule was consistent with the Deeds of Cession, it
“entirely failed to consider an important aspect of the problem,”
and therefore the adoption of the 2016 LVPA Rule was arbitrary
See Cascadia Wetlands, 801 F.3d at 1110.
Court CONCLUDES that the 2016 LVPA Rule is invalid and GRANTS the
Motion as to Plaintiff’s request for summary judgment on Count I.
In light of this Court’s ruling, this Court DENIES the CounterMotion as to Defendants’ request for summary judgment on Count I.
This Court does not need to address Defendants’ argument
that the changed circumstances between 2002 and 2016 warranted
the reduction in the size of the LVPA. Even accepting
Defendants’ characterization of the evidence before the NMFS, it
was still required to consider that evidence in light of the
United States’ obligation under the Deeds of Cession to protect
American Samoan cultural fishing practices.
Because this Court has ruled in Plaintiff’s favor as to
Count I and concluded that the 2016 LVPA Rule is invalid, this
Court does not need to reach the merits of Counts II, III, and
IV, all of which are essentially alternate theories of why the
2016 LVPA Rule is invalid.
This Court therefore DISMISSES
Counts II, III, and IV as MOOT, and DENIES the remaining portions
of Plaintiff’s Motion and Defendants’ Counter-Motion.14
On the basis of the foregoing, Plaintiff’s Motion for
Summary Judgment, filed July 25, 2016, is HEREBY GRANTED IN PART
AND DENIED IN PART.
Specifically, the Court GRANTS Plaintiff’s
Motion as to Count I, insofar as this Court ORDERS that the Final
rule regarding Pacific Island Pelagic Fisheries; Exemption for
Large U.S. Longline Vessels to Fish in Portions of the American
Samoa Large Vessel Prohibited Area, 81 Fed. Reg. 5619 (Feb. 3,
2016), be VACATED AND SET ASIDE.
Further, the remaining claims, Counts II, III, and IV,
are HEREBY DISMISSED AS MOOT.
Plaintiff’s Motion is therefore
DENIED AS MOOT as to Plaintiff’s request for summary judgment on
Counts II, III, and IV.
Court does not need
summary judgment on
Defendants’ Counter-Motion for Summary
Court has dismissed Count IV as moot, this
to address Defendants’ argument that
or waived Count IV by failing to move for
Judgment is HEREBY DENIED in its entirety.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 20, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
TERRITORY OF AMERICAN SAMOA VS. NATIONAL MARINE FISHERIES
SERVICE, ET AL; CIVIL 16-00095 LEK-KJM; ORDER GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
DENYING DEFENDANTS’ COUNTER-MOTION FOR SUMMARY JUDGMENT
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