Territory of American Samoa v. National Marine Fisheries Service

Filing 74

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS re 28 , 73 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/8/2022. There being no remaining claims in this case, the Clerk's Office is DIRECTED to immediately enter final judgment in Defendants' favor as to all of Plaintiff's claims, pursuant to this Order, and close this case. (eta)

Case 1:16-cv-00095-LEK-KJM Document 74 Filed 12/08/22 Page 1 of 4

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TERRITORY OF AMERICAN SAMOA,

)
)
Plaintiff,
)
)
vs.
)
)
NATIONAL MARINE FISHERIES
)
SERVICE; UNITED STATES
)
DEPARTMENT OF COMMERCE;
)
NATIONAL OCEANIC AND
)
ATMOSPHERIC ADMINISTRATION;
)
WILBUR L. ROSS, Secretary of )
Commerce; KITTY SIMONDS,
)
Executive Director of Western )
Pacific Regional Fishery
)
Management Council; SAMUEL D. )
RAUCH, Acting Assistant
)
Administrator of Fisheries,
)
MICHAEL D. TOSATTO, Regional )
Administrator for NOAA=s
)
National Marine Fisheries
)
Service Pacific Islands
)
Regional Office,
)
)
Defendants.
)
_____________________________ )

CIVIL 16-00095 LEK-KJM

ORDER GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANTS
On March 20, 2017, this Court issued an Order Granting
in Part and Denying in Part Plaintiff’s Motion for Summary
Judgment and Denying Defendants’ Counter-Motion for Summary
Judgment (“3/20/17 Order”).

[Dkt. no. 45.1]

This Court granted

summary judgment in favor of Plaintiff Territory of American

1

The 3/20/17 Order is also available at 2017 WL 1073348.

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Samoa (“Plaintiff”) as to Count I of its Complaint, [filed
3/4/16 (dkt. no. 1),] which alleged 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)
(“2016 LVPA Rule”), violated the Magnuson-Stevens Fishery
Conservation and Management Act (“MSA”) because the rule was not
consistent with American Samoa’s deeds of cession.

See 3/20/17

Order, 2017 WL 1073348, at *1 (describing Plaintiff’s claims);
id. at *17 (granting summary judgment in favor of Plaintiff as
to Count I).

This Court concluded that the adoption of the 2016

LVPA Rule was arbitrary and capricious, and therefore the rule
was invalid.

Further, in light of that ruling, this Court

dismissed Plaintiff’s other three claims as moot.2

See 3/20/17

Order, 2017 WL 1073348, at *17.
Final judgment was entered pursuant to the 3/20/17
Order.

See Judgment in a Civil Case, filed 4/11/17 (dkt.

no. 48).

Defendants National Marine Fisheries Service (“NMFS”);

United States Department of Commerce (“DOC”); National Oceanic

The other claims asserted in the Complaint are: breach of
fiduciary duty, in violation of the Administrative Procedure Act
(“APA”), § 706(2)(a) (“Count II”); 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”); and arbitrary and
capricious action, in violation of APA § 706(2)(a) (“Count IV”).
2

2

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and Atmospheric Administration (“NOAA”); Wilbur L. Ross, in his
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”);
Samuel D. Rauch III, in his official capacity as Acting
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 a

motion for reconsideration and for

amendment of the judgment, but the motion was denied, and
Defendants appealed.

See Order Denying Defendants’ Motion for

Reconsideration and to Amend the Court’s Judgment (Dkt. No. 48)
Pursuant to Local Rule 60.1 and Federal Rule of Civil
Procedure 59(e), filed 8/10/17 (dkt. no. 60); Defendants’ Notice
of Appeal and Representation Statement, filed 10/6/17 (dkt.
no. 62).
The Ninth Circuit Court of Appeals reversed the
3/20/17 Order in a memorandum disposition, holding that the 2016
LVPA Rule was not arbitrary and capricious.

See Territory of

Am. Samoa v. Nat’l Marine Fisheries Serv., 822 F. App’x 650, 652
(9th Cir. 2020), cert. denied, 141 S. Ct. 2797 (2021).3

Based

The Ninth Circuit’s Memorandum is also available at docket
number 70, and the Ninth Circuit’s November 17, 2020 Mandate is
available at docket number 71.
3

3

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upon the Ninth Circuit’s analysis and holding, summary judgment
must be GRANTED in favor of Defendants as to Count I.

Further,

although the 3/20/17 Order did not contain a substantive
analysis of Counts II, III, and IV, based upon the Ninth
Circuit’s analysis of Count I, summary judgment must also be
GRANTED in favor of Defendants as to Counts II, III, and IV.
There being no remaining claims in this case, the
Clerk’s Office is DIRECTED to immediately enter final judgment
in Defendants’ favor as to all of Plaintiff’s claims, pursuant
to this Order, and close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAI`I, December 8, 2022.

TERRITORY OF AMERICAN SAMOA V. NATIONAL MARINE FISHERIES
SERVICE, ET AL., CV 16-00095 LEK-KJM; ORDER GRANTING SUMMARY
JUDGMENT IN FAVOR OF DEFENDANTS
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