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Territory of American Samoa v. National Marine Fisheries Service

United States District Court, D. Hawaii

March 20, 2017

NATIONAL MARINE FISHERIES SERVICE; UNITED STATES DEPARTMENT OF COMMERCE; NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION; PENNY PRITZKER, Secretary of Commerce; KITTY SIMONDS, Executive Director of Western Pacific Regional Fishery Management Council; EILEEN SOBECK, Assistant Administrator for Fisheries, MICHAEL D. TOSATTO, Regional Administrator for NOAA's National Marine Fisheries Service Pacific Islands Regional Office, Defendants.


          Leslie E. Kobayashi United States District Judge.

         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 (“Counter-Motion”). [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 moot.


         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 LVPA Rule”). Plaintiff argues that the rule violates the deeds of cession of American Samoa, which constitutes a violation of the MSA. [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 ¶¶ 49-56;] 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 appropriate relief. [Id. at pgs. 20-21.]

         Defendants filed their answer to the Amended Complaint on April 28, 2016. [Dkt. no. 18.]

         I. Legal and Historical Background

         A. MSA

         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[1] ¶ 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. § 1856(a)(1).
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. 2448 (2016). The Council is the regional council for Hawai`i, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands. 16 U.S.C. § 1852(a)(1)(H). The Council's 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. See §§ 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 regulations.
(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. 16 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.

         B. Cession

         American Samoa is an unincorporated and unorganized United States territory. [Complaint at ¶ 8; Answer at ¶ 8 (admitting those portions of Plaintiff's ¶ 8).] The parties 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 Island.” [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 States. [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”). [Dkt. no. 27.] Defendants ask this Court to take judicial notice of the contents of the Convention of 1899[2] and the Deeds of Cession, which they obtained from the American Samoa Bar Association website. [R]N 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 part:

         Now know Ye:

1. 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 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”.
2. 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.

[R]N, Attachment at 4.] The Cession of Manu`a Islands states, in pertinent part:

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 by us.
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 said Government.
(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, 1904, respectively.

§ 1661(a).

         C. 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 Rule”). 67 Fed. Reg. 4369.[3] It states:

NMFS issues this final rule to prohibit certain vessels from fishing for Pacific pelagic management unit species (PMUS)[4] 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.[5] 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.
. . . .
. . . [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 culture.

67 Fed. Reg. at 4369.

         D. 2016 LVPA Rule

         On August 25, 2015, NMFS published the proposed rule and a draft environmental assessment for public comment.[6] 80 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 organizations.” 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). The 2016 LVPA Rule was effective as of January 29, 2016. Id. 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.” [Complaint at ¶ 28.] Plaintiff also alleges that the 2016 LVPA Rule “de-incentivizes inactive or aspiring local alias that want to enter the fishery. This new rule will also lead to overcrowding of the fishery by large vessels.” [Id. at ΒΆ 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 ...

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