New & Noteworthy: American Samoa, Waiea Tract, Correction

posted in: October 2017 | 0

American Samoa Wins: The government of American Samoa has prevailed in a federal court challenge to the National Marine Fisheries Service and Western Pacific Fishery Management Council executive director Kitty Simonds, among others. The case involved the decision by the council, endorsed by NMFS, to open up nearshore waters of the territory to fishing by longline vessels.

The waters around the territory out to 50 nautical miles had been closed to the larger fishing vessels since 2002, in an effort to reduce any competition and conflict between the smaller fishing boats owned by local residents and the much larger vessels.

But when the longliners experienced reduced catches, increased fuel costs, and overall lower revenues, in 2014, the council voted to open up most of the closed area to the larger vessels. NMFS published a final rule in 2016 that effectuated the action.

At once, the territory sued, claiming that NMFS did not consider the 1900 and 1904 Deeds of Cession that protected the cultural fishing rights of the people of American Samoa.

In March of this year, U.S. District Judge Leslie E. Kobayashi found in favor of American Samoa’s claim, declared the rule to be invalid and, what’s more, found that NMFS’ adoption of it was “arbitrary and capricious.” NMFS asked the judge to reconsider, but the court denied the motion on August 10.

On September 20, NMFS published notice in the Federal Register, vacating the 2016 rule in accordance with the judge’s order. (For details, see the “New & Noteworthy” item in our June 2016 issue.)

‘Futless’: That’s how Board of Land and Natural Resources member Chris Yuen described his mood last month when the Department of Land and Natural Resources’ Land Division requested, yet again, that the board renew a revocable permit (RP) for an area known as the Waiea Tract to McCandless Ranch for pasture use on Hawai‘i island.

Last year, when the board faced intense media scrutiny for annually renewing revocable permits — for decades, in some cases — without really evaluating them, it established a task force to examine the problem and has taken various steps to do a better job. But in the case of the McCandless permit, it seems even permits that board members have repeatedly scrutinized remain largely unchanged.

The 1,258-acres covered by the permit was “high quality native forest” that is not supposed to be grazed, Yuen said. He added that he had raised the same point when the division brought the permit to the board for renewal last year, and his concerns date back to when he served on the board in the 1990s.

“I made a motion and it passed, this would not be for pasture use. … It was supposed to be converted to an RP for access only. I was disappointed and surprised when I come back on the board and it’s still for pasture use,” he told division administrator Russell Tsuji. Tsuji noted that even though the permit title indicated it was for pasture use, the permit itself states it’s for access only.

Even so, Yuen pointed out the division’s own spreadsheet states the RP is “to be converted to access only or an access easement.”

“I’m huhu this can’t get changed in all these years… I’m the one that’s asking for it,” he said.

The board chose to withdraw the permit from the list of others to be renewed.

A clarification and a correction: In our September cover story, “Arbiter in Maui Water Case Gives Weight to A&B’s Tentaiive Diversified Ag Plan,” we stated that the contested case hearing officer in a matter before the Commission on Water Resource Management had found that Hawaiian Commercial & Sugar Co.’s projected water uses for its Central Maui fields were “reasonable and beneficial.” Although his proposed decision suggested that’s what he meant to do, and at least one attorney for a party to the case seemed to agree that he had done that, attorneys with the Native Hawaiian Legal Corporation pointed out in recent case filings that he did not actually use the words “reasonable and beneficial” — a legal standard for water uses — in describing HC&S’s proposals, as he did in a previous iteration of his recommendations.

We also mistakenly included an ‘okina in Aupuni (as in Na Moku Aupuni O Ko‘olau Hui, the name of the petitioner in this case). We sincerely regret the error.

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