New & Noteworthy: American Samoa Boundaries, Wespac’s Wish List

A Loss for American Samoa: The 9th Circuit Court of Appeals has overturned a lower court decision, effectively giving longline fishing vessels the right to fish as close as 12 miles from the territory’s coast. The decision is a blow to the American Samoa government, which had sued the National Marine Fisheries Service and Kitty Simonds, executive director of the Western Pacific Fishery Management Council, over the decision of NMFS in 2016 to shrink the zone in which longline fishing was prohibited to 12 miles from 50, the limit that had been in effect since 2002.

After that, the government of American Samoa sued, arguing that NMFS had not considered the 1900 and 1904 Deeds of Cession that protected the cultural fishing rights of its citizens.

In 2017, U.S. District Judge Leslie E. Kobayashi found in favor of the territorial claim and declared the rule to be invalid.

At the time the council recommended opening the closed area, it argued that the waters from 12 out to 50 miles were not being used by the smaller alia catamaran fishing vessels that local fishermen had developed.

On September 25, the three-judge appellate panel issued its ruling, stating that it really didn’t matter that NMFS ignored the cessions, since NMFS did consider the impact of the expanded longline fishing area on the alia vessels, “and rationally determined the effects were not significant.”

Many of the small alias were damaged in the tsunami that hit the main island in 2009 and not repaired for years.

Last month, at the most recent meeting of the council, a member from American Samoa noted that many of the alia boats had been damaged and out of service for the last few years. The cause was said to be the use of a paint by a boatyard that corroded the hulls of the small boats, rendering them inoperable.

Patricia Tummons

Wespac Wish List: Earlier this year, President Donald Trump issued executive orders (13921 and 13924) aimed at promoting seafood competitiveness and economic growth and providing regulatory relief to support economic recovery. NOAA Fisheries gave the Western Pacific Fishery Management Council (Wespac) until November to submit a list of actions that it believed would ease burdens on domestic fishing in the region.

The council finalized its list at its meeting last month. Lifting fishing bans in the Pacific island marine monuments topped the list. Removing the longline vessel protected area in American Samoa was also considered.

Back in June, Mike Tosatto, regional administrator for the National Marine Fisheries Services’ Pacific Islands Regional Office, warned the council that including actions that would require statutory changes would probably not be supported.

Even so, the council recommended that NMFS work with the administration and Congress to exempt Pacific Islands fishermen from the Billfish Conservation Act and to amend the Endangered Species Act to reduce the ability of citizens to sue NMFS.

The council also recommended that the status of certain listed species that interact with the fisheries (i.e., green sea turtles and loggerheads) be revised “where the populations are increasing and threats do not pose an immediate danger of extinction.”

Tosatto suggested that the council’s rationale for that recommendation was misguided. He noted that when NMFS designated distinct population segments (DPS) of the green sea turtle years ago — which resulted in the Hawai‘i population being listed as threatened and those in American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands being listed as endangered — “there was … never going to be a delisting situation. It was whether there was a DPS.”

Comparing delisting with establishing a DPS is like comparing apples and oranges, he suggested. “You seem to be mixing that fruit basket,” he said, adding that when evaluating whether to delist a species, “we can’t consider the consultation burden when we’re making those determinations. It has to be on the biology of the species.”

Teresa Dawson

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