Dolphin-safe label victory

by Mark J. Palmer

Earth Island Journal, Winter 2001-2002

Last July, a three-judge panel for the federal Ninth Circuit Court of Appeals unanimously upheld Judge Thelton Henderson's decision in "Brower vs. Daley," Earth Island Institute's landmark tuna-labeling lawsuit.

"This is a tremendous victory for dolphins and for US consumers," said Mark J. Palmer, Assistant Director of Earth Island Institute's International Marine Mammal Project (IMMP). "It is also a serious defeat for the US State Department in their efforts to mislead consumers on behalf of a handful of Mexican tuna millionaires in the name of free trade."

Since 1990, the "dolphin-safe" label has assured shoppers that their canned tuna was caught without any chasing and netting of dolphins But in 1999, former Secretary of Commerce Richard Daley issued a ruling that would have weakened the "dolphin-safe" standards. Under the Daley dictate tuna fishers could use the "dolphin-safe" label even if they chased, harassed, netted injured and even killed dolphins in the pursuit of tuna - just so long as no onboard observer actually reported seeing dolphins killed or "seriously injured."

Tuna boats in the Eastern Tropical Pacific (ETP) target dolphins because tuna often swim below dolphins. Some dolphin schools are chased and netted as often as three times in one day, causing stress that can harm dolphin health and reproduction. Netted dolphins that die from injuries after release are not counted by the onboard observer.

The appeals panel ruled that Daley's fiat to weaken the "dolphin-safe" standards was "contrary to law and an abuse of his discretion [since] all of the evidence indicated that dolphins were adversely impacted by the fishery." Federal scientists have determined that dolphin populations in the Eastern Tropical Pacific are not recovering as expected, even with the dramatically lower reported kills of recent years.

The successful pro-bono lawsuit, filed by attorneys Josh Floum and Ariela St. Pierre of Legal Strategies Group of Emeryville, California, contended that Daley's decision illegally ignored research supplied by the Commerce Department's own scientists. Earth Island and other groups, which developed the Dolphin-Safe label, charged that the Clinton/Gore Administration weakened US dolphin protection laws to accommodate tuna millionaires in Mexico and other countries in the name of free trade.

It is unclear how the new Bush Administration will handle this issue. Legal experts believe the ruling is unlikely to be overturned on appeal because the court made it clear that the Bush administration must base its final decision on science, not political expedience or free trade. A final decision by Commerce Secretary Donald Evans is set for 2002.

Earth Island Institute, Earth Island Founder David R Brower and nine other environmental groups filed the lawsuit in August 2000. Additional plaintiffs included biologist Samuel LaBudde, Humane Society of the United States, American Society for the Prevention of Cruelty to Animals, Defenders of Wildlife, International Wildlife Coalition, Animal Welfare Institute, Society for Animal Protective Legislation, Animal Fund, Oceanic Society and Environmental Solutions International.

More than 7 million dolphins have drowned in tuna nets over the past four decades. Since the advent of the "dolphin-safe" tuna program in 1990, dolphin deaths have decreased by 98 percent in the ETP

"Dave Brower fought all his life for the protection of wild animals and wild places," noted Palmer. "We are proud that his legacy lives on in this humane and powerful court decision for the dolphins."

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