International Marine Mammal Project
July 23, 2001
Lawsuit Victory in
Victory for Dolphins and American
"Dolphin Safe" Tuna Label Case
(San Francisco) The 9th Circuit
Court of Appeals has, in a unanimous decision by the three-judge panel,
upheld Judge Thelton Henderson's decision in "Brower v. Daley", which
maintains the current strong standards for the "Dolphin Safe" label on
tuna cans - no chasing and netting of dolphins.
"This is a tremendous victory
for dolphins and for U.S. consumers," stated Mark J. Palmer, Assistant
Director of Earth Island Institute's International Marine Mammal Project,
one of the plaintiffs in the case. "It is also a serious defeat for the
U.S. State Department in their efforts to mislead consumers on behalf
of a handful of Mexican tuna millionaires in the name of free trade."
The finding by Secretary of
Commerce Richard Daley in 1999 to weaken the "dolphin safe" label standards
was "contrary to law and an abuse of his discretion," according to the
9th Circuit decision. "…(A)ll of the evidence indicated that dolphins
were adversely impacted by the fishery."
The successful lawsuit, filed
by Josh Floum, Esq., and Ariela St. Pierre, Esq., of Legal Strategies
Group of Emeryville, CA, contended that the U.S. Commerce Secretary's
decision, which claimed that the chasing and netting of millions of dolphins
in tuna nets is not causing significant adverse impacts on depleted dolphin
populations, was arbitrary and capricious, and illegally ignored research
supplied by the Commerce Department's own scientists. Earth Island and
other groups, who developed the "Dolphin Safe" label in 1990, charged
that the Clinton/Gore Administration's weakening of U.S. dolphin protection
laws to accommodate tuna millionaires in Mexico and other countries in
the name of free trade would result in more dolphin deaths.
It is unclear how the new
Bush Administration will handle this issue in the future.
Earth Island Institute, nine
other environmental groups, and 87-year-old environmental activist David
R. Brower (who died last fall) filed the lawsuit last August in U.S. Federal
District Court in August 1999 to overturn the decision by the government
to weaken the "Dolphin Safe" label on American tuna cans. Additional plaintiffs
included biologist and dolphin activist 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.
Before the illegal finding
by the Commerce Secretary, the "dolphin safe" label could only be used
for tuna caught without any chasing and netting of dolphins. Tuna fishermen
in the Eastern Tropical Pacific (ETP) target dolphins because tuna often
swim below dolphins. More than 7 million dolphins have been drowned in
tuna nets over the past 4 decades. But since 1990 and the advent of the
"dolphin safe" tuna program, dolphin deaths have decreased by 98% in the
However, on April 29th, 1999,
U.S. Commerce Secretary William Daley ruled, contrary to all available
scientific information, that chasing and netting dolphins by the tuna
industry does NOT cause significant adverse impacts. This action automatically
weakened the standards by which tuna is judged to be "dolphin safe", instead
allowing chasing, harassing, netting, injuring, and even killing of dolphins
when catching tuna, so long as an on-board observer claims he did not
see dolphins killed outright or "seriously injured."
Federal scientists have determined
that dolphin populations in the ETP are not recovering as expected, even
with the dramatically lower reported kills of recent years. Harassment
of dolphins by tuna fishermen and problems arising from the consequent
physiological stress (some dolphin schools are chased and netted as often
as three times in one day) are likely factors which cause harm to dolphin
health and reproduction. Many dolphins suffer injuries in the nets and
die after release, but are not counted by the on-board observer. Mothers
are separated from calves, and undercounting may be occurring on board
some Mexican tunaboats.
"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!"
Earth Island Institute is
a nonprofit educational organization dedicated to protecting the diversity
of life on Earth. The International Marine Mammal Project works to protect
whales, dolphins and other marine mammals around the world.