False Claims About H.R.2823

Center for Marine Conservation, Environmental Defense Fund, Greenpeace, National Wildlife Federation, and World Wildlife Fund have jointly endorsed H.R.2823 and S.1420, the Dolphin Death Act sponsored by Mexico and other foreign tuna fishing nations, the anti-environmental "Wise Use Movement", and the Clinton Administration.

These five groups recently prepared and circulated to Congress a document, "Green Points in Support of H.R.2823." Many of the statements in this document are false, misleading, and require clarification. This response was prepared by Earth Island Institute and the Dolphin Safe/Fair Trade Coalition, consisting of over 85 environmental, trade, animal welfare, and labor organizations opposing H.R.2823 and S.1420. The full text of "Green Points" in italics is followed by our critique in bold-faced type:

"Green" Points in Support of H.R.2823

From a conservation and environmental perspective, H.R.2823 (the International Dolphin Conservation Program Act) merits full House passage because (not prioritized):

1. It's Better for Dolphins:

Locks into place binding international legal protections for dolphins in the Eastern Tropical Pacific (ETP) Ocean. The current ETP dolphin protection is entirely voluntary, based on the 1992 "La Jolla" program. In October 1995, all of the ETP fishing nations signed the "Panama Declaration." That Declaration strengthens further the "La Jolla" program, and sets in motion a process to make the program legally binding, contingent on changes in U.S. law that are part and parcel of H.R.2823's reforms, including observers and other monitoring, verification and tracking of catch, research and enforcement.

FACT: The "Panama Declaration," adopted in Panama by fishing nations, is not legally binding. It has no more force of law than the earlier "La Jolla" program, which the five organizations criticize for being "voluntary". The Panama Declaration was negotiated in secret meetings and signed by low-level bureaucrats representing 13 countries which fish in the ETP. Nations, in signing the Panama Declaration, agreed to negotiate in the future ("...the Governments meeting in Panama...announce their intention to formalize...the La Jolla Agreement as a binding legal instrument which shall be open to all nations..." - Panama Declaration, paragraph 2, line 1, emphasis added), but no such negotiations have ever taken place.

H.R.2823 and S.1420, if approved by Congress, would cancel out U.S. dolphin protection laws (including lifting the embargoes against import and sale of dolphin-deadly tuna in the U.S., weakening the definition of "dolphin safe" tuna to allow chase, injury and capture of dolphins despite dolphin losses, allowing U.S. tuna fishermen to resume killing dolphins, etc.) before a "binding legal agreement" has even been negotiated, much less approved.

However, even if a "binding legal agreement" is completed, the Panama Declaration ensures that it will never be enforced. "Commit in the exercise of their national sovereignty to enact and enforce this instrument through domestic legislation and/or regulation" (Panama Declaration, paragraph 6, emphasis added). The government of Mexico has never imposed a single fine or suspended a tunaboat captain despite hundreds of recommendations from the Inter-American Tropical Tuna Commission (IATTC) to do so; in fact no nation has done so in the entire history of the IATTC, which unlike the Panama Declaration, was negotiated as an international treaty in 1950.

The ETP tuna fishery already has 100% on-board monitoring, a system for verification and tracking of catch in place, etc. The claim that the new law is needed to allow for an observer program and for tracking purposes is nonsense. By contrast, the U.S. National Marine Fisheries Service (NMFS) has acknowledged that the Panama Declaration will make all of these activities harder than under current law, because tuna caught by killing dolphins will require separate handling throughout the complex process of fishing, shipping and canning, allowing countless opportunities for mistakes and outright fraud.

Allows dolphin stocks to recover. The remarkable success of the MMPA and the voluntary La Jolla agreement have resulted in an almost 99% reduction in dolphin mortality in the ETP. Up until the early 1990's, though, many dolphins species in the ETP suffered annual mortality rates high enough to hamper or retard their recovery. But now, those stocks are stable, with mortality rates (for all stocks) below 0.2% of the population abundance - a level more than four times lower than that recommended by the National Research Council to allow recovery. Moreover, H.R.2823 requires that these annual mortality rates be further reduced to less than 0.1% of the population abundance, with the goal of eliminating mortality entirely. These new levels of protection for dolphins have been endorsed by leading scientists.

FACT: The five organizations are supporting a dangerous weakening of the Marine Mammal Protection Act (MMPA). Current U.S. law prohibits any killing of dolphin species in the ETP that are listed as "depleted" by the NMFS. The northeast offshore spotted dolphin and the eastern spinner dolphin stocks are seriously depleted, and these five organizations profess to be especially concerned about depleted marine mammal populations, yet support allowing U.S. and foreign vessels to legally kill them. Further, the five groups -- despite their professed adherence to the precautionary principle -- now support an intensification of the chasing and capturing of dolphins without any scientific evidence to suggest it is safe for dolphins.

There are numerous impacts from tuna purse seine nets on dolphins. The chase by helicopters and speed boats, capture in purse seine nets, and release of dolphins is a traumatic, hours-long process, and some schools of dolphins may be chased and caught as often as three times in a single day. Young dolphins are separated from their mothers; pregnant dolphins spontaneously abort fetuses. Flippers are torn and beaks broken by the net mesh in serious injuries that result in death after the vessel and observer are long gone. Sea conditions, weather and darkness prevent the ship-bound observers from seeing all the dead dolphins in the mile-long nets. Dolphins die later after being released alive due to internal injuries and physiological stress. Most ominously, dolphin stocks in the ETP have not increased despite the extremely low observed mortality -- some of the most severely depleted stocks are still declining. Any setting of nets on these depleted stocks of dolphins is currently prohibited for solid scientific reasons, yet H.R.2823 and S.1420 encourages further setting of nets on depleted dolphin populations, even to the extent of letting such tuna be labeled "dolphin safe."

As noted above, there will be no enforcement for dolphin-killing fishermen who exceed the kill limits. The Panama Declaration and H.R.2823/S.1420 contain absolutely no provisions to mandate any reduction in dolphin kill or to ever phase it to zero mortality.

Claims that "leading scientists" endorse the Panama Declaration and H.R.2823/S.1420 are false. Dr. Ken Norris, the dean of American dolphin researchers, has been touted as a supporter of the Panama Declaration and legislation. In fact, Dr. Norris told Earth Island that he had never seen the letter which includes his signature, never read the Panama Declaration, and never read the legislation, H.R.2823 and S.1420, which he supposedly endorses. Dr. Norris was astounded that his name had been submitted to Congress by the five organizations in support of positions which they had never revealed to him. Other scientists report similar experiences. Many of the alleged supporters are aquarium scientists with little or no experience with wild dolphins and the tuna/dolphin issue.

In contrast, the Dolphin Death Act has been opposed in written statements prepared by leading experts on dolphins and the tuna/dolphin problem such as Dr. Roger Payne, Dr. Albert Myrick, Dr. Ken Marten, Dr. John Hall, and Jean-Michel Cousteau. (Copies available from Earth Island Institute.)

Addresses effectively the issue of "chase and encirclement" of dolphins, establishing a process for investigation and further action, as merited, regarding the health-related impacts of capture stress. Concerns have been raised that the chase and encirclement of dolphins causes harm and stress levels that can impede dolphin reproduction or result in dolphin deaths. While dolphins that are chased and encircled probably experience some level of stress, there is no conclusive scientific evidence that chase and encirclement reduces reproductive capacity, causes dolphins to die after release, or develop stress-related diseases. In fact, there is evidence that some dolphins have habituated to encirclement and have developed behaviors that reduce their risks in the net. Nevertheless, the stress issue should be further investigated, followed by a report and recommendations to Congress - as called for in H.R.2823 (Sec. 302(d)(4)).

FACT: There is no credible scientific research demonstrating that dolphins have "habituated to encirclement". Dr. Albert Myrick, a long-term staff scientist with the NMFS who has extensively studied the traumatic effects of chase and capture on wild dolphins, states "...the (Center for Marine Conservation, on behalf of the five organizations,) testimony is a particularly excellent example of criticism that is irresponsible, illegitimate, and unprofessional. It has misrepresented the evidence by the use of reporting errors, omissions, and misstatements and cavalier disposition of important pieces of research reports."

H.R.2823/S.1420 legalize and encourage chase, capture, and killing of up to 5,000 dolphins annually in purse seine nets, while including as window-dressing a call for an unfunded, after-the-fact study to address the issue of stress and unobserved dolphin mortality. No "further action" would be mandated when such a study concludes that chase and capture are not safe for dolphins.

2. It's Better for Other Sea Life:

Contains tough provisions that require fishers to protect not only the dolphins, but also the tuna stocks on which the fishery depends, as well as other species, like sharks, billfish and sea turtles that get caught in the purse seine nets used in the ETP fishery. One of the MMPA's stated objectives is to maintain the health and stability of marine ecosystems, but to date little attention has been given to this objective. H.R.2823 requires observers stationed on every vessel to record bycatch of all species, and requires fishers to minimize that bycatch.

FACT: The ETP tuna fishery is, according to the international Food and Agriculture Organization of the United Nations, one of the cleanest fisheries in terms of bycatch in the world. Bycatch of other nontarget species has declined in the ETP fishery in recent years, due in part to the dolphin-safe program and to a reduction in fishing pressure in the ETP. The IATTC and the NMFS report that ETP tuna stocks are all healthy, more so than during the 1980's when over one hundred thousand dolphins were also being killed each year in the fishery. Claims of a sudden, "alarming" ETP bycatch problem are false.

Worse still, nothing in the Panama Declaration or H.R.2823/S.1420 "requires" fishermen to reduce or even avoid bycatch of non-target species. While stated as a vague goal in the Panama Declaration, neither the Declaration nor the legislation contain any specific steps or measures to reduce bycatch.

Efforts by Earth Island Institute and the Dolphin Safe/Fair Trade Coalition to increase protection for sea turtles and other non-target species have been opposed by the supporters of H.R.2823 and S.1420. Representatives Gerry Studds and Sam Farr, for example, both offered amendments to H.R.2823 in the House Resources Committee which would have required the live release of entangled sea turtles and required nations to take specific steps toreduce bycatch. But these amendments were actively opposed by Greenpeace and Republican sponsors of H.R.2823. The amendments were voted down. Mexico, Colombia, Venezuela and their highly-paid Washington DC lobbyists oppose any restrictions on their tuna fisheries or any efforts to curtail the bycatch in their territorial waters, which is outside the purview of the Panama Declaration.

Tuna fishing vessels in the ETP fish opportunistically for tuna, not just on dolphin schools. Passage of H.R.2823 and S.1420, by increasing the number of fishing boats in the ETP, which is a stated goal of the U.S. State Department and the IATTC, would increase the bycatch of both dolphins and other nontarget marine species.

Recognizes that "dolphin-safe" and "ecosystem-safe" fishing go hand-in-hand. Recent data indicate that fishing methods that do not involve setting nets around dolphins, such as setting nets on schools of tuna or logs, have 10 to 100 times greater bycatch of other sea life. This bycatch is alarming, especially for species that reproduce slowly, such as sharks, sea turtles and billfish. In addition, the IATTC estimates that, if sets on dolphins were replaced by school and log sets, from 10 to 25 million juvenile tuna would be discarded. Domestic and international fisheries conservation efforts have made bycatch reduction a priority. H.R.2823 provides the best vehicle to develop immediate measures to avoid, reduce, and minimize bycatch of juvenile yellowfin tuna and other marine life. In contrast, the Miller substitute (H.R.2856) unfortunately promotes a substantial increase in the waste of immature tuna and other bycatch species, by encouraging shifts to those non-encirclement fishing methods.

FACT: See above paragraph. The ETP tuna fishery has low bycatch compared to other world fisheries; H.R.2823/S.1420 do nothing to reduce bycatch except by encouraging more dolphin deaths (which ironically will increase bycatch); and the supporters of the legislation have fought amendments designed to address bycatch issues.

Dr. John Hall states in his letter to President Clinton: "As a marine biologist who has been involved in the eastern tropical Pacific tuna fishery for almost 30 years (since 1970) I want to assure you that implementing the Panama Declaration through H.R.2823 and S.1420 will NOT reduce bycatch (dolphins, fish and sea turtles) in the tuna purse seine fishery ... In order to reduce bycatch of fish and sea turtles, we need to work to close those areas of the Gulf of Panama to purse seining during that portion of the year when small tuna are most prevalent there."

Greenpeace, World Wildlife Fund, and Environmental Defense Fund all have previously agreed (as recently as 1992 testimony to Congress) that the technique of setting nets on dolphins should be abandoned. Now, inexplicably, they endorse bills that will legitimize and perpetuate this destructive practice and completely eliminate any incentive for the development of non-encirclement alternative techniques, while opposing restrictions to truly prevent bycatch.

3. It's Better for Consumers:

Strengthens the popular "dolphin-safe" label, assuring consumers that no dolphins died in the catch of labeled tuna. Under the current definition (carried forward in the Miller substitute), consumers are misled into believing the current "dolphin-safe" label has solved the tuna-dolphin issue, and that dolphins no longer die in tuna sets. Sadly, this is not the case. Fishers continue to encircle dolphins at the same rate as prior to the establishment of the "dolphin-safe" label. Truth-in-labeling lies in the passage of H.R.2823, because it tells the consumer whether or not a dolphin died, and not just about what fishing technique was used. It gives consumers the ability to choose tuna caught without killing dolphins, and that power of choice, in turn, gives fishers the incentive to reduce dolphin mortality further toward zero.

FACT: Only a fool could believe that the Panama Declaration and the proposed legislation strengthens the dolphin-safe label. The current definition of "dolphin-safe" tuna, which was developed in 1990, prohibits any encirclement of nets around dolphins, a practice which has killed over 7 million dolphins in the last three decades in the ETP. The definition also prohibits use of drift nets and is done on a trip-by-trip basis (in other words, dolphin-safe and dolphin-deadly tuna cannot be mixed on a trip aboard the same boat). The definition proposed in H.R.2823 and S.1420 amounts to consumer fraud. Dolphins may be chased, injured, encircled by purse seine nets, and captured, and may still be labeled "dolphin safe" as long as no dolphins were "observed" to be killed outright. Does anyone truly believe that the calamitous practice of setting nets on dolphins is "safe" for them? By all accounts, this definition is weaker, less enforceable, and subject to far more cheating than the current definition.

H.R.2823 and S.1420 also lift the embargo against import and sale dolphin-deadly tuna, tuna caught when dolphins were killed outright. Today, as Mexico and other foreign nations continue to kill dolphins, they cannot sell their canned tuna, stained by the blood of dolphins, in the United States. Under H.R.2823/S.1420, however, consumers would be forced to choose between unlabeled cans of tuna (which were caught by killing dolphins) or cans with a phony "dolphin-safe" label, where dolphins were chased, injured, and died without being noted by an observer.

The legislation further prohibits any other labels, making it impossible for legitimate "dolphin-safe" tuna to be identified by a shopper. U.S. tuna processors, who have all pledged to continue to protect dolphins under the current "dolphin-safe" definition, would be undercut by cheap foreign, dolphin-deadly tuna.

The likely result of the passage of H.R.2823/S.1420 would be chaos in the international tuna market as American consumers boycott all tuna, rather than contribute to deceptive efforts that attempt to hide the slaughter of dolphins.

4. It's Better for International Environmental Policy:

Raises other countries' environmental performance to the U.S. level, and to more sustainable levels, by ensuring that foreign-caught tuna sold in foreign countries will meet the same strong dolphin and other species/ecosystem protection requirements that we apply to tuna sold in our country. Moreover, H.R.2823 provides that if ETP fishing nations fail to meet the multilaterally-agreed standards, their tuna will be banned from import into the United States - a trade sanction that serves as one of the means of ensuring compliance with and enforcement of the proposed legally binding agreement called for in the Panama Declaration.

FACT: H.R.2823 and S.1420 do not strengthen any standard. They weaken U.S. dolphin-safe tuna standards in favor of bogus standards set by the fishing nations themselves. Currently, more than 90% of the world's canned tuna market, according to the UN Food and Agriculture Organization, is consumed by the United States, Canada and Europe. Through U.S. laws and international agreements with Earth Island Institute in Europe and Canada, these markets are now "dolphin safe" under current U.S. standards. H.R.2823 and S.1420 does not "raise" the rest of the world up to our standards; it drops our standards to meet the tuna selling needs of Mexico, Colombia, Venezuela and other ETP fishing nations, at the expense of dolphins.

While H.R.2823/S.1420 provides the means for the U.S. NMFS to ban import and sale of tuna into the U.S. if nations are not in compliance with the dolphin killing levels of the yet-to-be-negotiated "legally binding agreement," similar import bans have been shunned by NMFS. It was only by the force of three court orders obtained by Earth Island Institute that the tuna embargoes were ever put into place, even at a time when foreign countries were killing dolphins at rates five to ten times higher than allowed under the MMPA. The U.S. government has also repeatedly refused to impose trade sanctions in numerous other conservation treaty battles.

Makes possible stronger international conservation policy for dolphins, as well as other marine species impacted in the ETP fishery. The Panama Declaration, and the resulting multilateral environmental agreement (MEA) made possible by H.R.2823's passage, will result in strengthened conservation and enforcement measures applicable to all ETP fishing nations. At the same time, that MEA, once agreed by all ETP fishing nations, will be far less vulnerable to a WTO-type challenge than have been the unilateral MMPA sanctions like those challenged by Mexico in 1991.

FACT: Once again, the five organizations argue that a non-existent agreement that has yet to be negotiated will be stronger than existing U.S. dolphin protection laws, but first they would repeal existing U.S. dolphin protection laws before any agreement can be negotiated. How can anyone believe that an international agreement will be stronger? How do we know any agreement will be reached at all? And what realistic prospect is there that the Clinton Administration, which refuses to enforce other trade sanctions, would enforce new trade sanctions proposed by H.R.2823 and S.1420?

In fact, H.R.2823/S.1420 would cost the lives of thousands of dolphins annually, breaks faith with American consumers and U.S. tuna processors, and would hand over authority for dolphin conservation to an unaccountable, unenforceable regime administered by the IATTC.

The Miller/Studds-Boxer/Biden alternative, H.R.2856 and S.1460, by contrast, maintains strong U.S. dolphin protection laws, including the current strong, enforceable definition of "dolphin safe" tuna, while lifting the current embargo against "dolphin safe" tuna from Mexico and other countries. This alternative is consistent with World Trade Organization mandates while rewarding those fishermen who truly protect dolphins by providing access to U.S. markets.

H.R.2823/S.1420 and the Panama Declaration are a fraud. They are disastrous for dolphins, fail to address the bycatch of other sea life, defraud consumers, and sacrifice international environmental policy and dolphins on the altar of free trade.

The Dolphin Safe/Fair Trade Coalition supports H.R. 2856 (Miller) and S.1460 (Boxer/Biden) to protect dolphins, U.S. environmental trade standards, and American consumers.


International Marine Mammal Project
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