“Dolphin-Safe” Tuna Label Safe for Now
Earth Island Institute v. Evans, 2004 U.S. Dist. LEXIS 15729 (N.D. Cal. Aug. 9, 2004).

Maureen McGowan1

On August 9, 2004, the U.S. District Court for the Northern District of California rejected the Commerce Department’s efforts to weaken the “dolphin-safe” tuna labeling program. In a scathing decision the court accused the administration of sacrificing science for politics by failing to complete required scientific studies before determining that there would be no significant impact to the dolphin population by changing the tuna labeling standards. The court found as a matter of law that the final finding of the Secretary of Commerce (Secretary) must be set aside, and the definition of “dolphin-safe” should remain unchanged.

Background
Yellowfin tuna in the eastern tropical Pacific (ETP) often swim below schools of dolphins, and a fishing technique was developed where purse seine nets were placed on dolphins in order to catch the tuna. This method, which involves chasing and netting dolphins and tuna in mile-long nets, decimated the dolphin population by killing over seven million animals since the early 1950s. In response to public outcry Congress passed the Marine Mammal Protection Act in 1972, which prohibited U.S. fishing boats from dropping nets on dolphins, and then imposed the same standard on foreign imports in the 1980s.

In 1992, Congress passed the Dolphin Protection Consumer Information Act, creating the “dolphin-safe” label for tuna caught without netting dolphins. Over the twelve years that the labeling program has been in effect, dolphin deaths have decreased by 98 percent in the ETP.2 However, by selling only “dolphin-safe” tuna, major U.S. tuna processors effectively banned imports from Mexico and other Latin American companies with large tuna fleets. Those nations that lost a huge part of their market due to the higher standards, as well as other nations fishing in the ETP, joined together in the International Dolphin Conservation Program in 1992. Eventually a binding agreement, the Panama Declaration, was formalized, in which the U.S. agreed to ease embargoes and improve market access for ETP tuna coming from Mexico and other Latin American fleets.

In 1997, the International Dolphin Conservation Program Act (IDCPA) authorized the “dolphin-safe” label to be applied to tuna caught in nets that trap and release dolphins when shipboard observers found that no dolphins were harmed or killed, but only if the Commerce Department concluded after conducting studies that the trap and release process does not harm depleted dolphin populations. The law required the Secretary of Commerce to conduct a population abundance study and three different stress studies in order to determine whether chase and encirclement with purse seine nets is having a significant adverse impact on the dolphins in the ETP.

Initial findings were issued by the Secretary on May 7, 1999, stating that “there was insufficient evidence that chase and encirclement by the tuna purse seine industry ‘is having a significant adverse impact’ on depleted dolphin stocks in the ETP.”3 The Secretary was prevented from lessening the “dolphin-safe” standard based on his initial findings after environmental groups successfully challenged the findings. The Ninth Circuit held that the Secretary was “required to affirmatively find that the fishery either was or was not having a significant adverse impact, and could not rely on ‘insufficient evidence’ to default to a finding of no significant adverse impact . . . Such an approach would discourage proactive fact-finding and research.”4

Preliminary Injunction
In 2002, the Secretary issued his final findings, determining that “the intentional deployment on or encirclement of dolphins with purse seines is not having a significant adverse effect on any depleted dolphin stock in the ETP.”5 Based on these findings the “dolphin-safe” label was redefined to include tuna caught when dolphins were trapped and released, but not killed.

In response to the weakening of the “dolphin-safe” standard Earth Island Institute, the Humane Society of the United States, the ASPCA, Defenders of Wildlife, and several other environmental groups filed suit against Donald Evans, the Secretary of Commerce, to enjoin the administration from changing the “dolphin-safe” standard until the administrative record could be completed. The court found that a preliminary injunction was appropriate because the plaintiffs would likely succeed on the merits of the case, and the public interest weighed in favor of “maintaining the status quo pending resolution of the case.”6 In the meantime, major U.S. brands (Starkist, Chicken of the Sea, and Bumble Bee) had already declared that they will not buy tuna caught by chasing and netting dolphins, regardless of what happens to the labeling standards.

Summary Judgment under the Administrative Procedure Act
The Administrative Record was completed in June 2004 and the parties went back to the Northern District Court on cross-motions for summary judgment. In order to succeed on their motion for summary judgment, Earth Island Institute (EII) would have to show that the Secretary’s final finding was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The burden would be on EII to demonstrate that (1) the Secretary’s explanation for his decision runs counter to the evidence before the agency, (2) the agency relied on facts which Congress did not intend it to consider, or (3) the agency entirely failed to consider an important aspect of the problem. While there is considerable deference given to an agency, it is not unlimited and the courts will conduct a “searching and careful” inquiry into agency decisions.7

Congressionally Mandated Research
Congress specifically rejected language in the IDCPA that would have automatically changed the labeling standards, and instead required the Secretary to conduct several scientific studies to determine the effects that trap-and-release fishing were having on the depleted dolphin populations in the ETP before making any decisions. Through “mandatory and direct” language Congress required the Secretary to carry out three stress studies: (1) a series of necropsies (comparable to a human autopsy), (2) a review of historical demographic and biological data, and (3) an experimental chase and encirclement stress study (CHESS). In prior decisions, the Secretary was expressly warned that “he could not fail to comply with the required research and then invoke a ‘lack of stress-related information to trigger a change’ in the dolphin-safe label standard.”8

Best Available Scientific Evidence
The applicable standard, requiring the Secretary to evaluate best available scientific evidence, “does not demand conclusive evidence and is intended to give ‘the benefit of the doubt to the species.’”9 In this case the best available scientific evidence consisted of the Final Science Report and the reports from two scientific panels. The Secretary adopted an “Organized Decision Process,” and focused on four different questions when making his final finding: “(1) whether there have been changes to the ETP ecosystem that have affected the ability of depleted dolphin stocks to recover, (2) current direct mortality levels, (3) whether stress or other indirect effects of the fishery are affecting the ability of dolphin stocks to recover, and (4) the growth rates of depleted dolphins stocks.”10 On every question the Secretary tried to spin the relevant data in support of the position that the depleted dolphin stocks are not being adversely affected by the fishery; however the court found that virtually all of the best available scientific evidence “points towards the fishery having a significant adverse impact.”11

Integrity of the Decision-Making Process
Both the Northern District Court and the Ninth Circuit held that the Secretary could base his final findings “[only] on the best available scientific data, and without deference to trade politics or competing policy viewpoints.”12 Yet the evidence indicated that the Secretary was persuaded by political and diplomatic concerns unrelated to the scientific data, particularly the influences of the U.S. Department of State and Mexico. The court stated that it was “convinced that the Secretary’s decision-making process was infected by the very policy considerations that Congress had directed should not be considered.”13

Conclusion
In his 24 years on the bench, the judge claimed he had “[never] reviewed a record of agency action that contained such a compelling portrait of political meddling.”14 The best scientific evidence “indicates that (1) dolphin stocks are still severely depleted and are not recovering despite extremely low reported mortality rates, (2) that their recovery is being risked or appreciably delayed, (3) that changes to the ecosystem are unlikely to explain this phenomena, and (4) that indirect effects from the fishery can plausibly account for the lack of recovery.”15 In spite of the evidence, the Secretary made a final finding that the “intentional deployment on or encirclement of dolphins with purse seine nets is not having a significant adverse effect on any depleted dolphin stock in the ETP.”16 Earth Island Institute successfully demonstrated that the Secretary’s offered explanation for its decision ran counter to the evidence before the agency and that the agency relied on facts which Congress did not intend it to consider. Therefore, for now, the “dolphin-safe” labeling standard will remain as it has been for the past twelve years.

Endnotes
1. Maureen is a third-year law student at the University of Georgia School of Law.
2. Mark J. Palmer, Earth Island Sues Again to Save Dolphins, Earth Island Journal, June 22, 2003, at 19.
3. Earth Island Institute v. Evans, 2004 U.S. Dist. LEXIS 15729 at *10 (N.D. Cal. Aug. 9, 2004).
4. Id. at *11.
5. Id. at *15.
6. Earth Island Institute v. Evans, 256 F.Supp.2d 1064, 1068 (N.D. Cal. 2003).
7. Earth Island Institute, 2004 U.S. Dist. LEXIS 15729 at *21.
8. Id. at *24.
9. Id. at *95.
10. Id. at *36-37.
11. Id. at *38.
12. Id. at *77.
13. Id. at *92.
14. Id. at *78.
15. Id. at *95-96.
16. Id. at *98.