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“Dolphin Safe” Tuna Retains Its Meaning

Earth Island Inst. v. Hogarth, 2007 U.S. App. LEXIS 9572 (9th Cir. Apr. 27, 2007).

Terra Bowling, J.D.

The Ninth Circuit has ruled that the National Marine Fisheries Service’s (NMFS) conclusion that the yellowfin tuna fishery has no adverse impact on a dolphin population was based on inconclusive evidence and is therefore arbitrary and capricious. The court also held that, absent a Congressional mandate, the “dolphin safe” label would continue to signify that the tuna was not harvested with purse-seine nets and that no dolphins were killed or seriously injured when the tuna were caught.

Off the west coast of South America, yellowfin tuna, a prized commercial fish, are often found congregating beneath pods of dolphins. In the 1950s, fishermen began catching the tuna by encircling the dolphins with purse-seine nets to capture the tuna below. As a result, three species of dolphin stocks were rapidly depleted. Congress responded by passing the Dolphin Protection Consumer Information Act (DPCIA), which prohibits manufacturers from labeling tuna as “dolphin safe” if the tuna was caught using the purse-seine method.

As a result of the DPCIA, several commercial fishing groups were forced out of the market when they could not comply with the new standards and consumers exceedingly chose “dolphin safe” products. Those groups pushed Congress to relax the “dolphin safe” labeling requirements.

Seeking to determine whether the standards should be relaxed, Congress amended the Marine Mammal Protection Act (MMPA) and passed the International Dolphin Conservation Program Act (IDCPA). The MMPA now required NOAA to conduct three studies to determine whether the tuna fishery was, in fact, harming the dolphin populations. The IDCPA required the Secretary of Commerce, acting through NOAA, and essentially NMFS, to make an Initial Finding on the effects of the method by March 31, 1999 and a Final Finding by December 31, 2002.

NMFS Faces Opposition
In an Initial Finding released in 1999, the Secretary determined that the fishery was not having an adverse impact on the dolphin populations. Several environmental groups brought suit against NMFS, and the district court granted the groups summary judgment and vacated the Initial Finding. On appeal, the Ninth Circuit affirmed the district court’s decision, holding that the agency was required to reach a definitive answer, not a “default finding” based on the lack of evidence. The agency proceeded to perform additional studies and released a Final Finding in 2002 that concluded that the fishery was not a threat to the dolphin populations. Several groups, including Earth Island, again filed suit against the agency.

The district court granted summary judgment in favor of Earth Island, concluding that the Final Finding was arbitrary and capricious. The district court based its finding on three legal grounds: 1) the agency did not conduct the studies required by the MMPA and its finding was therefore arbitrary and capricious; 2) in light of the best available evidence, the agency’s no adverse impact finding was implausible; and 3) the court found a “compelling portrait of political meddling,” indicating that the agency considered factors outside of those mandated by Congress. The government appealed the district court’s decision to the Ninth Circuit.

The Ninth Circuit Weighs In
The Ninth Circuit reviewed the three legal grounds on which the district court based its decision. First, the court looked at whether the agency failed to conduct the appropriate studies. The court found that two of the studies required by the MMPA were inadequate. For instance, the first study required a review of relevant stress-related research and a 3-year series of necropsy samples from dolphins obtained by commercial vessels. NOAA concluded that it would need a minimum sample size of 600 dolphins to sufficiently perform the necropsy study; however, the agency only studied 56 dolphins. The next study in question required an experiment involving the repeated chasing and capturing of dolphins by means of intentional encirclement (the CHESS study). The court found that the sample size in the CHESS study was also too small to support an adequate finding.

Due to the inadequacies of the studies, the court determined that the agency did not obtain the scientifically meaningful results necessary to make a decision of whether the fishery affects the dolphin population. The agency contended that it had completed both of those studies and that the district court erred in its failure to defer to the agency’s expertise in the methodology it uses to conduct its studies. The Ninth Circuit rejected that argument and upheld the district court’s ruling, finding that “no deference to agency discretion as to methodology is appropriate when the agency ignores its own statistical methodology.”1

Next, the court examined whether the agency used the best available evidence in making its decision. The court recognized that although usually it would defer to the agency’s analysis, it would not do so in this instance “because there [was] no rational connection between the Secretary’s Final Finding and the evidence outlined in the Final Science Report …”2 For example, in its final report, the agency concluded that it did not have enough evidence to support a finding of the indirect effects on the dolphins, such as the effect of the mother-calf separation during a high-speed chase and encirclement, yet the agency concluded that the data supported a finding of no adverse impact.

Finally, the court determined that the agency’s finding was improperly influenced by political concerns. The court held that it was Congress’ intent that the agency should base its decision on science alone; however, the evidence showed that the agency weighed international political concerns in making its decision. The court cited internal memos that highlighted the foreign policy considerations at stake in the findings.

The final issue facing the court was whether it should remand the decision to the agency for further studies or vacate the Final Finding. The court ruled that this was one of the “rare circumstances” in which it would not remand the case but would vacate the Final Finding, citing the agency’s failure to conduct two of the three studies mandated under MMPA.

Furthermore, the court noted that the labeling requirements could only be changed if the studies had found that the fishery was not affecting the dolphin population. Because the agency had not obtained the data to support that conclusion, the labeling requirements could not be changed. The district court had gone a step beyond vacating the Final Finding by ordering NOAA and its agencies to take enforcement measures against those participating in impermissible labeling. Although the Ninth Circuit affirmed the district court’s ruling, it instructed the district court to limit its mandate to directing the Secretary to vacate NMFS’ Final Finding.

1. Earth Island Inst. v. Hogarth, 2007 U.S. App. LEXIS 9572 at *12 (9th Cir. Apr. 27, 2007).
2. Id. at *19.

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