Court blocks Bush on dolphin-safe label

Earth Island Journal, Autumn 2003

On December 31, 2002, Secretary of Commerce Donald Evans attempted to gut the meaning of "Dolphin Safe" by allowing Mexico and other countries to label their canned tuna as "Dolphin Safe," despite their continuing practice of chasing and netting dolphins to catch the tuna that swim beneath them. More than seven million dolphins have been killed by this fishing technique since the use of purse seine nets was developed in the late 1950s. Earth Island Institute, with eight other environmental groups and one individual, immediately initiated a lawsuit (Earth Island Institute v Evans) to oppose Evans's efforts. Plaintiffs in the dolphin case are: EII, Humane Society of the United States, American Society for the Prevention of Cruelty to Animals (ASPCA), Defenders of Wildlife, International Wildlife Coalition, Animal Welfare Institute, Society for Animal Protective Legislation, Animal Fund, Oceanic Society, and Samuel LaBudde.

The plaintiffs scored two important legal victories for dolphins when federal Judge Thelton Henderson issued a preliminary injunction preventing the Bush administration from weakening the strong standards for the "Dolphin Safe" tuna label by ruling to keep Mexican and Venezuelan tuna industries from intervening in the lawsuit.

In granting the injunction, Judge Henderson stated: "this Court concludes that plaintiffs have (1) raised a serious question as to whether the Secretary relied on factors which Congress did not intend it to consider, and (2) shown that they are likely to succeed on their claim that the final finding is contrary to the best available scientific evidence..."

"This is a victory for dolphins, and a good start for our lawsuit," says David Phillips, director of IMMP. "We can now go to trial over the next few months knowing that the integrity of the 'Dolphin Safe' tuna label will be protected by this injunction."

Phillips adds: "The Administration's own scientists have shown that the fishing practice is a disaster for dolphins. This is no more than a political gift to Mexico and other fishing nations that continue to chase and harm dolphins at the expense of dolphin lives. If this decision by the Bush administration were allowed to go into effect, some irresponsible tuna fishing companies would deliberately target thousands of baby dolphins each year, leading to death from starvation and predators. We cannot allow that to occur."

Judge Henderson also issued a second ruling preventing Mexican and Venezuelan tuna industry millionaires from intervening in the "Dolphin Safe" tuna label lawsuit. In an extensive opinion, Judge Henderson determined that the economic interest of Mexican and Venezuelan tuna industries in selling tuna in the US was not sufficient to allow their entering the case, and that the Bush administration was adequately representing their interests in weakening the "Dolphin Safe" tuna label standards.

"We believe the Mexican and Venezuelan tuna industry have already had too much political influence on the Bush administration," says Phillips. "Their only interest is in selling tuna in the US, and they know they cannot sell it here unless they falsely claim it is 'Dolphin Safe.' Judge Henderson rightly has kept them out of the case due to their lack of any scientific or environmental interest."

"This decision means that the case will proceed to trial more quickly," says Josh Floum of San Francisco's Holme Roberts & Owen, lead counsel for the plaintiffs. "Judge Henderson properly recognized that economic interests alone do not allow Mexican and Venezuelan fishing companies to intervene in this case. The statute at issue is about protecting dolphins and providing truth in labeling for the American consumer. It is not about advancing commercial fishing interests," Floum adds. "This is particularly true because the United States fleet is truly 'Dolphin Safe,' and our foreign counterparts should be held to the same standard."

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