Earth Island sues to save dolphins

by Mark J. Palmer

Earth Island Journal, Summer 2003

In December, Earth Island and eight other environmental and animal welfare groups filed a lawsuit against the Secretary of Commerce in San Francisco Federal Court, seeking to overturn the stealth decision by the Bush administration to weaken federal "Dolphin Safe" tuna label standards. EII is seeking a court order to permanently block the weakened tuna label and prevent thousands of cans of Mexican tuna, falsely labeled as "Dolphin Safe," from flooding into the US.

The lawsuit was filed pro bono by attorneys Joshua Floum and Ariela St. Pierre of Holme Roberts & Owen in San Francisco. The government has agreed to a temporary stay of the implementation, safeguarding the strong "Dolphin Safe" label standards pending a hearing in early April for a preliminary injunction. Even so, trucks bearing dolphin-deadly tuna from Mexico reportedly rushed across the US border into Texas in January before the stay was implemented.

"We have been down this same road before in 1999 when the Administration tried to weaken the 'Dolphin Safe' label; that decision was struck down by the courts twice," says St. Pierre. "We intend to use the same evidence and the same realities as before. There can be no doubt that deliberately chasing and netting dolphins, can cause harm, especially to baby dolphins. We expect the same result in this lawsuit-a victory for dolphins and for the environment, and a strong rebuke to officials who would promote trade in derogation of their statutory duties to protect our environment."

Plaintiffs in the new dolphin case include EII, biologist Samuel LaBudde, The 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, and the Oceanic Society. The lawsuit is aimed at the US Commerce Department and the National Marine Fisheries Service. The Mexican tuna industry has petitioned the court to join the case.

"The administration's own scientists have shown that the fishing practice is a disaster for dolphins," says David Phillips, director of EII's International Marine Mammal Project. "This is no more than a political gift to Mexico at the expense of dolphin lives. With this new decision by the Bush administration, tuna fishing nations will deliberately target thousands of baby dolphins each year, leading to death from starvation and predators. We cannot allow that to occur."

EII contends that the Commerce Secretary's decision, which now allows a new weaker definition of "Dolphin Safe," is arbitrary and capricious. The successful federal "Dolphin Safe" tuna program is being jeopardized by the government's weakening of US dolphin protection laws to accommodate tuna millionaires in Mexico and other countries in the name of "free trade."

Before the Secretary's action, the "Dolphin Safe" label could not be used for any tuna caught by chasing and netting of dolphins. Tuna fishermen in the Eastern Tropical Pacific (ETP) deliberately target dolphins because tuna and dolphins form mixed schools, and dolphins are more visible from boats than are tuna. Since 1990 and the advent of the "Dolphin Safe" tuna program, dolphin deaths have decreased by 98 percent in the ETP

US tuna fishermen no longer set nets on dolphins, and the major US tuna processors-StarKist, Bumble Bee, and Chicken of the Sea-have pledged they will not buy tuna caught by chasing and netting dolphins, regardless of the changed standards. The primary beneficiary of the Secretary's decision is Mexico, though Venezuela, Colombia, and several other Latin American nations continue to chase and net dolphins to catch tuna. Of these countries, only Mexico has so far been certified by the Department of Commerce to import tuna.

"The American public deserves to know the truth about how tuna is caught," Phillips says. "The Secretary's decision is a fraud benefiting a small handful of Mexican tuna millionaires and drug lords, who can now import tuna to the US using a phony 'Dolphin Safe' label. All of the major US and European tuna processors have pledged not to buy or sell such tuna."

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