[Press Release, AP article below. Also see Summary Judgement]
SAN FRANCISCO - A judge Tuesday barred the federal government from lowering U.S. dolphin-protection standards in a stretch of ocean from Southern California to South America to appease Mexican trade interests. In the latest round of five-year-long litigation over use of the "dolphin safe" label on tuna, pitting dolphins against international diplomacy, U.S. District Judge Thelton Henderson overturned a 2002 administrative finding that dolphin stock was not being significantly harmed by foreign tuna-netting.
Colin Powell
Henderson said a review of documents leading to the finding, made by Commerce Secretary Donald Evans, showed Evans ignored his department's scientific studies. Henderson said the documents presented "a compelling portrait of political meddling" by Secretary of State Colin Powell and other high-ranking officials on both sides of the U.S.-Mexico border.
Evans' finding had important international trade implications because, if it had gone into effect, it would have allowed the "dolphin safe" label on imported tuna caught by chasing and netting schools of dolphins that swim above them. The practice is used mainly in Venezuela, Ecuador and Mexico, which pushed hard for relaxation of the U.S. labeling standard. Evans' policy was put on ice while Henderson considered a suit filed by a coalition of environmental and animal-protection organizations.
In his ruling Tuesday, the judge ordered that " 'dolphin safe' shall continue to mean that 'no tuna were caught ... using a purse seine net intentionally deployed on or to encircle dolphins, and that no dolphins were killed or seriously injured' " on the trip in which the tuna were caught.
David Phillips, director of Earth Island Institute, said Henderson "averted a disaster for dolphins," which have perished by the millions in tuna nets in the past half-century.
A spokesman for the U.S. Department of Justice, which defended Evans in the case, said Henderson's opinion would be reviewed before the government determines its next step.
Henderson rejected what he said was a government position that "international concerns and competing policies for protecting dolphins" should be taken into account in setting the U.S. labeling standard.
Laws passed by Congress in 1990 and 1997 mandated what the standard would be and specified the research evidence that would be required before any future relaxation of the rules, Henderson said.
He said the Commerce Department dragged its feet on conducting the necessary research, put obstacles in its own path, ignored the best available scientific evidence and "compromised the integrity of its finding by allowing trade policy considerations to infect the decision-making process."
source: http://www.sacbee.com/content/politics/story/10333605p-11253703c.html 11aug04
San Francisco — Earth Island Institute’s International Marine Mammal Project announced a major legal victory for dolphins today. Federal Judge Thelton Henderson, in the case Earth Island Institute v. Secretary of Commerce Donald Evans, noted that the US Commerce Department’s weakening of the “Dolphin-safe” label on tuna cans illegally ignored scientific evidence and must be overturned. He ordered the issuance of a new rule prohibiting the use of a “Dolphin-safe” label on any tuna products caught by netting dolphins.
David Phillips, Director of Earth Island Institute, stated: “Thankfully, the courts have averted a disaster for dolphins.” He continued: “Judge Henderson’s ruling exposes the Bush Administration’s deceit in ignoring its own scientists and caving in to Mexican demands to allow dolphin-deadly tuna back into US with a phony label.”
Phillips continued: “Secret court documents proved that the government knew all along that netting dolphins was jeopardizing their very survival. Yet the Bush Administration still went ahead and ruled that tuna trade with Mexico was more important than dolphin lives”.
In a 51-page decision handed down today, Federal District Court Judge Henderson rebuked the Bush Administration, stating that: “(T)he record convincingly demonstrates that the Secretary (of Commerce) nonetheless proceeded to sacrifice the integrity of the decision-making process by disregarding the best available scientific evidence in favor of political and diplomatic considerations.”
On December 31, 2002, President Bush’s Commerce Secretary Evans issued a “no significant adverse impacts” finding allowing Mexico, Colombia, and other tuna fishing nations to label their tuna as “Dolphin Safe” and sell it in the U.S., even if it was caught by the chasing, netting, and killing thousands of dolphins annually. More than 7 million dolphins have been killed in tuna nets since the late 1950’s.
Earth Island Institute’s federal lawsuit contended that the Bush Administration weakened the “Dolphin Safe” tuna label definition on the basis of trade politics, rather than science, as required by Congress.
Further, Earth Island took steps to obtain secret government memos demonstrating that the US agencies’ own biologists knew dolphin populations were not recovering, as a result of the tuna fishery. Further, documents revealed the intense pressure from the US State Department, Mexico and other tuna fishing nations to ignore the scientific conclusions.
Phillips stated: “More than 300 documents were withheld from the court record. The Bush Administration went to amazing lengths to prevent Earth Island and the court from obtaining these damaging revelations.”
Plaintiffs in this case include: Earth Island Institute, 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 Oceanic Society.
Legal services were provided by attorneys Josh Floum and Ariela St. Pierre with Holme, Roberts, and Owen LLP.
SAN FRANCISCO - In a victory for environmentalists, a federal judge ruled Tuesday that the Bush administration cannot change the standards commercial fisheries must meet before the tuna they catch can carry the "dolphin-safe" label.
U.S. District Judge Thelton Henderson found that Commerce Secretary Donald Evans not only failed to conduct the scientific research required to relax existing tuna-labeling laws, but engaged in "a pattern of delay and inattention" to build support for his position.
"The record is replete with evidence that the secretary was influenced by policy concerns unrelated to the best available scientific evidence," Henderson wrote in a strongly worded 51-page opinion. "This court has never, in its 24 years, reviewed a record of agency action that contained such a compelling portrait of political meddling."
The Commerce Department wanted to rewrite the 1990 law to allow tuna caught with nets to be labeled dolphin-safe if observers certified that no dolphins were killed or seriously injured in the process. Dolphins commonly swim with schools of tuna, and fisheries in Mexico and South America encircle the popular mammals with nets to hone in on their prey.
Tuesday's ruling makes permanent an injunction Henderson issued last year that barred the Commerce Department from implementing the new rules while the case was pending.
"Judge Henderson's ruling exposes the Bush administration's deceit in ignoring its own scientists and caving into Mexican demands to allow dolphin-deadly tuna back into the U.S. with a phony label," said Earth Island Institute director David Phillips, whose group was one of the plaintiffs in the suit against Evans.
A U.S. Justice Department spokesman said government attorneys would have to review the decision and consult with the Commerce Department before deciding whether to appeal.
In his opinion, Henderson condemned the process the Commerce Department used to conclude that dolphins would not be harmed if the labeling rules were relaxed.
The department never made a serious effort to determine if encircling methods of fishing increased dolphin mortality rates and erroneously concluded based on limited existing research that they didn't pose a significant hazard, the judge said.
"Rather than supporting Defendants' position, the record shows an agency that continued to drag its feet, exercised little diligence, and put obstacles in its own road," Henderson wrote, adding that Evans' "arbitrary and capricious" decision was prompted by international trade policy.
The case is Earth Island Institute v. Evans, 03-0007.
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