Dolphin-safe label victory
by Mark J. Palmer
Earth Island Journal, Winter 2001-2002
Last July, a three-judge panel for the federal Ninth Circuit
Court of Appeals unanimously upheld Judge Thelton Henderson's
decision in "Brower vs. Daley," Earth Island Institute's
landmark tuna-labeling lawsuit.
"This is a tremendous victory for dolphins and for US
consumers," said Mark J. Palmer, Assistant Director of Earth
Island Institute's International Marine Mammal Project (IMMP).
"It is also a serious defeat for the US State Department
in their efforts to mislead consumers on behalf of a handful of
Mexican tuna millionaires in the name of free trade."
Since 1990, the "dolphin-safe" label has assured
shoppers that their canned tuna was caught without any chasing
and netting of dolphins But in 1999, former Secretary of Commerce
Richard Daley issued a ruling that would have weakened the "dolphin-safe"
standards. Under the Daley dictate tuna fishers could use the
"dolphin-safe" label even if they chased, harassed,
netted injured and even killed dolphins in the pursuit of tuna
- just so long as no onboard observer actually reported seeing
dolphins killed or "seriously injured."
Tuna boats in the Eastern Tropical Pacific (ETP) target dolphins
because tuna often swim below dolphins. Some dolphin schools are
chased and netted as often as three times in one day, causing
stress that can harm dolphin health and reproduction. Netted dolphins
that die from injuries after release are not counted by the onboard
The appeals panel ruled that Daley's fiat to weaken the "dolphin-safe"
standards was "contrary to law and an abuse of his discretion
[since] all of the evidence indicated that dolphins were adversely
impacted by the fishery." Federal scientists have determined
that dolphin populations in the Eastern Tropical Pacific are not
recovering as expected, even with the dramatically lower reported
kills of recent years.
The successful pro-bono lawsuit, filed by attorneys Josh Floum
and Ariela St. Pierre of Legal Strategies Group of Emeryville,
California, contended that Daley's decision illegally ignored
research supplied by the Commerce Department's own scientists.
Earth Island and other groups, which developed the Dolphin-Safe
label, charged that the Clinton/Gore Administration weakened US
dolphin protection laws to accommodate tuna millionaires in Mexico
and other countries in the name of free trade.
It is unclear how the new Bush Administration will handle
this issue. Legal experts believe the ruling is unlikely to be
overturned on appeal because the court made it clear that the
Bush administration must base its final decision on science, not
political expedience or free trade. A final decision by Commerce
Secretary Donald Evans is set for 2002.
Earth Island Institute, Earth Island Founder David R Brower
and nine other environmental groups filed the lawsuit in August
2000. Additional plaintiffs included biologist Samuel LaBudde,
Humane Society of the United States, American Society for the
Prevention of Cruelty to Animals, Defenders of Wildlife, International
Wildlife Coalition, Animal Welfare Institute, Society for Animal
Protective Legislation, Animal Fund, Oceanic Society and Environmental
More than 7 million dolphins have drowned in tuna nets over
the past four decades. Since the advent of the "dolphin-safe"
tuna program in 1990, dolphin deaths have decreased by 98 percent
in the ETP
"Dave Brower fought all his life for the protection of
wild animals and wild places," noted Palmer. "We are
proud that his legacy lives on in this humane and powerful court
decision for the dolphins."