Judge Cans Clinton's Phony Dolphin-Safe Tuna Label
Mark J. Palmer

San Francisco--In an Earth Day gift to dolphins, US District Court Judge Thelton Henderson struck down the Clinton/Gore Administration's attempt to weaken the standards for the popular "Dolphin Safe" canned-tuna label.

Earth Island Institute, along with nine other environmental groups and 87-year-old environmental activist David R. Brewer, filed the lawsuit last August to overturn US Commerce Secretary William Daley's attempt to weaken the "Dolphin Safe" label.

The dolphin-safe label (developed in 1990 by Earth Island and other environmental groups) can only be used on cans of tuna caught without chasing and netting dolphins. More than seven million dolphins drowned in tuna nets in the Eastern Tropical Pacific in four decades prior to the adoption of this label. After the introduction of the dolphin-safe label, dolphin deaths dropped by 97 percent.

On April 29, 1999, US Commerce Secretary William Daley ruled that chasing and netting does not cause "significant adverse impacts" to dolphins. The US was prepared to issue its own "dolphin safe" label, under which it would again be perfectly legal for tuna fleets to chase, harass, net, injure, and even kill dolphins so long as no on-board observers reported seeing dolphins killed outright or "seriously injured." (Any injured dolphins that died after release from the nets would, of course, not be counted.)

The successful pro bono lawsuit, filed by Legal Strategies Group lawyers Josh Floum and Ariela Freed, argued that the Commerce Secretary's decision was arbitrary and capricious and illegally ignored biological research supplied by the Commerce Department's own scientists.

Judge Henderson concluded that the Commerce Secretary had, in fact, "acted contrary to the law and abused his discretion when he triggered a change in the dolphin-safe label standard on the ground that he lacked sufficient evidence of significant adverse impacts."

Henderson (whose earlier rulings on Earth Island dolphin protection suits helped save hundreds of thousands of dolphins from dying in tuna nets) found that Daley's actions failed to honor Congress' intent that any labeling change must be supported by the findings of federally mandated dolphin-stress research. Henderson found it unacceptable that Daley could "fail to conduct mandated research, and then invoke a lack of evidence as a justification for removing... protection for a depleted species." The Commerce Department decision, Henderson noted, was particularly unconscionable since "the evidence presently available to the Secretary is all suggestive of a significant adverse impact."

David Phillips, Director of Earth Island's International Marine Mammal Project (IMMP), called the court's ruling "a tremendous rebuke to President Clinton, Vice President Gore, and the freetrade bureaucrats who sold out dolphin protections to accommodate a handful of foreign fishing companies."

Phillips charged that the Clinton/Gore Administration's attempts to weaken dolphin protection laws in the name of free trade would only benefit a few Latin American tuna millionaires while allowing more dolphins to die in tuna nets.

Floum, a partner with Legal Strategies Group, declared that "The decision gives consumers the choice to buy truly dolphin-safe tuna. It is time that we developed a new relationship with the dolphin species." Floum added, "We need to move from exploitation to cooperation."

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. They believe that problems arising from the physiological stress of harassment from tuna fleets are harming dolphin health and reproduction. (Some dolphin schools are chased and netted as often as three times in one day.)

Juvenile dolphins separated from their mothers during the chase frequently die, falling victim to starvation or shark attacks. New reports leaked from the Inter-American Tropical Tuna Commission indicate that some observers aboard Mexican tuna vessels have falsified official dolphin mortality figures. These were the same figures used by the Clinton Administration to justify weakening the existing dolphin-protection laws.

In a separate action, Earth Island Institute, Defenders of Wildlife, the Sierra Club, and other environmental and animal welfare groups have filed a new lawsuit with the New York Court of International Trade (CIT) to prevent the lifting of the tuna embargo against Mexico by the Clinton/Gore Administration. The suit contends that the Congressionally-required conditions for lifting the tuna embargoes have not been met by the US National Marine Fisheries Service or the Mexican tuna fishing industry.

The CIT refused to act initially and the tuna embargo was lifted on April 12. While Mexico now can legally sell its tuna in the US, much of Mexico's tuna cannot be labeled "Dolphin Safe." Mexican authorities have said that they will not try to export tuna into the US until they can overturn the strong standards behind the current "Dolphin Safe" label.

It is expected that the Clinton/Gore Administration and the Mexican government will do everything in their power to get around the Henderson decision that protects dolphins and informs consumers. A battle has been won, but the war to protect dolphins from foreign tuna fleets is far from over.

Additional plaintiffs included biologist and dolphin activist Samuel LaBudde, Humane Society of the US, 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 Internnational (sic).

What You Can Do: You can continue to buy tuna labeled "Dolphin Safe." If you see canned tuna without the "Dolphin Safe" label, send the name of the store, location, and brand name to IMMP 1300 Broadway, Suite 28, San Francisco, CA 94133, (415) 788-3666]. Earth Island will provide the store with information on dolphin-safe tuna sources. You can help the legal and international efforts to protect dolphins by donating to the "Earth Island Institute--IMMP Dolphin Campaign."

© Earth Island Journal, Autumn 2000