By Wayne Pacelle
Less than two months into their new jobs, Secretary of Commerce Carlos Gutierrez and Secretary of State Condoleezza Rice have a chance to settle some trouble stirred up by their immediate predecessors: the evisceration of our nation’s "Dolphin Safe" standards. And all that these new cabinet secretaries have to do is...nothing.
Nothing, because in a blistering 51-page opinion, U.S. District Judge Thelton Henderson ruled in August 2004 that the Department of Commerce wrongly ignored the findings of the government's own scientists who warned that continued purse seine fishing was a deadly threat to dolphin populations already depleted by decades of the practice of setting nets on dolphins to catch the tuna that swim beneath them in the Eastern Tropical Pacific Ocean (ETP). Henderson's ruling came more than 18 months after The HSUS, Earth Island Institute, and other groups sued the Commerce Department and former Secretary Donald Evans who, with the steady encouragement of former Secretary of State Colin Powell, ruined the integrity of the "Dolphin Safe" label on December 31, 2002.
On that date, Evans ruled the purse seine fishing, in which boats chase and circle dolphins in order to capture the tuna who swim underneath, does not have a "significant adverse impact" on the depleted dolphin stocks in the ETP. That ruling opened the door for Mexico and other Latin American nations to sell their tuna as "Dolphin Safe" in the billion-dollar American market—an allowance that instantly undermined the trust of American consumers who relied upon the label when shopping for tuna.
Judge Henderson saw through the Bush Administration's ruse to tamper with science just to please some important Latin American trading partners. In his ruling, the judge wrote, "It appears that while the scientists at [National Marine Fisheries Service] undertook their research mission extremely seriously, at the end of the day, the intense pressures to secure larger policy objectives led to a decision driven more by politics than science." Henderson then promptly rolled back the "Dolphin Safe" standards.
Henderson's ruling against the government was the correct decision. Secretary Gutierrez and Secretary Rice should honor that decision by dropping the government's pending appeal.
Origins of a Label...
For reasons unknown to us, tuna in the ETP swim below dolphins. Taking advantage of this, commercial fishing fleets chase down the dolphins, exhausting the animals until they are herded into a panicked group (with the tuna still below), then set giant purse seine nets around them. Prior to the 1980s, the dolphins were hauled aboard with the tuna, with the result that many or all were entangled, crushed, and drowned. In various forms, this technique has killed more than seven million dolphins over the last four decades.
By the 1980s, Americans had seen enough of this reckless conduct and its sad consequences, and they rallied to ban the sale of tuna caught by chasing and encircling techniques. American tuna companies responded by pledging not to market tuna caught in this manner; Congress codified this standard in 1990, barring the import of dolphin-deadly tuna, and in 1992, affixing the “dolphin safe” label on cans of tuna sold in American markets.
...And the Slow Dismantling of It
Since those reforms were adopted, Mexico, Venezuela, and other Latin American nations—all of which still deploy tuna fleets specializing in purse seine fishing—have cast a covetous gaze on America’s massive canned tuna market. They argued that America’s dolphin protection laws violated free trade rules. In 1997, they persuaded the Clinton Administration and many Republicans in Congress to change our laws, lifting the embargo on tuna caught by setting nets on dolphins.
Knowing that American consumers would only buy tuna that carried the “Dolphin Safe” imprimatur, critics of dolphin protection legislation urged the U.S. government to redefine the label to allow nets to be set on dolphins, provided the dolphins were released before the net was hauled on board and an appointed observer on deck did not witness any dead or seriously injured dolphins during the set. On the last day of 2002, Secretary Evans, representing the Bush Administration, officially sanctioned this charade, allowing for the sale of tuna here as “Dolphin Safe” even if nets were intentionally set on dolphins.
Under the standard Evans promoted, commercial tuna boats could chase dolphins for up to two hours, round them up, separate mothers from their dependent calves, and encircle the air-breathing mammals in nets. As long as the dolphins were released alive, the standard was satisfied. Even if the dolphins sustained injuries—broken fins, bleeding lacerations, stress-induced ulcers and miscarriages, or even injuries that later caused death—the catch was considered “Dolphin Safe” if a single observer on a football-field-sized ship did not spot a “seriously injured” or dead dolphin before the dolphins were released.
The Fight to Save "Dolphin Safe"
In response, The HSUS, Earth Island Institute, and other animal protection groups sued the Commerce Department and Secretary Evans for their willful disregard of science in redefining the "Dolphin Safe" standards.
Addressing the government’s claims that the best available science was “inconclusive,” Judge Henderson called Secretary Evans’ adulteration of standards “arbitrary, capricious, an abuse of discretion, and contrary to law.” The judge added that in a quarter century on the bench, he had never seen “a record of agency action that contained such a compelling portrait of political meddling.”
It is the worst type of consumer fraud to market tuna as “Dolphin Safe” when the animals have been chased with speed boats and encircled in giant nets. Secretaries Gutierrez and Rice should recognize that their primary duty here is not to appease the corporate fishing interests of other nations. It is to protect American consumers, and to uphold the standards of decent and humane conduct that Americans expect.
Wayne Pacelle is President and CEO of The HSUS.
