Documents recently obtained in our lawsuit against the Commerce
Department would appear to show that the Bush Administration is
playing politics in its attempt to weaken the popular Dolphin
Safe label.
Earth Island Institute and The HSUS, the lead plaintiffs in
a lawsuit to return the Dolphin Safe label to its original
standards, unearthed a December 20, 2002 "talking points" memo
written by William T. Hogarth, assistant administrator for
fisheries with the National Marine Fisheries Service (NMFS), an
agency under the Commerce Department. In the memo, Hogarth
wrote that "purse seine" fishing techniques in the Eastern
Tropical Pacific (ETP), in which boats with massive nets chase
and encircle dolphins to catch the tuna that swim under the
marine mammals, are "having a significant adverse impact on
depleted dolphins stocks in the ETP."
Eleven days later, however, the Commerce Department issued
the exact opposite statement in a final finding that allowed
the agency to weaken the Dolphin Safe label. Hogarth, speaking
on behalf of Secretary of Commerce Donald L. Evans, who was
legally bound to make a final determination on purse seine
fishing based on scientific research, "determined that the
chase and intentional deployment on or encirclement of dolphins
with purse seine nets is not having a significant adverse
impact on depleted dolphin stocks in the ETP."
The agency publicly delivered the notice late on New Year's
Eve 2002, the deadline date that Congress set in 1997 for the
Commerce Secretary to make a final finding.
As a result, the Commerce Secretary ruled that purse seine
vessels with more than a 400-short ton capacity could sell
their tuna to the United States as "dolphin safe" as long as on
board observers noted that no dolphins had been killed or
injured.
"The December 20 memo is the smoking gun we were looking
for," said Wayne Pacelle, chief executive officer-designate for
The HSUS. "Given the wealth of evidence showing that dolphin populations are not
recovering in the ETP, we have strongly suspected that the
purse seine tuna industry was still largely responsible for the
lack of recovery. Hogarth's memo would appear to confirm that
the scientific research supports the same conclusion. The memo
also leads us to only one conclusion: The Bush Administration
was willing to set aside scientific evidence to appease purse
seine tuna interests who are willing to sacrifice thousands of
dolphins to fraudulently attain the Dolphin Safe label in U.S.
markets."
On Monday, May 24, the plaintiffs in the lawsuit against the
Commerce Department presented the memo to U.S. District Court
Judge Thelton E. Henderson, who in April 2003 issued a preliminary
injunction maintaining the old Dolphin Safe standards. The
plaintiffs, including The HSUS, are asking Henderson for a
summary judgment against Commerce and a permanent roll-back to
the old Dolphin Safe standards. The judge is expected to rule
in two to four weeks.
Late Discovery
How the "talking points" memo landed in our hands is almost
as byzantine as the Bush Administration's handling of the
Dolphin Safe label. We found the memo among four binders of
materials that the Commerce Department had forwarded to us on
May 10 after Henderson ordered the agency to release all
documents related to the tuna-dolphin issue. The four binders
were not part of the original "discovery" materials forwarded
by Commerce.
Henderson issued the order after Earth Island got its hands
on a secret 1999 memo that alleged massive bribery aboard
Mexican tuna boats—a memo that was forwarded to the
organization from Defenders of Wildlife, which had also filed a
lawsuit (along with The HSUS) against the government over
tuna-dolphin rules. The 1999 memo, according to the San
Francisco Chronicle, which broke the story publicly, "noted
that there were plausible reports that observers on Mexican
tuna boats operating under the authority of the Inter-American Tropical Tuna
Commission (IATTC) routinely were taking $10,000 bribes to
falsify data on dolphin nettings."
According to the Chronicle, the email quoted an
American fisherman who worked on board Mexican tuna boats. The
fisherman claimed that "although they always had observers on
board, it was common knowledge throughout the fleet that the
observers were regularly paid off to misreport what happened
during the cruise."
The government's lawyers argued that the allegations in the
1999 memo were not relevant to the Commerce Department's final
finding in late 2002 nor to the rule change for the Dolphin
Safe label. The agency made this claim despite the fact that
millions of dolphins have been killed by purse seine vessels
since the 1950s, when the fishing technique first gained
favor.
Judge Henderson thought otherwise, and on April 15 noted,
according to the Chronicle, that documents "that go to
the reliability or credibility of data relied upon by the
decisionmaker are plainly relevant…The government's failure to
acknowledge this point is deeply troubling and reveals a
glaring omission in the manner in which the record was
compiled."
"Between Hogarth's 'talking points' memo and the 1999 email
about bribes, it would seem clear that the Bush Administration
did not follow the letter of the law," says Kitty Block,
special counsel to The HSUS's United Nations, Treaties and
International Trade section. Block notes that the 1997 law
passed by Congress required Commerce to base its final finding
on science.
"The government's final finding and weakened standards for
the Dolphin Safe label would appear to be based on nothing more
than politics," Block adds. "The government was obviously more
interested in opening up the lucrative U.S. market to tuna
fishermen who don't deserve it than in maintaining the Dolphin
Safe standards that American consumers trust."
Hogarth's 'Talking Points'
William Hogarth's "talking points" memo reveals an
administrator with deep misgivings about purse seine fishing.
Among the highlights of the memo:
- "The definition of dolphin-safe means that no dolphins
may be chased or encircled in the entire trip and no dolphins
may be seriously injured or killed in the set in which the
tuna was harvested. This finding becomes effective
immediately."
- "There is evidence that the national observer programs
used by the IDCP [International Dolphin Conservation Program,
a voluntary program] have a lower reporting rate for dolphin
mortality than the IATTC observer programs."
- "There are an unknown number of prohibited dolphin sets
made by smaller vessels not addressed under current rules
(vessels with carrying capacities under 400 short tons) for
which we have no data because they do not require
observers."
- The expert panel concluded that the high number of times
per year that each dolphin was exposed to purse seine nets
could explain the lack of recovery. For example, the
intensity of purse seine fishing on dolphins is such that
only two to four additional dolphins either 'removed from [a]
population' (not born, die later, etc.) per set could explain
the lack of recovery."
"It's time to stop this charade," says The HSUS's Pacelle.
"The government knows that purse seine fishing is bad for
dolphins in the Eastern Tropical Pacific. Our laws were
designed to protect both dolphins and consumers. We urge Judge
Henderson to rule in our favor and maintain the historic
standards for the Dolphin Safe label, which are good for
dolphins and for American consumers."
