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Feds Allow "Dolphin-Safe" Tuna Rules to be Broken

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San Francisco Chronicle

U.S. eased rules on tuna despite bribery claim
E-mail alleged effort to evade dolphin law

By Glen Martin, Chronicle Environment Writer
April 28, 2004

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The U.S. Commerce Department has been aware for five years of allegations
that government observers on Mexican tuna-fishing boats were regularly
taking $10,000 bribes to concoct false reports that they were not netting
dolphins, according to an internal agency e-mail obtained by The Chronicle.

Bush administration lawyers have argued that the allegations were not
relevant to the government's 2002 decision to relax restrictions on foreign-
caught tuna. The decision allows tuna caught by foreign boats that set nets
on dolphins -- which follow the fish -- to be sold in U.S. as dolphin-safe,
provided the dolphins are released.

Critics say the e-mail demonstrates that the Bush administration ignored key
evidence and that its decision undermined longstanding environmental
protections.

"The whole basis for protecting dolphins in countries that set nets on them
is that there are reliable observers on board," said Mark Palmer of Earth
Island Institute, a San Francisco environmental group. "If the observers are
being bribed, obviously, the entire program falls apart."

Last year, after Earth Island challenged the government's decision, an
injunction by Judge Thelton Henderson of the U.S. District Court in San
Francisco prevented implementation of the rule.

For more than a decade, the dolphin-safe label has guaranteed U.S. consumers
that the tuna they are buying was caught by nets that did not trap dolphins.
Before U.S. regulation to protect them, dolphins that swim above schools of
tuna in the eastern tropical Pacific were dying by the hundreds of thousands
a year.

The government says current dolphin kills are less than 1,500 a year. But
dolphin species that were depleted by decades of losses have not recovered
-- a critical fact in the current case and one that the government says it
can't explain.

Commerce Secretary Donald Evans ordered the rule change under a 1997 law
that allowed dolphin-safe standards to be relaxed if supported by scientific
research. Government lawyers have stated in court documents that the
Commerce Department had "not considered or relied upon" the e-mail in
reaching its decision to relax the standards.

The 1999 e-mail was between staff members for the National Marine Fisheries
Service, a branch of the Commerce Department. It noted that there were
plausible reports that observers on Mexican tuna boats operating under the
authority of the Inter-American Tropical Tuna Commission routinely were
taking $10,000 bribes to falsify data on dolphin nettings.

A copy of the e-mail was provided to The Chronicle by Earth Island
Institute.

According to the e-mail, an American fisherman who worked aboard Mexican
tuna boats was interviewed by federal fisheries biologists. 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 e-mail noted that the observers weren't being bribed to ignore dolphin
deaths "...because they apparently have relatively few. ... They were
instead paid substantial sums of money to report their dolphin-caught tuna
as 'dolphin-safe' when they were actually being caught on dolphins."

On April 15, Judge Henderson called government arguments that the e-mail was
irrelevant to the rule "specious."

"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," Henderson wrote.

Maureen Rudolph, a U.S. Department of Justice attorney who represented the
Commerce Department in the case, said she could not comment on the matter
because it is being litigated. Justice Department spokesman Blain Rethmeier
said government attorneys are responding to Henderson's order and are
providing all documents relevant to the case.

Palmer of Earth Island had obtained the e-mail from Defenders of Wildlife,
another environmental group. The e-mail had been submitted by the government
as part of its documentation in its response to a separate lawsuit Defenders
of Wildlife had filed on tuna rules.

David Burney, executive director of the US Tuna Foundation, a group that
represents the interests of the American canned tuna industry, said the
possibility of corrupt observers "is extremely serious, and it's certainly
relevant to any review of the case. I would think it would have a real
bearing on what it means to be dolphin-safe, and ultimately (Commerce's)
position. It should make the government take a harder look at this."

Burney said American tuna processors support the more stringent definition
of dolphin-safe promoted by Earth Island Institute and other environmental
groups. "We absolutely will not buy dolphin-encircled tuna," he said. "It's
clear to us that U.S. consumers don't want it. I think any move in that
direction would cause a big outcry."

E-mail Glen Martin at glenmartin@sfchronicle.com.

©2004 San Francisco Chronicle

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