Dolphin Safe Tuna Label Upheld in Federal Court

Dolphin Safe Tuna Label Upheld
in Federal Court

Victory at Sea
David Brower leaves a legacy for dolphins

by Mark J. Palmer <>
10 Jan 2002

The one-year anniversary of the death of environmental legend David Brower
has come and gone, just a week after the U.S. Department of Justice decided
not to appeal a dolphin protection lawsuit the Earth Island Institute filed
with Dave back in 1999.

For reasons that are still unknown, a small portion of the world's tuna swim
with dolphins in the Eastern Tropical Pacific Ocean. Ever since the late
1950s introduction of mile-long purse seine nets, fishing fleets have
deliberately chased and netted dolphins in order to catch the tuna swimming
beneath, resulting in the death of an estimated seven million dolphins over
the past four decades.

In 1990, after several years of tuna boycotts and save-the-dolphins
demonstrations, Earth Island Institute reached an agreement with U.S. tuna
processing companies stating that all tuna caught and sold would henceforth
be "dolphin-safe." The dolphin-safe label on tuna cans in the United States
and Europe means no dolphins were chased or netted during catch operations,
nor were any killed or injured.
A purse seine net reels in the catch.

But five years later, former President Clinton and former Vice President Al
Gore, in their heady promotion of "free trade," promised Mexico's government
(at the behest of a handful of Mexican tuna millionaires) that the
restrictions on Mexican tuna imports would be dropped. (The majority of
Mexico's tuna fleet continues to chase, net, and kill dolphins.)

The Clinton administration proposed weakening the standards for the
dolphin-safe label to an absurd degree: If an observer aboard the fishing
vessel didn't see any dolphins die outright, then the tuna could be
considered "dolphin-safe." Sort of like claiming that Russian Roulette is
safe for children, as long as a bullet doesn't happen to be in the firing

After a tough legislative fight, Congress decided in 1997 that the
administration should base tuna label standards on science, not trade
politics. However, despite studies by government scientists showing that
dolphin populations were still being depleted in fishing areas, Clinton's
commerce secretary, William Daley, decided that the research did not
absolutely "prove" that fishing was the cause of the continued lack of
recovery for dolphins. And so he administratively weakened the dolphin-safe
label standards, which was what Mexico's ruthless tuna millionaires wanted
in the first place. Earth Island sued.

David Brower, then chair of Earth Island, was our lead plaintiff. Although
he was 86-years-old, Dave came to a press conference in front of the San
Francisco federal courthouse when we filed the case, "David R. Brower v.
William Daley." Dave told me that he had only met a dolphin once in his
life. It was a wild dolphin in Florida that came up to the boat docks to get
fish from the locals. Dave spent some time tossing a ball to the dolphin,
and the dolphin spent some time tossing it back to Dave. Dave said he was
never sure whether he or the dolphin was in charge of the game.

In March 2000, federal Judge Thelton Henderson, who has heard several
previous Earth Island dolphin cases, agreed with our lawyers and issued an
opinion preventing the weakening of the dolphin-safe tuna label.

The Clinton administration met behind closed doors with the Mexican tuna
industry and the Mexican government. (Earth Island and our allies were
refused attendance.) They agreed to appeal "Brower v. Daley" to the 9th U.S.
Circuit Court of Appeals.

Dave Brower passed away about six weeks before the arguments were heard on
appeal before a three-judge panel. In July 2001, the appeals court issued
its decision: All three judges agreed with Earth Island and Judge Henderson.
The government's proposal to weaken the dolphin-safe label standards was, in
their words, "arbitrary and capricious." Since the government has decided
not to appeal to the Supreme Court, "Brower v. Daley" (now known as "Brower
v. Evans") will stand as law, a potent precedent that free trade cannot come
at the expense of wildlife.

So I suppose a new maxim is in order for Dave and the dolphins: Old
environmentalists may die, but they never lose their appeal.
- - - - - - - - -

Mark J. Palmer is assistant director of the International Marine Mammal
Project of Earth Island Institute, which was founded by David Brower in


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