U.S. judge affirms tuna rules - rejects Bush dolphin standard

[Guest guest]

[unfortunately, efforts to stop the exploitation of circus animals failed

in yesterday's local Denver elections, but at least the dolphins one a round.

The following article comes from today's SF Chronicle. By the way, Federal

Judge Thelton Henderson, who decided the dolphin case, taught my administrative

law class in law school. Way to go, Thelton!]

 

SAN FRANCISCO

U.S. judge affirms tuna rules

He rejects Bush dolphin standard

 

Bob Egelko, Chronicle Staff Writer

 

 

 

 

 

--------

 

 

 

A federal judge has rejected the Bush administration's attempt to relax

the nation's " dolphin-safe'' tuna labeling standard in a scathing decision that

accuses the administration of sacrificing science -- and dolphins -- for

politics.

 

In 24 years on the bench, said U.S. District Judge Thelton Henderson of

San Francisco in a ruling made public Tuesday, he has never seen a record of

action by a government agency that " contained such a compelling portrait of

political meddling.''

 

Henderson said the Commerce Department disregarded its own scientists, who

found that international tuna fleets were probably responsible for killing

dolphins, and bowed to political pressure from the Mexican government and the

U.S. State Department, both eager to change the labeling standard and clear the

way for imports of Mexican tuna.

 

The judge noted that Secretary of State Colin Powell intervened personally

in December 2002, urging Commerce Secretary Donald Evans to change the labeling

standard. Evans ordered the change four weeks later.

 

Henderson also said the administration dragged its feet on research

required by federal law, then claimed that a lack of conclusive scientific

evidence on harm to dolphins justified loosening the dolphin-safe label. In

addition, Henderson said, the government brushed off evidence that observers on

Mexican tuna boats had been bribed to overlook the sometimes lethal practice of

setting nets on dolphins.

 

The ruling " exposes the Bush administration's deceit in ignoring its own

scientists and caving in to Mexican demands to allow dolphin-deadly tuna back

into the U.S. with a phony label,'' said David Phillips, director of Earth

Island Institute, the San Francisco organization that has fought successive

administrations on the issue for more than a decade.

 

Jim Milbury, spokesman for the National Marine Fisheries Service, said the

government was reviewing the ruling and declined further comment. The ruling

could be appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco,

which upheld Henderson's decision four years ago rejecting a similar labeling

change proposed by the Clinton administration.

 

The dolphin-safe label, in effect since 1990, is the focal point of a

longstanding controversy over species protection and international trade.

 

Dolphins swim above schools of tuna in the eastern tropical Pacific and

were drowning in tuna nets by the hundreds of thousands each year before

conservationists prevailed on Congress to intervene. Congress prohibited U.S.

fishing boats from dropping nets on dolphins in 1972, imposed the same standard

on foreign imports in the 1980s, and then adopted the dolphin-safe label for

tuna caught without using nets that trap dolphins.

 

Major U.S. brands sell only tuna labeled dolphin-safe, a practice that has

effectively banned imports from Mexico and other Latin American countries with

large tuna fleets. Those nations and the European Union joined the United States

in a conservation program in 1992 that has helped to drop reported dolphin

killings below 1,500 a year, but species depleted by the previous practices have

not regained their previous numbers.

 

A new law in 1997 allowed the dolphin-safe label to be extended to tuna

caught by nets that trap dolphins, if shipboard observers find that no dolphins

were actually harmed or killed -- and if the Commerce Department finds, after

conducting scientific studies, that tuna fleets' trap-and-release are not

harming dolphin species.

 

On the last day of 2002, Evans declared there was no conclusive evidence

that tuna boats were responsible for the failure of dolphin species to recover,

and ordered a change in labeling standards. But Henderson blocked the change in

April 2003 and ruled this week that the commerce secretary had abused his

authority.

 

" The record convincingly demonstrates that the secretary ... proceeded to

sacrifice the integrity of the decision-making process by disregarding the best

available scientific evidence in favor of political and diplomatic

considerations,'' Henderson said.

 

He cited evidence that:

 

-- The Commerce Department conducted only a small fraction of the tests

required by the 1997 law -- autopsies on dead dolphins and blood and skin tests

of living dolphins -- that were designed to determine whether the creatures were

dying from the stress and other effects of repeatedly being chased down and

netted. Evans then dismissed the test results as inconclusive.

 

-- The department professed optimism about recovery of the dolphin

population despite data showing that some species may never recover.

 

-- Shipboard observers' assessments, in which the Commerce Department

expressed great confidence, were unreliable. Henderson said the observers

apparently undercounted dolphin nettings and deaths. He also quoted a 1999 e-

mail from a U.S. government scientist who said he had learned that Mexican

observers were being paid as much as $10,000 to report falsely that no dolphins

had been trapped in tuna nets.

 

Despite the incomplete data, National Marine Fisheries Service scientists

had concluded by December 2002 that tuna fishing practices were the most likely

cause of the dolphin population's failure to recover. A few weeks later, Evans

overrode their findings.

 

E-mail Bob Egelko at begelko.