July 23, 2001

(San Francisco) The 9th Circuit Court of Appeals has, in a unanimous decision by the three-judge panel, upheld Judge Thelton Henderson's decision in "Brower v. Daley", which maintains the current strong standards for the "Dolphin Safe" label on tuna cans - no chasing and netting of dolphins.

"This is a tremendous victory for dolphins and for U.S. consumers," stated Mark J. Palmer, Assistant Director of Earth Island Institute's International Marine Mammal Project, one of the plaintiffs in the case. "It is also a serious defeat for the U.S. State Department in their efforts to mislead consumers on behalf of a handful of Mexican tuna millionaires in the name of free trade."

The finding by Secretary of Commerce Richard Daley in 1999 to weaken the "dolphin safe" label standards was "contrary to law and an abuse of his discretion," according to the 9th Circuit decision. "…(A)ll of the evidence indicated that dolphins were adversely impacted by the fishery."

The successful lawsuit, filed by Josh Floum, Esq., and Ariela St. Pierre, Esq., of Legal Strategies Group of Emeryville, CA, contended that the U.S. Commerce Secretary's decision, which claimed that the chasing and netting of millions of dolphins in tuna nets is not causing significant adverse impacts on depleted dolphin populations, was arbitrary and capricious, and illegally ignored research supplied by the Commerce Department's own scientists. Earth Island and other groups, who developed the "Dolphin Safe" label in 1990, charged that the Clinton/Gore Administration's weakening of U.S. dolphin protection laws to accommodate tuna millionaires in Mexico and other countries in the name of free trade would result in more dolphin deaths.

It is unclear how the new Bush Administration will handle this issue in the future.

Earth Island Institute, nine other environmental groups, and 87-year-old environmental activist David R. Brower (who died last fall) filed the lawsuit last August in U.S. Federal District Court in August 1999 to overturn the decision by the government to weaken the "Dolphin Safe" label on American tuna cans. Additional plaintiffs included biologist and dolphin activist Samuel LaBudde, Humane Society of the United States, American Society for the Prevention of Cruelty to Animals, Defenders of Wildlife, International Wildlife Coalition, Animal Welfare Institute, Society for Animal Protective Legislation, Animal Fund, Oceanic Society, and Environmental Solutions International.

Before the illegal finding by the Commerce Secretary, the "dolphin safe" label could only be used for tuna caught without any chasing and netting of dolphins. Tuna fishermen in the Eastern Tropical Pacific (ETP) target dolphins because tuna often swim below dolphins. More than 7 million dolphins have been drowned in tuna nets over the past 4 decades. But since 1990 and the advent of the "dolphin safe" tuna program, dolphin deaths have decreased by 98% in the ETP.

However, on April 29th, 1999, U.S. Commerce Secretary William Daley ruled, contrary to all available scientific information, that chasing and netting dolphins by the tuna industry does NOT cause significant adverse impacts. This action automatically weakened the standards by which tuna is judged to be "dolphin safe", instead allowing chasing, harassing, netting, injuring, and even killing of dolphins when catching tuna, so long as an on-board observer claims he did not see dolphins killed outright or "seriously injured."

Federal scientists have determined that dolphin populations in the ETP are not recovering as expected, even with the dramatically lower reported kills of recent years. Harassment of dolphins by tuna fishermen and problems arising from the consequent physiological stress (some dolphin schools are chased and netted as often as three times in one day) are likely factors which cause harm to dolphin health and reproduction. Many dolphins suffer injuries in the nets and die after release, but are not counted by the on-board observer. Mothers are separated from calves, and undercounting may be occurring on board some Mexican tunaboats.

"Dave Brower fought all his life for the protection of wild animals and wild places," noted Palmer. "We are proud that his legacy lives on in this humane and powerful court decision for the dolphins!"