A dolphin and yellowfin tuna swim together
Final Court Victory for Dolphins
INTERNATIONAL MARINE MAMMAL PROJECT
The Winter/Spring 1995 Ocean Alert (formerly the Dolphin Alert) is an Earth Island Institute publication.
After nearly seven years of litigation, Earth Island Institute's and the
Marine Mammal Fund's lawsuit against the US Department of Commerce over
failure to follow the legal requirements of the Marine Mammal
Protection Act (MMPA) is finished. In November 1994, Chief Judge
Thelton Henderson of the US District Court for Northern California,
entered the final judgment in favor of EII and the Marine Mammal Fund.
The court also retained jurisdiction over the interpretation and
exaction of all issues regarding enforcement of the MMPA relating to
the tuna/dolphin fishery.
This case brought a stunning and unprecedented series of achievements
for dolphin protection. At the time the suit was filed, more than
100,000 dolphins were being killed every year by US and foreign tuna
fleets that were intentionally setting nets on dolphins to catch tuna.
Today, that dolphin kill has been reduced by more than 97 percent. When
we first went to court, there were 35 US tuna vessels using the deadly
technique of setting nets on schools of dolphins. Today there are
none.
This legal effort deserves considerable credit for these breakthroughs.
Highlights of the case include:
- In 1989, by court order, the US fleet was required to place a
federal observer aboard each vessel. This was instrumental in
providing, for the first time, accurate information on the level of the
dolphin kill. Without observers on every vessel, it would have been
impossible to implement dolphin protection measures such as the ban on
explosives used to herd dolphins into tuna nets.
- In an historic 1991 ruling, the court ordered embargoes be imposed
against the importation of tuna into the US from Mexico, Venezuela, and several other countries
that were killing dolphins at rates far above those allowed under US
law. Halting tuna imports from countries with massive dolphin kill
rates was critical to lowering foreign dolphin mortality rates. These
embargoes remain in place today.
- In 1992, Judge Henderson ruled that embargoes must be implemented
against "intermediary" countries, such as Italy and Japan, that
imported tuna from the embargoed countries and then exported tuna to
the US. This ruling was instrumental in preventing the laundering of
dolphin-unsafe tuna. Though these embargoes on intermediary nations are
still in place, they are threatened by a government appeal which will
be heard by the 9th Circuit Appellate Court. The government claims that
our suit on this issue should not have been heard by the District
Court, and must, instead, be brought before the Court on International
Trade.
- In 1994, EII won a court order that prohibits all setting of nets
on Northeastern offshore spotted dolphins. Scientific evidence shows
that this population has been severely depleted. Though this stock is
down to only 23 percent of its initial population, the National Marine
Fisheries Service (NMFS) took the position that a continued kill could
be allowed. Again, Judge Henderson ruled that the government's
arguments were wrong and that tuna fishers must stop all further
killing of this dolphin stock.
During the early years, EII's court battles were fierce because the federal agencies opposed full enforcement of the MMPA. On numerous occasions, Judge Henderson rebuked the US government for its contravention of the law. In response to the government's pleadings not to impose tuna import embargoes, Judge Henderson wrote, "Simply put, the continued slaughter and destruction of these innocent victims of the economics of fishing constitute an irreparable injury to us all and certainly to the mammals whom Congress intended to protect. Indeed, for those species now threatened with extinction, the harm may be irreparable in the most extreme sense of that overused term."
Without question, the future of dolphins is far brighter today than when EII first filed suit. Much credit is due to the fantastic team of lawyers at Heller, Ehrman, White, and McAuliffe, who handled this case for EII on a pro bono basis. During the nearly seven years of litigation, the dolphin team at Heller, et.al. has worked more than 8,000 hours on this case, totaling more than $1.4 million in time and costs. We are continuing our efforts before the courts to try to recover these fees from the government.
EII wishes to thank the following attorneys at Heller, et.al. who have worked on this case over the years: Josh Floum (lead counsel), Deborah Sivas, Elizabeth Robinson, Mike Charlson, Wayne Braveman, Wondie Russell, Helen Bendix, Robert Borton, Nicholas Van Aelstyn, Michelle Goldberg, Cynthia Koehler, Ted West, and Michael Bucci.
Ocean Alert - Winter / Spring 1995.
IMMP table of contents.
http://www.earthisland.org/immp/immp1.html