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International Marine Mammal Project

Congress Passes Conflicting Military Exemptions - Plus Court Blocks Bush's Dolphin Safe Label, Six Flags Fails to Get Orca, and Maui Bans Captive Cetacean Displays


International Marine Mammal Project

Congress passes conflicting military exemptions
As of this writing, the US Senate and the House of Representatives have passed different versions of the National Defense Authorization Act, with different versions of the Pentagon's cherished exemptions from environmental laws. All in all, what passed was not good, but due to heroic efforts by environmental groups in DC and effective grassroots activism, the Pentagon lost exemptions from major pollution and health laws.

The House version, passed on May 23, 2002, is by far the worse bill. The House did act to strip amendments placed in the bill by the reactionary majority of the House Resources Committee and its new chairman, Rep. Richard Pombo (R) of Stockton, CA. Oddly enough, the author of the amendments to "fix" the Pombo mess was his fellow California Republican, Rep. Duncan Hunter of the San Diego area.

But the House did leave in other bad amendments. The Marine Mammal Protection Act (MMPA) "small take" permit process, currently limited to small numbers of marine mammals in restricted geographic areas, would be broadened for anyone, so there would no longer be numerical or geographical limits to the government issuing a "small take" permit. Also, the House version retained the provision proposed by the Pentagon to allow Defense Secretary Rumsfeld and his successors to exempt the military from the MMPA for any reason.

The House version of the Defense Authorization Bill further exempts military lands from consideration as critical habitat under the ESA, and exempts the Navy and other military agencies from the MMPA in several important ways. It does not include other exemptions sought by the military for other environmental laws (Clean Air Act, Superfund law, etc.), nor does it expand the exemptions to other federal agencies and industries, as the House Resources Committee leadership wanted.
Unfortunately, the House Rules Committee, controlled by the Republican majority, refused to allow any environmental amendments to the Defense Authorization Bill on the floor except for Rep. Hunter's amendment.

The Senate passed its own version of the Defense Authorization Bill on May 22, 2002, leaving out everything except the exemption of military lands from the critical habitat designations of the Endangered Species Act. The original version would have replaced ESA's critical habitat designation with a much weaker designation for use on military lands. Environmental groups won an amendment putting some legal teeth back into the military's wildlife habitat plans.

Both bills give President Bush the authority to begin developing and testing "bunker busting" small nuclear weapons, ending a US moratorium on development of new nuclear weapons.

Over the next few weeks, a Conference Committee consisting of House and Senate members will reconcile the two bills. If the Conference Committee reaches agreement, the House and Senate will take an up-or-down vote on the Conference version of the bill. Observers believe the Republican-controlled Congress will try to reach agreement and send a final Defense Authorization Bill to the President for his signature by July 4.

The Defense Authorization Bill is a fiscal bill to fund the continuing programs of the Pentagon. As such, it is a "must pass" bill for Congress and cannot be filibustered. As a result, Republicans have taken advantage of the bill to attack unrelated environmental laws in the false name of "national security."

-- Mark J. Palmer

Court blocks Bush dolphin safe label
On December 31, 2002, Secretary of Commerce Donald Evans attempted to gut the meaning of "Dolphin Safe" by allowing Mexico and other countries to label their canned tuna as "Dolphin Safe," despite their continuing practice of chasing and netting dolphins to catch the tuna that swim beneath them. More than seven million dolphins have been killed by this fishing technique since the use of purse seine nets was developed in the late 1950s. Earth Island Institute, with eight other environmental groups and one individual, immediately initiated a lawsuit (Earth Island Institute v. Evans) to oppose Evans's efforts. Plaintiffs in the dolphin case are: EII, Humane Society of the United States, American Society for the Prevention of Cruelty to Animals (ASPCA), Defenders of Wildlife, International Wildlife Coalition, Animal Welfare Institute, Society for Animal Protective Legislation, Animal Fund, Oceanic Society, and Samuel LaBudde.

The plaintiffs scored two important legal victories for dolphins when federal Judge Thelton Henderson issued a preliminary injunction preventing the Bush administration from weakening the strong standards for the "Dolphin Safe" tuna label by ruling to keep Mexican and Venezuelan tuna industries from intervening in the lawsuit.

In granting the injunction, Judge Henderson stated: "this Court concludes that plaintiffs have (1) raised a serious question as to whether the Secretary relied on factors which Congress did not intend it to consider, and (2) shown that they are likely to succeed on their claim that the final finding is contrary to the best available scientific evidence..."

"This is a victory for dolphins, and a good start for our lawsuit," says David Phillips, director of IMMP. "We can now go to trial over the next few months knowing that the integrity of the 'Dolphin Safe' tuna label will be protected by this injunction."

Phillips adds: "The Administration's own scientists have shown that the fishing practice is a disaster for dolphins. This is no more than a political gift to Mexico and other fishing nations that continue to chase and harm dolphins at the expense of dolphin lives. If this decision by the Bush administration were allowed to go into effect, some irresponsible tuna fishing companies would deliberately target thousands of baby dolphins each year, leading to death from starvation and predators. We cannot allow that to occur."

Judge Henderson also issued a second ruling preventing Mexican and Venezuelan tuna industry millionaires from intervening in the "Dolphin Safe" tuna label lawsuit. In an extensive opinion, Judge Henderson determined that the economic interest of Mexican and Venezuelan tuna industries in selling tuna in the US was not sufficient to allow their entering the case, and that the Bush administration was adequately representing their interests in weakening the "Dolphin Safe" tuna label standards.

"We believe the Mexican and Venezuelan tuna industry have already had too much political influence on the Bush administration," says Phillips. "Their only interest is in selling tuna in the US, and they know they cannot sell it here unless they falsely claim it is 'Dolphin Safe.' Judge Henderson rightly has kept them out of the case due to their lack of any scientific or environmental interest."

"This decision means that the case will proceed to trial more quickly," says Josh Floum of San Francisco's Holme Roberts & Owen, lead counsel for the plaintiffs. "Judge Henderson properly recognized that economic interests alone do not allow Mexican and Venezuelan fishing companies to intervene in this case. The statute at issue is about protecting dolphins and providing truth in labeling for the American consumer. It is not about advancing commercial fishing interests," Floum adds. "This is particularly true because the United States fleet is truly 'Dolphin Safe,' and our foreign counterparts should be held to the same standard."

Six Flags fails to get orca
After a long and intense evaluation, the government of Argentina has finally agreed to oppose transfer of Kshamenk, an Argentinian juvenile male orca, to an amusement park in Aurora, Ohio.

The Wild Earth Foundation (WEF), the Patagonia company, IMMP, and several other organizations worldwide have been working to block Kshamenk's transfer since November 2001, when Six Flags Funtime Inc. applied to the National Marine Fisheries Service (NMFS) for permission to import him. NMFS issued the import permit in May 2002.

Eminent marine mammal scientists from the Argentinian Museum of Natural Science (Buenos Aires) and from the National Patagonic Research Center (Puerto Madryn) told the Secretary of Environment that they found no scientific value in the breeding loan agreement between Six Flags and Mundo Marino.

Kshamenk was reportedly "rescued" from a stranding by Mundo Marino, the facility that has custody of the animal. After attempts at rehabilitation, Kshamenk was enlisted to perform shows, and as the bull in a reproductive program -- which failed when his mate died after a miscarriage.

The circumstances surrounding the "rescue" remained unclear until the organizations collected evidence strong enough to make the Argentinian authorities doubt the legality of Kshamenk's collection. An Argentinian regulation, in effect since 1986, forbids the export of wild indigenous fauna, and wild animals are considered by the National Constitution to be commonweal, belonging to the State and to all Argentinian people. Thus, as a whale not born in captivity, Kshamenk cannot be privately owned nor be used for profit.

"I'm proud of the decision adopted by CITES Argentina and the Secretariat of Environment that supports Argentina's policies of protecting whales, dolphins, and other marine species," says Gabriela Bellazzi, WEF's president. The environmental authorities of my country are efficient, responsible and open-minded, and took into account the arguments of scientists and organizations while NMFS ignored us all."

Now that the Argentinian government has denied the export permit for the second time, the organizations expect to help Kshamenk's reintroduction into his native Argentinian waters.
"This insidious trade in orcas is finally coming close to its end. These magnificent marine mammals deserve only freedom with their families, not suffering as circus clowns. We now have hope that Kshamenk's fate will follow that of Keiko," says Mark Berman, IMMP's assistant director.

Maui bans captive cetacean displays
The County Council of Maui recently made the Hawai'ian county the 17th city or county in the United States to ban displays of captive cetaceans.

"The Council finds that cetaceans (dolphins and whales) are highly intelligent -- and highly sensitive -- marine mammals," the legislation prohibiting the displays states. "The Council further finds the presence of cetaceans in the Pacific Ocean surrounding Maui County provides many cultural, spiritual, and economic benefits to the County's residents. The Council also finds that the exhibition of captive cetaceans leads to distressed living conditions for these animals. Therefore, the purpose of this ordinance is to prohibit the exhibition of captive cetaceans."

Violators are subject to imprisonment for not more than one year and fines of as much as $1,000.
Hundreds of letters and a petition signed by more than 15,000 individuals calling for the ban had been received by the members of the Council.
"This matter received more public support than any other matter in the history of Maui County," said Council member Jo Anne Johnson.

"Maui will now be recognized as a place where whales and dolphins will all live free and in the wild," said Council member Alan Arakawa. "This decision proves we can do what is right."


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