We told you it was fraud... Now the Court agrees

By Ben White

On July 23rd, the Ninth Circuit Court of Appeals in San Francisco unanimously ruled that the Secretary of Commerce abused his discretion in 1999 when he declared that setting nets on dolphins to catch tuna did not constitute a "significant adverse impact" (even though more than seven million dolphins have died through this technique). Left unchallenged, the Secretary's ruling would have allowed tuna caught by chasing dolphins to be sold as "dolphin safe," gutting the definition of the label now found on every can of tuna sold in the United States.

The Animal Welfare Institute joined Earth Island Institute and other groups in a legal challenge arguing the Secretary's ruling was arbitrary and capricious. The Court decision is just the latest victory in the tuna/dolphin battle.

By 1972, the numbers of dolphins dying in tuna nets could no longer be ignored. The American people demanded, and Congress enacted, the Marine Mammal Protection Act. Two decades later, the 1992 International Dolphin Conservation Act banned the US sale of tuna obtained by netting dolphins. But the Mexican fleet, still chasing dolphins off their coast, raised the flag of free trade and complained to the Clinton White House. A bill to allow setting on dolphins and defraud the public by changing the definition of the "dolphin safe" label, dubbed the "Dolphin Death Act," was signed into law in 1997.

We are delighted the Court has blown the whistle on the Secretary's ruling.

The deadly effects of the Dolphin Death Act still linger. On August 8th, a National Marine Fisheries Service (NMFS) research vessel set sail to meet up with a contracted tuna boat and search out one of the highly beleaguered pods of dolphins.

Dolphins will be surrounded by nets and captured. A telemetry device will be bolted through their dorsal fins, blood will be taken, and the dolphins released. Then they will be caught again and again. Blood samples will be compared to see if stress-related hormones increase with repeated captures.

AWI has fought to stop this unnecessary and cruel experiment. Over two years ago, we presented an alternative proposal to NMFS, drafted with the help of Dr. Al Myrick. In our counter-proposal, only dolphins already involved in an ongoing tuna fishery would be studied. Only those found comatose in the nets would have blood taken. There would be no repeated captures or intentional stressing of dolphins.

Senior NMFS scientists reviewed our alternative and agreed with its point: the capture study would yield no new information and would be a huge waste of money. They recommended that the study be rejected.

At this point, Nina Young of the Center for Marine Conservation weighed in. (CMC, now called the Ocean Conservancy, is one of the five groups that split from the environmental community, and common sense, and backed the Dolphin Death Act.) She convinced staffers in the offices of Congressmen Wayne Gilchrest (R, MD) and Randy "Duke" Cunningham (R, CA) to write to the scientists at NMFS and insist that they obey the letter of the Act that mandated a capture, recapture stress study. These letters bullied NMFS into directing the scientists to proceed. So now, the scientists are reluctantly conducting a multi-million dollar study to harm dolphins for no good reason.

A recent population abundance survey found the two hardest-hit populations-Northeast Offshore Spotted Dolphins and the Eastern Spinner Dolphins-have not recovered at all from years of pursuit.

The results of a necropsy study are chilling. Of nineteen dead dolphins dissected and studied, all show striations in their hearts caused by the tearing and subsequent mending of muscle from the stress of repeated captures.

The Court of Appeals has ruled that the Secretary of Commerce must issue a final ruling one way or another as to whether the chasing and netting of dolphins causes "significant adverse impact." The Federal Government cannot just keep studying the matter. All of the evidence from the necropsies, the abundance surveys, and the literature search shows that the damage done to the dolphins is both significant and adverse, making the capture and recapture experiment not only cruel but also redundant.

CAPTION: Despite laws to the contrary, dolphins are still being chased and caught in huge nets by foreign boats fishing for tuna and by US research vessels.

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