Protecting Dolphins in the Congress and the Courts

On January 9, 2003, Senator Barbara Boxer of California introduced a new bill to Congress that would preserve the original definition and intent of the dolphin-safe label on canned tuna fish, a label she presented in 1989. S. 130, Senator Boxer's "Truth in Labeling Act of 2003," would render moot the efforts of both the Clinton and Bush administrations to gut popular dolphin protection measures that prevent any can of tuna from being sold in the United States if it was obtained by using dolphins as targets to set tuna nets. In Boxer's own words, "My bill will guarantee that tuna products labeled 'dolphin safe' will be truly safe for dolphins."

Secretary of Commerce Don Evans issued a finding on the last day of 2002 that ignored the information from his own scientists and declared that setting nets on dolphins to catch the tuna below does not constitute "significant adverse impact." Senator Boxer countered, "This flies in the face of all available scientific information." If upheld in court, Secretary Evans' finding would pave the way for tuna caught by encircling dolphins in nets to be fraudulently sold as "dolphin safe."

But the courts seem to agree with the good Senator from California. On April 10, 2003, San Francisco Judge Thelton Henderson issued a preliminary injunction preventing the weakening of the dolphin safe label, responding to a suit brought by Earth Island Institute, Animal Welfare Institute, the Society for Animal Protective Legislation, and others. Judge Henderson concluded that we "have raised a serious question as to the integrity of the Secretary's decision-making process."

The final judgment of the court is still pending, but in issuing the injunction, Judge Henderson asserted that we are likely to prevail in our claim that the Secretary's finding did not use the best available science, an action he called "an abuse of discretion." Current evidence strongly supports the long-held belief that dolphin populations continue to decline in the Eastern Tropical Pacific and that the culprit is the continuing targeting of these dolphins for tuna. In fact, he notes that if "indirect effects of the purse seine fishery are causing a significant adverse impact on depleted dolphin stocks-as the evidence presented indicates is likely-an immediate change in the dolphin safe label will likely cause irreparable injury to dolphins because it will no doubt increase the number of sets on dolphins."

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