*EPF306 08/11/2004
Federal Court Rejects U.S. Change in Dolphin-Safe Tuna Labeling
(International conservation agreement facing potential challenge) (730)

By Bruce Odessey
Washington File Staff Writer

Washington -- A federal U.S. court in California has struck down the Bush administration's decision changing the definition for dolphin-safe tuna can labels, posing potential problems for an international agreement aimed at reducing dolphin kills.

"We are very disappointed in the ruling of the 9th Federal District Court on the dolphin-safe tuna issue," a U.S. Department of Commerce spokeswoman said August 11.

Whether the administration would appeal the decision is not yet known.

According to published reports, U.S. District Court Judge Thelton Henderson in San Francisco used scathing language in his opinion issued August 10 criticizing not only Secretary of Commerce Don Evans for the way he made the decision but also Secretary of State Colin Powell for the way he tried to influence the decision.

Before Evans' 2002 decision, only tuna harvested without setting nets over dolphins could carry the dolphin-safe label on cans. After the decision, the label applied even if dolphins were netted so long as no dolphin kills were observed. After the judge's ruling the earlier definition applies again.

At issue is a 1997 law authorizing relaxation of the U.S. standard for dolphin-safe labeling if certain conditions were met.

For decades fishing boats slaughtered hundreds of thousands of dolphins a year in the eastern tropical Pacific by setting nets over them in order to harvest the stocks of yellowfin tuna sheltering below.

Conservation measures taken under U.S. law over years starting in 1972 sharply reduced the slaughter. The United States first prohibited U.S. fishing fleets from setting nets on dolphins and later prohibited imports from countries that allowed their fleets to employ the practice.

Other countries with fishing fleets harvesting eastern Pacific yellowfin, especially Mexico, objected to the U.S. import ban. Following years of negotiation, an agreement reached in the Inter-American Tropical Tuna Commission (IATTC) allows participating country tuna fleets to set nets on dolphins if they follow practices for reducing harm to dolphins. It requires independent observers aboard each vessel to report dolphin kills to the IATTC. In return it obligates the United States to relax its dolphin-safe label definition.

Dolphin mortality has plunged to fewer than 2,000 kills a year under those measures, according to the Commerce Department.

The 1997 U.S. law implementing the IATTC agreement authorizes relaxing the label requirements only after scientific research showed that setting nets on dolphins and then releasing them posed no harm to dolphins. In December 2002, Commerce Secretary Evans relaxed the requirements, reopening U.S. markets to yellowfin imports.

Environmental groups, led by Earth Island Institute, immediately challenged Evans' decision in court. Judge Henderson has ruled against the government, prohibiting the change in the dolphin-safe definition.

Henderson reportedly faulted the Commerce Department for conducting too little scientific research and for relying on onboard observer reports that have been tainted by charges of bribery -- Mexican observers had allegedly been paid up to $10,000 for reporting they saw no dolphin kills.

He reportedly criticized Secretary of State Powell for what he called "political meddling" in seeking to influence Commerce Secretary Evans' 2002 decision.

"The record convincingly demonstrates that the secretary [Evans] proceeded to sacrifice the integrity of the decision-making process by disregarding the best available scientific evidence in favor of political and diplomatic considerations," Henderson said.

The Commerce Department statement defended the 2002 decision.

"We stand behind the science that supported our final decision to allow dolphin-safe labeling on tuna imports caught by purse seine gear, as long as no dolphin deaths were observed during the catch," the Commerce spokeswoman said.

"This international tuna program is the best way the United States can support dolphin conservation on a global scale," she said, "and we are currently considering appropriate options to address this decision."

A State Department official testified before Congress in April that he was "quite worried" about the consequences if a court overturned Evans' decision. Many countries that have invested heavily in equipment to protect dolphins with the expectation of selling in the U.S. market could simply abandon their conservation commitment, he indicated.

One of those countries, Mexico, has in the past threatened to bring a World Trade Organization challenge against U.S. yellowfin import restrictions.

(The Washington File is a product of the Bureau of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)

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