[Unfortunately, efforts to stop the exploitation of circus animals failed in yesterday's local Denver elections, but at least the dolphins one a round. The following article comes from today's SF Chronicle. By the way, Federal Judge Thelton Henderson, who decided the dolphin case, taught my administrative law class in law school. Way to go, Thelton!]
U.S. judge affirms tuna rules
He rejects Bush dolphin standard
Bob Egelko, Chronicle Staff Writer
A federal judge has rejected the Bush administration's attempt to relax the nation's "dolphin-safe'' tuna labeling standard in a scathing decision that accuses the administration of sacrificing science -- and dolphins -- for politics.
In 24 years on the bench, said U.S. District Judge Thelton Henderson of San Francisco in a ruling made public Tuesday, he has never seen a record of action by a government agency that "contained such a compelling portrait of political meddling.''
Henderson said the Commerce Department disregarded its own scientists, who found that international tuna fleets were probably responsible for killing dolphins, and bowed to political pressure from the Mexican government and the U.S. State Department, both eager to change the labeling standard and clear the way for imports of Mexican tuna.
The judge noted that Secretary of State Colin Powell intervened personally in December 2002, urging Commerce Secretary Donald Evans to change the labeling standard. Evans ordered the change four weeks later.
Henderson also said the administration dragged its feet on research required by federal law, then claimed that a lack of conclusive scientific evidence on harm to dolphins justified loosening the dolphin-safe label. In addition, Henderson said, the government brushed off evidence that observers on Mexican tuna boats had been bribed to overlook the sometimes lethal practice of setting nets on dolphins.
The ruling "exposes the Bush administration's deceit in ignoring its own scientists and caving in to Mexican demands to allow dolphin-deadly tuna back into the U.S. with a phony label,'' said David Phillips, director of Earth Island Institute, the San Francisco organization that has fought successive administrations on the issue for more than a decade.
Jim Milbury, spokesman for the National Marine Fisheries Service, said the government was reviewing the ruling and declined further comment. The ruling could be appealed to the Ninth U.S. Circuit Court of Appeals in San Francisco, which upheld Henderson's decision four years ago rejecting a similar labeling change proposed by the Clinton administration.
The dolphin-safe label, in effect since 1990, is the focal point of a longstanding controversy over species protection and international trade.
Dolphins swim above schools of tuna in the eastern tropical Pacific and were drowning in tuna nets by the hundreds of thousands each year before conservationists prevailed on Congress to intervene. Congress prohibited U.S. fishing boats from dropping nets on dolphins in 1972, imposed the same standard on foreign imports in the 1980s, and then adopted the dolphin-safe label for tuna caught without using nets that trap dolphins.
Major U.S. brands sell only tuna labeled dolphin-safe, a practice that has effectively banned imports from Mexico and other Latin American countries with large tuna fleets. Those nations and the European Union joined the United States in a conservation program in 1992 that has helped to drop reported dolphin killings below 1,500 a year, but species depleted by the previous practices have not regained their previous numbers.
A new law in 1997 allowed the dolphin-safe label to be extended to tuna caught by nets that trap dolphins, if shipboard observers find that no dolphins were actually harmed or killed -- and if the Commerce Department finds, after conducting scientific studies, that tuna fleets' trap-and-release are not harming dolphin species.
On the last day of 2002, Evans declared there was no conclusive evidence that tuna boats were responsible for the failure of dolphin species to recover, and ordered a change in labeling standards. But Henderson blocked the change in April 2003 and ruled this week that the commerce secretary had abused his authority.
"The record convincingly demonstrates that the secretary ... 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.
He cited evidence that:
-- The Commerce Department conducted only a small fraction of the tests required by the 1997 law -- autopsies on dead dolphins and blood and skin tests of living dolphins -- that were designed to determine whether the creatures were dying from the stress and other effects of repeatedly being chased down and netted. Evans then dismissed the test results as inconclusive.
-- The department professed optimism about recovery of the dolphin population despite data showing that some species may never recover.
-- Shipboard observers' assessments, in which the Commerce Department expressed great confidence, were unreliable. Henderson said the observers apparently undercounted dolphin nettings and deaths. He also quoted a 1999 e- mail from a U.S. government scientist who said he had learned that Mexican observers were being paid as much as $10,000 to report falsely that no dolphins had been trapped in tuna nets.
Despite the incomplete data, National Marine Fisheries Service scientists had concluded by December 2002 that tuna fishing practices were the most likely cause of the dolphin population's failure to recover. A few weeks later, Evans overrode their findings.
E-mail Bob Egelko at begelko@...
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