April 28, 2007 / 2:52 AM / in 11 years

U.S. can't alter 'dolphin-safe' tuna rules -court

(Adds reaction, paragraphs 13-14)

By Adam Tanner

SAN FRANCISCO, April 27 (Reuters) - The U.S. government has arbitrarily and capriciously sought to ease rules for foreign fisherman on "dolphin-safe" tuna, a U.S. federal appeals court ruled on Friday in upholding current standards.

The decision by the 9th U.S. Circuit Court of Appeals was the latest in a long dispute on what tuna sold in the United States can be labeled "dolphin safe" -- a designation that means tuna is fished using practices that protect dolphins.

Previous such decisions angered Mexican and South American fishing industries.

The dispute involves the use of huge "purse seine" nets, which fisherman have used since the late 1950s to boost their capture of tuna swimming beneath dolphins. The nets get their name as they can be closed like a drawstring purse.

Dolphins, which are air-breathing mammals, can be easily spotted by fishermen when they surface for air.

As decades of such fishing dramatically lowered the numbers of certain species of dolphins, the U.S. Congress enacted a law in 1990 that said companies could not market tuna as "dolphin-safe" if they caught the fish by purposely surrounding dolphins with the nets.

Worrying they could be shut out of the U.S. tuna market, officials in Latin America have since lobbied for a less stringent rule that would allow the "dolphin-safe" label if observers on the foreign boats had not seen dolphins killed or seriously injured.

The U.S. secretary of commerce has backed the rule change, but the 9th Circuit, reaffirming its 2001 ruling on the issue, said the U.S. effort was not based on proper scientific analysis on the impact to dolphins and was politically influenced. In the ruling, the court deemed the secretary’s findings "arbitrary and capricious."

FOREIGN POLICY CONSIDERATIONS

"This evidence shows that the agency’s decision-making process, which was devised to conduct a scientific analysis of the fishery’s effect on dolphins, was influenced to at least some degree by foreign policy considerations rather than science alone," Chief Judge Mary Schroeder wrote for a three-judge panel.

The San Francisco-based Earth Island Institute and other environmental groups have led the litigation against the U.S. government and Latin American fishing interests in the case.

"As a practical matter ... there will be no change in tuna labeling standards absent new congressional directive," the court ruling said. "The label of ‘dolphin-safe’ will continue to signify that the tuna was not harvested with purse-seine nets, and that no dolphins were killed or seriously injured when the tuna were caught."

The court said such fishing practices had killed more than 6 million dolphins.

The U.S. Commerce Department’s National Oceanic & Atmospheric Administration’s Fisheries Service, expressed disappointment in the decision.

"The United States has been at the forefront of international efforts to protect dolphins in tuna fisheries, and we are proud of our role in negotiating international agreements that have led to a dramatic drop in the number of dolphins caught in tuna gear," it said.

According to the Earth Island Institute, more than 90 percent of tuna canners in 51 countries worldwide follow "dolphin-safe" standards.

"This is a total victory for dolphin protection and for a ‘Dolphin Safe’ tuna label that can be trusted," David Phillips, director of Earth Island Institute’s International Marine Mammal Project, said in a statement. "The pressure from the State Department and the Mexican government to gut dolphin protections were enormous."





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