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BROWER v. DALEY

April 11, 2000

DAVID R. BROWER, ET AL., PLAINTIFFS,
V.
WILLIAM DALEY, SECRETARY OF COMMERCE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henderson, District Judge.

CORRECTED MEMORANDUM AND ORDER

On April 29, 1999, the Secretary of Commerce issued an "initial finding" that "there is insufficient evidence that chase and encirclement by the tuna purse seine fishery `is having a significant adverse impact' on the depleted dolphin stocks in the [Eastern Tropical Pacific Ocean]." 64 Fed.Reg. 24,590 (1999). David Brower, Earth Island Institute, The Humane Society of the United States, and other individuals and organizations (collectively "plaintiffs"), challenge the validity of this finding under the Administrative Procedures Act ("APA"), 5 U.S.C. § 706(2). Plaintiffs also assert that defendants failed to comply with their obligations under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq., prior to issuing the April 29, 1999 initial finding.

This matter came before the Court on Monday, April 3, 2000, on plaintiffs' and defendants' simultaneous cross-motions for summary judgment, and plaintiffs' alternative motion for a preliminary injunction. Having carefully considered the parties' written and oral arguments and the administrative record, the Court grants plaintiffs' motion for summary judgment with respect to their claim under the APA. The Secretary's initial finding shall be set aside until such time as the Secretary has an opportunity to consider preliminary results from the Congressionally mandated stress research studies. In addition, the Court grants defendants' motion for summary judgment on plaintiffs' NEPA claim, and denies plaintiffs' motion for preliminary injunction as moot.

I BACKGROUND

In order to place the instant dispute in context, it is necessary to set forth a number of preceding events. Beginning in 1959, fishermen in the Eastern Tropical Pacific Ocean ("ETP")*fn1 began widely using purse seine nets to catch yellowfin tuna that tend to congregate under schools of dolphin. Earth Island Institute ("EIS") v. Brown, 865 F. Supp. 1364, 1366 (N.D.Cal. 1994). "In this process, referred to as `setting on dolphins,' the air-breathing dolphins are intentionally chased and deliberately encircled in the nets in order to catch the yellowfin tuna which may be below." EIS v. Mosbacher, 746 F. Supp. 964, 967 (N.D.Cal. 1990). These large nets are maneuvered around the fish by means of floats and weights and are then closed like a purse upon the fish trapped inside. Id. at 966. Between 1959 and 1972 millions of dolphins were entangled and killed in purse seine nets. EIS v. Brown, 865 F. Supp. at 1366.

In 1972, Congress enacted the Marine Mammal Protection Act ("MMPA") to protect dolphins in the ETP. See e.g. Committee for Humane Legislation, Inc. v. Richardson, 540 F.2d 1141, 1148 (D.C.Cir. 1976) (MMPA to be administered for the benefit of the protected species); 16 U.S.C. § 1361 (Congressional finding "that [dolphins] should not be permitted to diminish below their optimum sustainable population. Further measures should be immediately taken to replenish any species or population stock which has already diminished below that population"). Pursuant to the MMPA, the National Marine Fisheries Services ("NMFS") has found that three stocks of dolphins in the ETP are below their "optimum sustainable population" ("OSP"), and are thus "depleted": the coastal dolphin, see 42 Fed.Reg. 64,548-60 (1977), the northeastern offshore spotted dolphin, see 58 Fed.Reg. 58,285 (1993), and the eastern spinner dolphin, see 58 Fed. Reg. 45,066 (1993).*fn2

In 1984, and again in 1992, Congress strengthened the MMPA with amendments that banned the import of tuna that failed to meet certain conditions. See 16 U.S.C. § 1371(a)(2)(B); 16 U.S.C. § 1411 et seq. In 1990, Congress enacted the Dolphin Protection Consumer Information Act ("DPCIA"), 16 U.S.C. § 1385. Under this statute, which is the focus of this action, tuna for sale in the United States could not display the label "dolphin safe" if the tuna was harvested using purse seine nets intentionally deployed on or to encircle dolphins.

In 1992, various Central and South American nations with purse seine fishing vessels in the ETP, along with the United States, voluntarily agreed to an "International Dolphin Conservation Program ("IDCP"), also known as the `La Jolla Agreement.'" Nations participating in the IDCP agreed to maintain dolphin kill levels at or below a "dolphin mortality limit" assigned to each vessel, and to work toward reducing dolphin mortality to levels approaching zero. AR, Tab 13 at 673-80. Between 1989 and 1995, the Inter-American Tropical Tuna Commission ("IATTC") also held 43 workshops for tuna boat captains and others to provide information on how to reduce dolphin mortality during use of purse seine nets.*fn3

In October 1995, the voluntary IDCP / La Jolla Agreement was formalized and transformed into a binding commitment called the Declaration of Panama, the terms of which were agreed to by the governments of the United States, Mexico, Belize, Columbia, Costa Rica, Ecuador, Honduras, Panama, Vanuatu, and Venezuela. Under this Declaration, the Administration agreed to seek changes in United States laws pertaining to embargoes, market access, and the dolphin safe label. AR, Tab 36 at 1230.

On August 15, 1997, Congress enacted the International Dolphin Conservation Program Act ("IDCPA"), in part to implement the Panama Declaration and eliminate the ban on imports of tuna from countries in compliance with the IDCP. AR, Tab 41 at 1267. In support of these purposes, Congress found that dolphin mortality rates in the ETP had substantially declined and that the signatory nations were committed to further reducing mortality to a level approaching zero. Id. at 1267-68. Indeed, since Congress enacted the MMPA in 1972, observed dolphin mortality in the ETP tuna fishery has dropped dramatically, from 423,678 deaths per year in 1972 to 15,550 per year in 1992. AR, Tab 50 at 1590. In 1993, dolphin death rates dropped again to 3,716 and have been edging downward since. Id. (estimating 1,900 deaths for 1998, the last year data is provided for in the record).

First, Congress amended the MMPA to require that the Secretary of Commerce ("Secretary") commence (1) population abundance surveys of the depleted stocks, and (2) research into whether the physiological stress effects of using purse seine nets to chase and encircle dolphins is adversely affecting depleted dolphin populations prior to implementing any change in the dolphin safe label. See AR, Tab 73 at 2141 (statement in NMFS report to Congress acknowledging that "[c]onsiderable concern about the potential effects of stress caused by [the use of purse seine nets] led to inclusion in the IDCPA of research projects directed toward assessing the prevalence and magnitude of fishery-induced stress in the dolphins targeted by this fishery"). Specifically, Congress mandated that:

The Secretary shall, in consultation with the Marine Mammal Commission and the Inter-American Tropical Tuna Commission, conduct a study of the effect of intentional encirclement (including chase) on dolphins and dolphin stocks incidentally taken in the course of purse seine fishing for yellowfin tuna in the eastern tropical Pacific Ocean. The study, which shall commence on October 1, 1997, shall consist of [population] abundance surveys as described in paragraph (2) and stress studies as described in paragraph (3), and shall address the question of whether such encirclement is having a significant adverse impact on any depleted dolphin stock in the eastern tropical Pacific Ocean.

16 U.S.C. § 1414a (amending the MMPA).

Congress then detailed the specific stress studies that the Secretary was required to undertake in paragraph (3):

The stress studies [required above] shall include —

(A) a review of relevant stress-related research and a 3-year series of necropsy samples from dolphins obtained by commercial vessels;
(B) a 1-year review of relevant historical demographic and biological data related to dolphins and dolphin stocks referred to in paragraph (1); and
(C) an experiment involving the repeated chasing and capturing of dolphins by means of intentional encirclement.

Id.

Second, Congress amended the DPCIA to direct the Secretary to make, by March 31, 1999, an initial finding as to whether the use of purse seine nets is having a significant adverse impact on any depleted dolphin stock in the [ETP]. Congress further specified that the Secretary was to make this finding on the basis of (1) the stress research conducted before March 1, 1999, (2) information under the IDCP, and (3) any other relevant information: Between March 1, 1999 and March 31, 1999, the Secretary shall, on the basis of the research conducted before March 1, 1999, under section 1414a of this title, information obtained under the [IDCP], and any other relevant information, make an initial finding regarding whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the [ETP].

16 U.S.C. § 1385(g)(1). Congress further required that the Secretary make a final finding on the same question by December 31, 2002, based on the completed stress studies, information obtained under the IDCP, and any other relevant information. 16 U.S.C. § 1385(g)(2) (amending the DPCIA).

Finally, Congress provided that, pending the initial finding, the existing dolphin safe label requirements for tuna fish sold in the United States would remain in force. As noted above, those requirements only permitted use of the dolphin safe label if the tuna was not harvested with purse seine nets intentionally deployed on or to encircle dolphins. This existing standard would also remain in force "where the [Secretary's] initial finding is that the intentional deployment on or encirclement of dolphins is having a significant adverse impact on any depleted dolphin stock." 16 U.S.C. § 1385(h)(2)(A),(B). If, however, either the Secretary's initial, or final, finding did not find such an adverse impact, then the dolphin safe label would default to a new standard. Id. Under this standard, tuna harvested with purse seine nets and sold in the United States may be labeled dolphin safe so long as no dolphins were observed to have been killed or seriously injured during the set. See id.; 16 U.S.C. § 1385(d)(2)(B).

On March 25, 1999, NMFS*fn5 submitted its Report to Congress (AR, Tab 73 at 2130, hereafter "Report") which addressed the available evidence regarding "whether the intentional deployment on or encirclement of dolphins with purse seine nets is having a significant adverse impact on any depleted dolphin stock in the [ETP]." Report at 2130. The Report approached this inquiry by posing two questions: (1) In the period since 1991 — in which dolphin mortality rates have been very low — has the population of the depleted dolphin stocks begun to recover at the expected rates*fn6 or has there been a failure to recover, and (2) if there has been a failure to recover, is this failure to recover attributable to the fishery [i.e., the fishing industry in the ETP] or some other cause? Report at AR 2136.

With respect to the first question, the Report was able to provide a quantitative answer that two of the three depleted dolphin stocks were not recovering at the rate expected given the low kill rates since 1992:

the currently depleted populations of both northeastern offshore spotted dolphins (p = 0.99) and eastern spinner dolphins (p = 0.44) are not increasing at the rate expected based on the low rate of reported mortalities from the fishery since 1991 and the reproductive potential for these populations.

Turning to the second question — whether the zero or declining growth rates are attributable to the fishery or some other cause — the Report identified one possible non-fishery related explanation: a large scale environmental variability in the ocean habitat. Report at 2148, 2159. The Report ruled out this explanation, concluding that "[t]he review of environmental conditions did not disclose any large-scale oceanographic regime shifts during recent decades," id. at 2160, ...


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