Dolphin-safe tuna law erased by treaty

From ANIMAL PEOPLE, November 1995:

PANAMA CITY, Panama– – The
U.S. embargo against imports of tuna netted
“on dolphin” collapsed October 4 as the Bill
Clinton administration signed the Declaration
of Panama, a treaty which redefines “dolphin-safe”
from zero preventable dolphin
deaths to killing under 5,000 per year.
Accepted under pressure from the
anti-regulation Republican Congress and the
enforcement panels of the General Agreement
on Trade and Tariffs and the North American
Free Trade Agreement, the treaty is expected
to be quickly ratified by the Senate.

At a stroke of a pen, trade politics
thus undid the U.S. Dolphin Protection
Consumer Information Act of 1990––the
reputed crowning success of the 20th annual
Earth Day celebration.
The Declaration of Panama was
negotiated by Greenpeace, the National
Wildlife Federation, the Center for Marine
Conservation, the Environmental Defense
Fund, and the World Wildlife Fund, at a
September 27 conference with Latin
American government representatives in
Huatulco, Mexico.
Signing nations, besides the U.S.,
include Mexico, Panama, Belize, France,
Spain, Peru, and Vanuatu. Among them,
they claim to have killed “only” 3,400 dolphins last year.
Reduced demand for tuna has had much to do with this. Of
the 88 tuna boats once based at Ensenada, Mexico, 70 did
not pursue tuna this year, while about 4,000 Mexican tuna
workers have been laid off since 1990.
The official dolphin toll is also suspect, since only
about 3% of all foreign-flagged vessels carry independent
observers. Only last year, Alison Smith of the Whale and
Dolphin Conservation Society charged after an on-site probe
that Peru alone kills 20,000 dolphins a year––on purpose,
because dolphin meat has become profitable since Genoese
immigrants made it fashionable about 20 years ago. A United
Nations study issued in January 1994 confirmed that Peruvian
tuna boats killed 17,000 dolphins in 1993, up from 10,000 in
1992. Add to that the bycatch from Peru’s $1.1 billion-a-year
fish meal industry, which annually nets 11 million tonnes of
anchovies and sardines from dolphin feeding areas.
Peru has a dolphin protection law, on paper, but
enforcement has been ignored for years while the government
concentrated on reigning in inflation and putting down the
Shining Path guerilla insurrection. In absence of governmental
action, the activist group Crusade for Life has posted billboards
urging an end to dolphin-eating.
Peru is not the only place where open slaughter
continues. In July 1994, according to Earth Island Institute,
a former U.S. tuna boat named the Nicole K., reflagged as the
Jane Elizabeth out of Vanuatu, netted and drowned 546 dolphins
in just three hours. The captain was a U.S. citizen.
“Since March 1, 1994” an Earth Island press
release reminded, “under provisions of the International
Dolphin Conservation Act of 1992, it has been illegal for
U.S. citizens to work on foreign tuna vessels that kill dolphins.
Six days before the law took effect, lawyers representing
four U.S. tuna boat captains commanding foreign vessels
filed suit,” seeking to stop enforcement. “Earth Island intervened
on the side of the government,” which won the case
but then failed to move against “more than 30 U.S. captains
who continue to kill dolphins while sailing on foreign tuna
vessels,” whose names Earth Island provided to NMFS,
along with the names of their vessels.
Greenpeace, the National Wildlife Federation, the
Center for Marine Conservation, the Environmental Defense
Fund, and the World Wildlife Fund said little about the
Declaration of Panama in the days after the signing, but
reportedly rationalized their part in it with the claim that
Congress might repeal dolphin protection entirely if a compromise
satisfactory to the tuna industry wasn’t reached. The
House Resources Subcommittee on Fisheries, Wildlife, and
Oceans had scheduled an October 26 hearing on a bill to
repeal dolphin protection, HR 2179, titled the “International
Dolphin Conservation Act Amendments of 1995.” It was
cancelled when the Declaration of Panama was signed.
Thirty-six environmental and animal protection
groups on September 26 asked President Clinton to veto HR
2179, if it reaches his desk. Introduced by Representative
Randy Duke Cunningham, a Republican from Escondido,
California, with reputed close ties to both the tuna industry
and the “wise use” movement, HR 2179 would according to
Earth Island Institute, “allow foreign countries to flood the
U.S. market with tuna caught on dolphin,” and would “set an
international dolphin death quota at 55,000 a year,” enabling
a return to netting on dolphin as standard procedure.
The Greenpeace and WWF positions appear similar
to their posture during brokerage of the creation of the
Southern Ocean Whale Sanctuary at the 1994 meeting of the
International Whaling Commission, when in effect they traded
acceptance of the principle that commercial whaling
should resume for the protection––on paper––of the habitat
occupied by about 80% of the world’s baleen whales an estimated
90% of the time. Greenpeace internal memos reminded
the organization’s negotiators that “Greenpeace does not
oppose whaling, in principle,” and that “Greenpeace is neither
for nor against the killing of marine mammals.”
Greenpeace and WWF, along with NWF, EDF,
and CMC, officially share the philosophy that nature should
be put to economic use, in the form of “sustainable development.”
This differs from “wise use” in that “wise users”
believe natural resources should be used in any way useful to
humans, while “sustainable developers” hold that they should
only be used at replacement rates.
Dolphins are killed in tuna fishing because in the
eastern Pacific, where the coveted yellowfin tuna live, tuna
and dolphins often swim together. Spotting air-breathing dolphins
at the surface, tuna fleets surround the pod with deep
seine nets, then haul tuna and dolphins in together. Some
dolphins leap out. Others catch their bills in the netting and
drown, or are crushed in the winches used to reel up the net.
Apart from the individual suffering that results, netting
tuna on dolphin heavily impacts several dolphin species.
Earth Island Institute biologist Todd Steiner reported in 1987
that 82.5% of the spotted dolphins killed in tuna nets and
82.8% of the spinner dolphins killed were either pregnant or
nursing mothers and calves. Pregnant and infant dolphins are
less able to leap clear; mothers refuse to leave their babies.
The Center for Marine Conservation estimated that
tuna-netting killed 423,000 dolphins worldwide in 1972,
when the Marine Mammal Protection Act sought, among
other goals, to lower the toll toward zero. The tuna industry
claimed the total was only 134,000. At that point, U.S. boats
caught 88% of the global tuna catch. Much of the U.S. fleet
moved abroad. By 1988, 70% of the fleet was foreignflagged.
Longline tuna fishing, the former norm, was
replaced by netting to such an extent that by 1985, Steiner
said, 94% of the global catch came on dolphin.
Meanwhile, trying to keep fishing jobs in the U.S.,
Congress in 1981 amended the MMPA to set an allowable
quota for dolphin kills during tuna netting of 20,500.
Officially, the dolphin death toll continued to drop.
Despite the increase in netting on dolphin, the National
Marine Fisheries Service calculated, in 1986 just 124,597 dolphins
were killed worldwide. The diminished U.S. fleet killed
20,695 dolphins through the first 10 months of 1986.
Undersold by foreign competition, the U.S. tuna industry
balked at further measures to spare dolphins. Another 78,000
to 82,000 dolphins were killed in 1987, 14,000 by the U.S.
fleet and 12,000 by the Taiwanese fleet. Latin American vessels
killed most of the rest.
Irked, former U.S. government biologist Sam
LaBudde, working undercover for Earth Island Institute,
bought a video camera and hired out from October 1987 to
January 1988 as cook on a Panamanian tuna seiner.
LaBudde’s footage of dying dolphins sparked a tuna boycott
that continued even after Congress amended the MMPA in
1988 to require stricter monitoring of dolphin
deaths. Foreign tuna boats killed 84,000 dolphins
in 1989; the U.S. fleet boasted of
killing only 12,643. The boycott continued,
until just before Earth Day 1990 the major
U.S. tuna canners agreed to stop buying tuna
netted on dolphin. Court verdicts tightening
enforcement of 1988 amendments to the
MMPA and the Dolphin Protection
Consumer Information Act soon followed,
together imposing a ban on the import of tuna
netted on dolphin––or any tuna from nations
known to fish by that method.
Mexico appealed to the General
Agreement on Tariffs and Trade enforcement
panel. In October 1991, the GATT panel
ruled that the U.S. had no authority to extend
its environmental laws to govern the practices
of another nation. But U.S. Federal District
Judge Thelton Henderson, of San Francisco,
ignored GATT on January 9, 1992, when he
ordered the U.S. government to enforce the
tuna import ban regardless.
Sam LaBudde
Naming the Whale and Dolphin Conservation
Society as a participant, as well as Greenpeace et al,
LaBudde and Earth Island Institute president David Phillips
charged in a release issued soon after the Treaty of Panama
was reached that, “The proposal may sound like a worthy
compromise, but it is not. It is a sellout,” because it “permits
an expanded slaughter of dolphins by U.S. tuna fishers just as
U.S. killing of dolphins has been eliminated entirely. It
allows U.S. tuna vessels to return to dolphin-killing in the
eastern tropical Pacific, and even allows the killing of dolphin
species listed as depleted. It would strip strict dolphin
protection requirements and leave all enforcement to the
InterAmerican Tropical Tuna Commission, which has an
abysmal record of dealing properly with violations. The deal
allows mis-labeling of tuna products––a form of consumer
fraud––and would put in place an absolutely unenforceable
system for determining which tuna is dolphin-safe. The deal
puts the sponsoring organizations on record endorsing the
deadly practice of setting nets on dolphins as a method of
catching tuna.”
Representatives Joseph Biden (D-Del.), Barbara
Boxer (D-Calif.), George Miller (D-Calif.), and Gerry
Studds (D-Mass.) echoed LaBudde and Phillips in a joint
statement asking Clinton to reject the Declaration of Panama.
They warned that the treaty would put Star-Kist, the last
U.S.-owned tuna company, at a competitive disadvantage if it
continues to maintain its current “dolphin-safe” policy.
Reaction from conservationists+89= abroad was
also harsh. “Unless there is some sort of rigorous international
and independent observation, the Panama Declaration will
be just one more scam. I hope Americans won’t buy it,” said
Jose Truda Palazzo Jr., president of the Brazilian chapter of
the International Wildlife Coalition. “Brazilian tuna companies
are currently striving to have their product certified as
dolphin-safe. Any relaxation of the embargo now would cripple
our domestic efforts to have high conservation standards
adopted in Brazilian fisheries regarding marine mammals.”
The validity of the U.S. embargo despite the GATT
position was affirmed on October 10, when the 9th U.S.
Circuit Court of Appeals ruled that NMFS acted properly on
February 7, 1994, when it halted American participation in
tuna netting in the eastern tropical Pacific because the allowable
dolphin mortality quota was likely to be exceeded.

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