Brower v. Daley, C99-3892 TEH.

• Decision Date: 11 April 2000
• Docket Number: No. C99-3892 TEH.,C99-3892 TEH.
• Citation: 93 F.Supp.2d 1071
• Parties: David R. BROWER, et al., Plaintiffs, v. William DALEY, Secretary of Commerce, et al., Defendants.
• Court: U.S. District Court — Northern District of California

93 F.Supp.2d 1071

David R. BROWER, et al., Plaintiffs, v. William DALEY, Secretary of Commerce, et al., Defendants.

No. C99-3892 TEH.

United States District Court, N.D. California.

April 11, 2000.

Ariela Freed, Joshua R. Floum, Legal Strategies Group, Emeryville, CA, for Plaintiffs.

Ignacia P. Moreno, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, DC Robert S. Mueller, Charles Schockey, U.S. Attorney's Office, Criminal Division, San Francisco, CA, James A. Coda, Lois J. Schiffer, U.S. Attorney's

Office, San Francisco, CA, for Defendants.

CORRECTED MEMORANDUM AND ORDER

HENDERSON, District Judge.

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")¹ 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).²

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.³

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).

The provisions of the IDCPA address a number of issues pertaining to embargos and market access; the specific sections at issue here, however, concern the dolphin safe label. On this particular point, the IDCPA did not mirror the Panama Declaration, which sought legislation that would immediately allow tuna caught with purse seine nets to be labeled dolphin safe if no dolphins were observed to be killed or seriously injured during the set. Rather, as discussed more fully below, there was considerable concern that while there has been great success in reducing the observed mortality rate for dolphins to minimum levels, and those levels are targeted for even further reductions, the use of purse seine nets to repeatedly chase and encircle dolphins may have significant, physiological stress effects that impedes the ability of depleted dolphin populations to recover even if no dolphins are observed to be killed or seriously injured during the set.⁴ Accordingly, pursuant to a Congressional compromise, Congress took the following action with respect to the dolphin safe label:

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...