Brower v. Evans

Citation257 F.3d 1058
Decision Date11 December 2000
Docket NumberDEFENDANTS-APPELLANTS,N,No. 00-15968,PLAINTIFFS-APPELLEES,00-15968
Parties(9th Cir. 2001) DAVID R. BROWER, AN INDIVIDUAL; SAMUEL F. LABUDDE, AN INDIVIDUAL; EARTH ISLAND INSTITUTE, A CALIFORNIA NONPROFIT CORPORATION; HUMANE SOCIETY OF THE UNITED STATES, A DELAWARE NONPROFIT CORPORATION; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, A NEW YORK NONPROFIT CORPORATION; DEFENDERS OF WILDLIFE, A DISTRICT OF COLUMBIA NONPROFIT CORPORATION; INTERNATIONAL WILDLIFE COALITION, A MASSACHUSETTS NONPROFIT CORPORATION; ENVIRONMENTAL SOLUTIONS INTERNATIONAL, A FLORIDA NONPROFIT CORPORATION; ANIMAL WELFARE INSTITUTE, A DELAWARE NONPROFIT CORPORATION; SOCIETY FOR ANIMAL PROTECTIVE LEGISLATION, A DISTRICT OF COLUMBIA NONPROFIT CORPORATION; ANIMAL FUND, A CALIFORNIA NONPROFIT CORPORATION; THE OCEANIC SOCIETY, A CALIFORNIA NONPROFIT CORPORATION,, v. DONALD EVANS, <A HREF="#fr1-*" name="fn1-*">* SECRETARY OF COMMERCE; WILLIAM T. HOGARTH, <A HREF="#fr1-**" name="fn1-**">** ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE,o. 00-15968
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Katherine W. Hazard, United States Department of Justice, Environmental and Natural Resources Division, Washington, D.C., for the defendants-appellants.

Joshua R. Floum, Legal Strategies Group, Emeryville, California, for the plaintiffs-appellees.

Patricia M. Byrne and William A. Butler, Wilmer, Cutler & Pickering, Washington, D.C., for the amici curiae.

Appeal from the United States District Court for the Northern District of California Thelton E. Henderson, District Judge, Presiding D.C. No. CV-99-03892-TEH.

Before: Myron Bright,*** Barry G. Silverman, and William A. Fletcher, Circuit Judges.

Silverman, Circuit Judge:

The Secretary of Commerce appeals the district court's grant of summary judgment in favor of Earth Island. 1 The district court held that the Secretary's Initial Finding, triggering a change in the dolphin-safe label standard, was not in accordance with the law and constituted an abuse of discretion because the Secretary failed to (1) obtain and consider preliminary data from the congressionally mandated stress studies and (2) apply the proper legal standard to the available scientific information. We affirm.

I. Factual and Procedural Background

This case concerns congressional efforts to protect dolphins in the Eastern Tropical Pacific Ocean ("ETP"), which covers between five and seven million square miles and extends from the southern Californian to the South American coastlines. In the ETP, yellowfin tuna schools swim below dolphin groups, which are visible as they break the surface to breathe and leap into the air. Since 1959, fishermen in the ETP have pursued and chased the air breathing dolphin groups in order to catch the yellowfin tuna below. In this year-round process, referred to as "setting on dolphins," the fishermen use explosives, chase boats, and helicopters to drive the dolphins and tuna into the center of purse seine nets. Floats and weights support the nets, which close like a purse around all trapped inside. From 1959 to 1972, millions of dolphins were killed in the nets. Public outrage over the ETP dolphin deaths led to a variety of legislation and ultimately a dolphin-safe labeling standard. A review of the legislation leading to the standard and the potential easing of that standard is necessary for an understanding of the present controversy.

In 1972, public outcry over the ETP dolphin deaths led Congress to enact the Marine Mammal Protection Act ("MMPA"), 16 U.S.C. §§§§ 1361 et seq., which had the reduction of ETP dolphin deaths as one of its goals. The MMPA directed the Secretary of the Treasury to "ban the importation of commercial fish or products from fish which have been caught with commercial fishing technology which results in the incidental kill or incidental serious injury of ocean mammals in excess of United States Standards." Id. § 1371(a)(2). Having conducted research required by the MMPA, the National Marine Fisheries Service found that three ETP dolphin stocks were depleted--the coastal dolphin (42 Fed. Reg. 64, 548-60 (1977)), northeastern offshore spotted dolphin (58 Fed. Reg. 58, 285 (1993)), and the eastern spinner dolphin (58 Fed. Reg. 45,006 (1993)).2 In 1984, 1988, and 1992, Congress amended the MMPA to ban importation of tuna that failed to meet certain conditions regarding dolphin mortality. 16 U.S.C. §§§§ 1371(a)(2)(B) & 1411 et seq. In 1990, responding to consumer concern and American tuna processors labeling changes, Congress enacted the Dolphin Protection Consumer Information Act ("DPCIA") under which tuna sold in the United States could not have a "dolphin safe" label if the tuna had been caught using purse seine nets intentionally deployed on or to encircle dolphins. 16 U.S.C. §§ 1385.

The American legislation and corresponding standards caused the loss of a large market for those countries that continued to set on ETP dolphins with purse seine nets. In 1992, the United States and other nations with purse seine fishing vessels in the ETP negotiated the International Dolphin Conservation Program ("La Jolla Agreement"), in which they "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." Brower v. Daley, 93 F. Supp. 2d 1071, 1074 (N.D. Cal. 2000). Three years later, the La Jolla Agreement was formalized into a binding agreement, the Panama Declaration, under which the United States agreed to seek changes in United States laws pertaining to tuna embargoes, market access, and the dolphin safe label. S. 397, 105th Cong., 143 Congr. Rec. 379-01 (1997). The Panama Declaration sought legislation to change immediately the dolphin safe labeling standard and to allow tuna caught with purse seine nets to be labeled"dolphin safe" as long as no dolphins were observed to be killed or seriously injured during the set.

In part to implement the Panama Declaration and eliminate the ban on tuna imports from countries complying with the La Jolla Agreement, on August 15, 1997, Congress enacted the International Dolphin Conservation Program Act ("IDCPA"), Pub. L. No. 105-42, 111 Stat. 1122. While there had been success in lowering dolphin mortality rates,3 Congress remained concerned that, even if dolphins were not killed or seriously injured in the purse seine nets, the physiological stress they suffered during the year-round chase and encirclement would impede the dolphin populations' recovery. Accordingly, Congress rejected Panama Declaration language which sought an immediate change in the dolphin-safe label. H.R. Rep. No. 105-74 (pt. 1), reprinted in 1997 U.S.C.C.A.N. 1628. Congress included in the IDCPA a requirement of specified research projects directed toward assessing the prevalence and magnitude of fishery-induced stress in the ETP dolphins.

Through the IDCPA, Congress amended the DPCIA and required the Secretary to make Initial and Final Findings as to "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) & (g)(2). The Secretary was to make the Initial Finding on the basis of research conducted before March 1, 1999, information obtained under the International Dolphin Conservation Program, and any other relevant information.4 The IDCPA also amended the MMPA to provide details of the required research:

(a) Required research

(1) In general. -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 [ETP]. The study, which shall commence on October 1, 1997, shall consist of 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 [ETP].

(2) Population abundance surveys. -The abundance surveys under this subsection shall survey the abundance of such depleted stocks and shall be conducted during each of the calendar years 1998, 1999, and 2000.

(3) Stress studies. -The stress studies under this subsection 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. §§ 1414a(a).

The Secretary delegated the research to the National Marine Fisheries Service. A change in the dolphinsafe labeling standard from the existing, more restrictive standard to the less protective standard depended on NMFS's answer as to "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]."

On March 25, 1999, NMFS submitted its report to Congress. NMFS found that the currently depleted populations of both northeastern offshore spotted dolphins and eastern spinner dolphins5 were "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." Report at vi. NMFS noted the difficulty in attributing the cause of the low or declining growth rates. Id. at viii. NMFS identified only one possible non-fishery related explanation for the slow or declining growth rates--a large scale environmental...

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