Earth Island Institute v. Hogarth

• Decision Date: 27 April 2007
• Docket Number: No. 04-17018.,04-17018.
• Citation: 494 F.3d 757
• Parties: EARTH ISLAND INSTITUTE, a California non-profit corporation; the Humane Society of the United States; the American Society for the Prevention of Cruelty to Animals, a New York non-profit corporation; Defenders of Wildlife, a District of Columbia nonprofit corporation; Animal Fund, a California nonprofit corporation; the Oceanic Society, a California nonprofit corporation; International Wildlife Coalition, a Massachusetts nonprofit corporation; Animal Welfare Institute, a Delaware nonprofit corporation; the Society for Animal Protective Legislation, a District of Columbia nonprofit corporation; Samuel F. LaBudde, an individual, Plaintiffs-Appellees, v. William T. HOGARTH, Assistant Administrator for the National Marine Fisheries Service; Carlos M. Gutierrez, Secretary of Commerce, Defendants-Appellants, and Camara Nacional De Las Industrias Pesquera y Acuicola (Canainpesca); Asociacion Venezolana De Armadores Atuneros (Avatun), Defendants-Intervenors.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.3d 757

EARTH ISLAND INSTITUTE, a California non-profit corporation; the Humane Society of the United States; the American Society for the Prevention of Cruelty to Animals, a New York non-profit corporation; Defenders of Wildlife, a District of Columbia nonprofit corporation; Animal Fund, a California nonprofit corporation; the Oceanic Society, a California nonprofit corporation; International Wildlife Coalition, a Massachusetts nonprofit corporation; Animal Welfare Institute, a Delaware nonprofit corporation; the Society for Animal Protective Legislation, a District of Columbia nonprofit corporation; Samuel F. LaBudde, an individual, Plaintiffs-Appellees, v William T. HOGARTH, Assistant Administrator for the National Marine Fisheries Service; Carlos M. Gutierrez, Secretary of Commerce, Defendants-Appellants, and Camara Nacional De Las Industrias Pesquera y Acuicola (Canainpesca); Asociacion Venezolana De Armadores Atuneros (Avatun), Defendants-Intervenors.

No. 04-17018.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 16, 2006.

Filed April 27, 2007.

Amended July 13, 2007.

Ryan D. Nelson, U.S. Department of Justice, Washington, DC, for the defendants-appellants.

Richard Mooney, Home Roberts & Owen, LP, San Francisco, CA, for the plaintiffs-appellees.

Laura Klaus, Greenberg Traurig, LLP, Washington, DC, 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-03-00007-TEH.

Before: MARY M. SCHROEDER, Chief Circuit Judge, JEROME FARRIS and JOHNNIE B. RAWLINSON, Circuit Judges.

ORDER

The opinion in Earth Island v. Hogarth, 484 F.3d 1123, 1136 (9th Cir.2007), is amended as follows: The last sentence of the penultimate paragraph of the slip opinion on page 4631 is deleted. The following sentence is substituted in its place: "The label of `dolphin safe' will continue to signify that the tuna was harvested in compliance with the requirements of 16 U.S.C. § 1385." Future petitions for rehearing and petitions for rehearing en banc will not be entertained.

OPINION

SCHROEDER, Chief Circuit Judge:

This case concerns the practice of catching yellowfin tuna by encircling dolphins with purse-seine nets. The dispute over whether tuna sellers may label tuna as dolphin-safe if caught with such nets has a long history that for us begins with Congress's enactment of the International Dolphin Conservation Program Act ("IDCPA") in 1997. 16 U.S.C. § 1385 (1997). The statute required the Secretary of Commerce through the National Oceanic and Atmospheric Administration ("NOAA"), to conduct certain scientific studies and determine whether or not the tuna fishery is affecting the dolphin population. According to the bill's proponents, Congress would weaken the then-strict tuna labeling requirements, and permit broader use of "dolphin-safe" labeling, only if the Secretary found that the fishery was not having a significant adverse impact on already depleted dolphin stocks.

In 1999, the Secretary made an Initial Finding, despite inconclusive evidence, that the fishery was not having an adverse impact on the dolphin population. Environmental groups then brought suit in federal district court to enjoin the Secretary's implementation of weaker labeling standards. The district court held the agency's finding of no adverse impact was arbitrary and capricious in light of the inconclusive evidence. Brower v. Daley, 93 F.Supp.2d 1071, 1087 (N.D.Cal.2000) ["Brower I"].

On appeal to this court, we affirmed the district court's rejection of the Initial Finding, because the agency was required, but had failed, to reach a definitive answer to the questions posed by Congress. See 16 U.S.C. § 1414a(a). We held the agency should not have made what amounted to a default finding of no adverse impact in the absence of conclusive scientific data. Brower v. Evans, 257 F.3d 1058, 1071 (9th Cir.2001) ["Brower II"].

The agency then did some additional studies and reached the same conclusion in a Final Finding in December 2002. The case is before us again to review District Court Judge Henderson's decision in round two that the Secretary's Final Finding is again arbitrary and capricious, because the agency still has not complied with Congressional mandates for scientific studies. Earth Island Inst. v. Evans, No. 03-0007, 2004 WL 1774221, at *30-31 (N.D.Cal. Aug. 9, 2004). We affirm Judge Henderson's well-reasoned decision.

I. Background

Because the history of this dispute is so important, we outline it in some detail. For greater detail, see our prior opinion in Brower II, 257 F.3d at 1060-64.

In the Eastern Tropical Pacific Ocean (the "ETP"), off the west coast of South America, schools of yellowfin tuna tend to congregate underneath pods of dolphin. In the late 1950s, fishermen started throwing large nets, called purse-seine nets, around the dolphin pods to capture the tuna below. This method of fishing is known as "setting" because the fishermen use explosives, chase boats, and helicopters to drive the dolphins into the center of large nets, which then close like a purse around all that is trapped inside. It is not disputed that the technique has caused the death of more than six million dolphins. By 1993, the extensive use of fishing with purse-seine nets depleted the stock of three species of dolphins — the northeastern offshore spotted dolphin, the eastern spinner dolphin, and the coastal spotted dolphin — to levels below their optimum sustainable population, which is the number of animals which will result in the maximum productivity of the population or the species. Today, these species of dolphin are struggling to recover. Experts estimate that their populations in the ETP are "growing" at a slow rate of anywhere between -2% and 2% annually.

Congress has long been concerned with the high mortality rate of ETP dolphins. In 1972, it enacted the Marine Mammal Protection Act ("MMPA"), which was designed to "protect marine mammals from the adverse effects of human activities." See 16 U.S.C. § 1371 et seq.; H.R.Rep. No. 105-74(I) at 12 (1997), U.S.Code Cong. & Admin.News 1997, pp. 1628, 1629-30. The Act was subsequently amended to ban the 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, Congress passed the Dolphin Protection Consumer Information Act, which barred tuna sellers from labeling their products as "dolphin-safe" if the tuna was caught by intentionally encircling dolphins with purse-seine nets. 16 U.S.C. § 1385.

Given the choice of whether to purchase dolphin-safe tuna or to purchase tuna not labeled dolphin-safe, American consumers overwhelmingly chose to purchase tuna that was labeled dolphin-safe. As a result, foreign tuna sellers who did not adjust their fishing methods were quickly forced out of the market. These sellers, who were primarily from Mexico and South American countries, consequently began lobbying for more flexible labeling requirements. In 1992, the United States joined various Latin and South American countries to form the International Dolphin Conservation Program. The program was formalized into a legally-binding agreement known as the Panama Declaration, pursuant to which the United States' delegation agreed to seek a weakening of the dolphin-safe labeling standard and allow such a label to be affixed to tuna caught with purse-seine nets as long as no dolphins were observed to be killed or seriously injured during the set. See S. 39, 105th Cong. (1997); 143 Cong. Rec. 379-401 (1997).

When the delegation asked Congress to change the standard, however, Congress refused to relax its strict requirements without affirmative evidence that the tuna fishery was not significantly contributing to the slowness of the recovery rate of already depleted dolphin stocks. See e.g., 143 Cong. Rec. S.8299-8311 (daily ed. July 30, 1997) (statements of Sens. Snowe and Stevens). To resolve this uncertainty, it amended the MMPA and enacted the IDCPA. Together, the legislation directed the Secretary of Commerce to determine 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); see also 16 U.S.C. § 1414a. IDCPA directed the Secretary to make an Initial Finding by March 31, 1999 and a Final Finding by December 31, 2002. 16 U.S.C. § 1385(g)(1),(2). The amended MMPA enumerated three studies the NOAA had to conduct in making its determination:

(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 [the CHESS study].

16 U.S.C. § 1414a(a)(3).

On April 29, 1999, the Secretary of Commerce made his Initial Finding, concluding that there was "insufficient evidence . . . that 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." Notice on Taking of Marine Mammals Incidental to Commercial Fishing, 64 Fed.Reg. 24590 (May 7, 1999). Environmental groups challenged the Initial Finding under the Administrative Procedure Act, 5 U.S.C. § 706(2). District Judge Henderson granted Plaintiffs' motion for summary judgment and vacated the Initial Finding. See Brower I, 93 F.Supp.2d at 1089.

The government appealed, and this court unanimously affirmed. Brower II, 257 F.3d at 1060, 1071. We held the Secretary could not rest on a lack of sufficient evidence, because Congress specifically had ordered the Secretary to "make a finding whether or not...