In the eastern tropical Pacific Ocean (ETP), some schools of yellowfin tuna associate with dolphins. Fishers there have consequently found that setting nets on dolphins is a lucrative way to catch the tuna swimming nearby, despite the fact that the practice is extremely harmful to dolphins. Since the 1950s, over seven million dolphins have died from this fishery.

Reacting to the high levels of dolphin mortality in the ETP, Congress amended the Marine Mammal Protection Act (MMPA) several times in the 1980s to encourage alternate methods of tuna fishing and, in 1990, created a highly popular consumer labeling program for "dolphin-safe tuna." This program outlawed the labeling of tuna caught by intentionally netting dolphins as "dolphin-safe." Other amendments required all nations exporting tuna to the U.S. to adopt dolphin protection programs "comparable" to that of the U.S. and sought an end to the intentional encirclement of dolphins with tuna nets in the ETP. These regulations, with enforceable trade triggers, resulted in dramatic reductions in dolphin mortalities.

These amendments led to an embargo of tuna from Mexico and other countries in 1990. Mexico responded by appealing to what is now the World Trade Organization (WTO), which ruled the U.S. embargo as a violation of international trade rules. The basis of this decision is the illogical notion that a country cannot block the importation of a product (tuna) that itself is not environmentally harmful, even if it is produced in a way (killing dolphins) that harms the environment.

Consequently, Mexico and other embargoed countries asked Congress to weaken the MMPA to lift the embargo and allow their tuna fishers to sell their dolphin-netted tuna in the U.S. under a "dolphin-safe" label. The Clinton Administration, under threat of trade sanctions by the WTO, secretly met with government representatives from Mexico and other countries in 1995 to solve their "trade" problem. The Administration negotiated a deal, called the Panama Declaration, to eliminate the embargo provisions and allow Mexico and other countries to import tuna into the U.S. It also established minimum dolphin kill levels (above current dolphin death rates) and called for the definition of "dolphin-safe" to be changed to allow intentional netting of dolphins.

In 1997, legislation was introduced in Congress that would have undermined the MMPA’s ban on imports of tuna caught by netting dolphins. Dubbed the "Dolphin Death Act" by critics, this bill would have lifted the MMPA’s ban on the encircling and catching of dolphins, and would have distorted the definition of the "dolphin-safe" label to allow it to be used on tuna caught by encircling dolphins so long as no dolphins were "observed" killed, ignoring the unobserved harm this method places on dolphins and the enforcement loophole this system would create. Despite hard work by Defenders and its allies, this legislation passed the House of Representatives, but fortunately, it was stopped before it passed the Senate. Defenders worked with a bipartisan team of Senators to offer a compromise that would resist the lowering of U.S. standards because of international trade concerns while at the same time lifting the trade embargo for any tuna that meets the requirements of the new program. Our solution also sought to retain the "dolphin-safe" definition until clear scientific evidence proved that the encirclement method of tuna fishing is not injurious to dolphins. The compromise also made positive changes to the tuna/dolphin program, including the tracking and verification system.

The legislation that became law, known as the International Dolphin Conservation Program Act (IDCPA), called for the lifting of the embargo on foreign dolphin-netted tuna provided certain conditions were met. It also mandated a scientific study by the U.S. National Marine Fisheries Service (NMFS) on the effects of intentionally encircling dolphins and a review of the "dolphin-safe" label based on the results of that study. By law, if the study results failed to prove that the encirclement fishing method causes a "significant adverse impact" on any depleted dolphin populations then the Secretary of Commerce would revise the "dolphin-safe" label.

Three dolphin populations in the ETP, the northeastern offshore spotted, the eastern spinner, and the coastal spotted, are officially depleted under the MMPA. If the encirclement method is inherently safe for dolphins, then researchers would have expected to see a rise in dolphin populations as a result of reported reductions in encirclement-caused incidental dolphin deaths. However, findings from the NMFS study indicate that despite the reported decreases in dolphin mortality, these species have not recovered to anticipated population levels. In fact, at least one still appears to be declining, indicating that years of setting tuna nets on these dolphins has indeed had a significant harmful effect on their populations.

Despite these results, in April 1999, the Commerce Secretary announced that since it had insufficient evidence to make any determination regarding significant impact of the encirclement method on depleted dolphin populations, the meaning of the "dolphin-safe" label would be changed to allow its application to tuna caught by encircling dolphins with tuna nets, as long as an on-board observer claims that no dolphins were killed or seriously injured during the fishing set. A second phase of the NMFS study is in progress and a second label finding will be announced by December 2002.

The study findings reinforce our long-held position that, in the absence of sound science proving that the encirclement method of tuna fishing is completely safe for dolphins, no "dolphin-safe" label should apply to tuna caught using this method, even if no dolphins are viewed killed or seriously injured by tuna boat observers. Defenders is working to ensure that the U.S. tuna market remains dolphin-friendly despite any weakening of the "dolphin-safe" label. We are urging tuna companies and grocery stores to commit to trading only tuna that was not caught in association with dolphins. Already the three largest U.S. tuna companies, Star-Kist, BumbleBee and Chicken of the Sea, one national grocery chain, Safeway, and restaurants and stores around the country have pledged to remain "dolphin-safe" regardless of any label change.

In August 1999, Defenders and others filed a lawsuit against the Department of Commerce for its decision to weaken the "dolphin-safe" label, which we believe was arbitrarily based on trade politics rather than on science. In April 2000, the judge in that case agreed and ruled the Commerce Department’s action illegal. The label has been restored to its original 1990 standard, which prevents its application to tuna caught by netting dolphins. In July 2001, a U.S. Court of Appeals affirmed that decision, ensuring, for now, that "dolphin-safe" labels mean just that.

In May 1998, the U.S. and other ETP tuna fishing nations signed an international agreement implementing the Panama Declaration and the new IDCPA. However, the agreement is substantially weaker than the law. In January 2000, NMFS issued regulations to implement the IDCPA that follow the weaker agreement rather than the requirements of the law. Consequently, in April 2000, the Department of Commerce lifted the ban on tuna from Mexico. For the first time in a decade, Mexican tuna caught by intentionally netting dolphins can be sold in the U.S. Fortunately, the Commerce Department did not win its court appeal so that tuna will not be labeled "dolphin-safe."

In February 2000, Defenders and our allies filed a second lawsuit in the U.S. Court of National Trade in New York City challenging the new regulations on the grounds that they violate U.S. dolphin protection and other environmental laws. Defenders asserted that both the new regulations and the agreement fail to provide the incentives promised in the IDCPA for fishers to fish dolphin safe. Both fail to delineate specific steps for annual reductions in dolphin mortality levels, and are also weak on tuna tracking systems required to ensure the separation of dolphin-safe and dolphin-unsafe tuna throughout the tuna catching and processing stages. 

Both the regulations and the agreement fail to adequately address the government’s own experts’ concerns, backed up by the best available science, that setting tuna nets on dolphins is having a deleterious impact on depleted dolphin species in the ETP. Both fail to address the reduction of other species incidentally taken in the course of fishing for tuna, known as bycatch. Incredibly, both also fail to address the over harvesting of the tuna stocks themselves, despite the fact that ETP tuna fishers are catching tuna in amounts far in excess of levels considered sustainable by fishery scientists. The government’s action will lead to additional dolphin deaths annually, with no reduction in sight, in clear violation of the Marine Mammal Protection Act. 

Defenders asked the Court to require the government to re-evaluate its lifting of the embargo, taking into consideration impacts on dolphin populations and marine biodiversity, and to prepare an environmental impact statement, as required by federal law, in order to take a hard look at the environmental impact of the new regulations and lifting the embargo.

Defenders appealed the flawed decision in February 2002 to the U.S. Court of Appeals for the Federal Circuit in Washington, D.C. Defenders will seek to have the U.S. government fully implement the dolphin-safe label and to stop admitted over fishing in the area by other countries. Defenders expects the case to be heard later this year.