Jump to Navigation
Jump to Content

Brower v. Evans

ELR Citation: 31 ELR 20829
Nos. No. 00-15968, 257 F.3d 1058/(9th Cir., 07/23/2001)

The court holds that the Secretary of Commerce abused his discretion and acted in contrivance of the law when he issued a finding that triggered a change in the dolphin-safe label standard for tuna sold in the United States. Through the International Dolphin Conservation Program Act (IDCPA), Congress amended the Dolphin Protection Consumer Information Act (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 eastern tropical Pacific Ocean. After a study conducted by the National Marine Fisheries Service, the Secretary issued an initial finding, concluding that there was insufficient evidence that chase and encirclement by the tuna purse seine nets was having an adverse impact on depleted dolphin stocks. Pursuant to this finding, the dolphin-safe label standard changed to permit the use of "dolphin-safe" labeling when purse seine nets are used as long as no dolphins were killed or injured during the particular set in which the tuna were caught. An environmental group successfully challenged the Secretary's finding in district court, and the Secretary appealed.

The court first holds that the Secretary must affirmatively find whether or not there is a significant adverse impact before the dolphin-safe labeling standards can be relaxed. The Secretary misinterpreted the requirements of the IDCPA by concluding that there was a default to a less protective label standard if he failed to find evidence of significant adverse impact, and that he was not required to find affirmatively that there was not a significant adverse impact. The Secretary's interpretation is at odds with the statute's structure, which requires the Secretary to make a finding whether or not the fishery-related activities were adversely impacting the dolphins. This finding requires a "yes" or "no" answer. Additionally, Congress rejected language in an international agreement that sought an immediate change in the dolphin-safe label. The court also holds that the Secretary's failure to incorporate any stress studies in his initial finding was in clear contravention of the IDCPA, which requires stress studies to be conducted and included in the finding. Moreover, by failing to obtain and consider preliminary data from any of the mandated stress research projects before the initial finding, the Secretary unreasonably delayed action, abused his discretion, and acted arbitrarily and capriciously and not in accordance with the law. The court, therefore, affirms a district court's grant of summary judgment in favor of the environmental group.

Counsel for Plaintiffs
Joshua R. Floum
Legal Strategies Group
5905 Christie Ave., Emeryville CA 94608
(510) 450-9600

Counsel for Defendants
Katherine W. Hazard
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Silverman, J. Before Bright*** and Fletcher, JJ.

*** The Honorable Myron Bright, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation.