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Fisherman bride regulators on dolphin tuna rules { April 28 2004 }

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U.S. eased rules on tuna despite bribery claim
E-mail alleged effort to evade dolphin law
- Glen Martin, Chronicle Environment Writer
Wednesday, April 28, 2004

The U.S. Commerce Department has been aware for five years of allegations that government observers on Mexican tuna-fishing boats were regularly taking $10,000 bribes to concoct false reports that they were not netting dolphins, according to an internal agency e-mail obtained by The Chronicle.

Bush administration lawyers have argued that the allegations were not relevant to the government's 2002 decision to relax restrictions on foreign- caught tuna. The decision allows tuna caught by foreign boats that set nets on dolphins -- which follow the fish -- to be sold in U.S. as dolphin-safe, provided the dolphins are released.

Critics say the e-mail demonstrates that the Bush administration ignored key evidence and that its decision undermined longstanding environmental protections.

"The whole basis for protecting dolphins in countries that set nets on them is that there are reliable observers on board," said Mark Palmer of Earth Island Institute, a San Francisco environmental group. "If the observers are being bribed, obviously, the entire program falls apart."

Last year, after Earth Island challenged the government's decision, an injunction by Judge Thelton Henderson of the U.S. District Court in San Francisco prevented implementation of the rule.

For more than a decade, the dolphin-safe label has guaranteed U.S. consumers that the tuna they are buying was caught by nets that did not trap dolphins. Before U.S. regulation to protect them, dolphins that swim above schools of tuna in the eastern tropical Pacific were dying by the hundreds of thousands a year.

The government says current dolphin kills are less than 1,500 a year. But dolphin species that were depleted by decades of losses have not recovered -- a critical fact in the current case and one that the government says it can't explain.

Commerce Secretary Donald Evans ordered the rule change under a 1997 law that allowed dolphin-safe standards to be relaxed if supported by scientific research. Government lawyers have stated in court documents that the Commerce Department had "not considered or relied upon" the e-mail in reaching its decision to relax the standards.

The 1999 e-mail was between staff members for the National Marine Fisheries Service, a branch of the Commerce Department. It noted that there were plausible reports that observers on Mexican tuna boats operating under the authority of the Inter-American Tropical Tuna Commission routinely were taking $10,000 bribes to falsify data on dolphin nettings.

A copy of the e-mail was provided to The Chronicle by Earth Island Institute.

According to the e-mail, an American fisherman who worked aboard Mexican tuna boats was interviewed by federal fisheries biologists. The fisherman claimed that "although they always had observers on board, it was common knowledge throughout the fleet that the observers were regularly paid off to misreport what happened during the cruise."

The e-mail noted that the observers weren't being bribed to ignore dolphin deaths "...because they apparently have relatively few. ... They were instead paid substantial sums of money to report their dolphin-caught tuna as 'dolphin-safe' when they were actually being caught on dolphins."

On April 15, Judge Henderson called government arguments that the e-mail was irrelevant to the rule "specious."

"Documents ... that go to the reliability or credibility of data relied upon by the decisionmaker are plainly relevant. ... The government's failure to acknowledge this point is deeply troubling and reveals a glaring omission in the manner in which the record was compiled," Henderson wrote.

Maureen Rudolph, a U.S. Department of Justice attorney who represented the Commerce Department in the case, said she could not comment on the matter because it is being litigated. Justice Department spokesman Blain Rethmeier said government attorneys are responding to Henderson's order and are providing all documents relevant to the case.

Palmer of Earth Island had obtained the e-mail from Defenders of Wildlife, another environmental group. The e-mail had been submitted by the government as part of its documentation in its response to a separate lawsuit Defenders of Wildlife had filed on tuna rules.

David Burney, executive director of the US Tuna Foundation, a group that represents the interests of the American canned tuna industry, said the possibility of corrupt observers "is extremely serious, and it's certainly relevant to any review of the case. I would think it would have a real bearing on what it means to be dolphin-safe, and ultimately (Commerce's) position. It should make the government take a harder look at this."

Burney said American tuna processors support the more stringent definition of dolphin-safe promoted by Earth Island Institute and other environmental groups. "We absolutely will not buy dolphin-encircled tuna," he said. "It's clear to us that U.S. consumers don't want it. I think any move in that direction would cause a big outcry."

E-mail Glen Martin at

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