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International Court Dismisses Latest Tuna Challenge
Defenders of Wildlife v. Hogarth, 177 F. Supp. 2d 1336 (Ct. Int’l Trade 2001) . 

Yoshiyuki Takamatsu, 3L 

In December 2001, the U.S. Court of International Trade dismissed challenges to the latest actions of the U.S. government in its long effort to protect dolphins endangered as a result of tuna-fishing practices in the Eastern Tropical Pacific Ocean (ETP), stretching from southern California to Peru. After the discovery that yellowfin tuna swim under dolphins in the ETP, the predominant tuna fishing method was to encircle schools of dolphins with a net to capture the tuna below resulting in high dolphin mortality.

In 1990, under the Marine Mammal Protection Act, the U.S. imposed an embargo of tuna on Mexico for failure to meet the U.S. tuna harvesting standards.1 In the 1990s, the U.S. entered into two international agreements to reduce dolphin mortalities in the ETP: the La Jolla Agreement,2 a non-binding agreement establishing a schedule to reduce dolphin takes; and the Panama Declaration,3 a formalization of part of the La Jolla Agreement. In 1997, Congress enacted the International Dolphin Conservation Program Act (IDCPA)4 to implement these international agreements, and in 2000, the U.S. Department of Commerce implemented the IDCPA by issuing an interim final rule.5 In April 2000, the U.S. lifted its embargo against Mexico and allowed the import of tuna harvested in the ETP. The Defenders of Wildlife and various other environmental groups sought to invalidate these governmental actions concerning the dolphin conservation program in the ETP. First, the plaintiffs alleged the interim final rule was inadequate to implement, and inconsistent with, the IDCPA. However, the court found the plaintiffs failed to show that the rule contravened the IDCPA. Deferring to the government’s greater familiarity with the circumstances surrounding the subjects, the court found the government’s interim final rule legal.

The plaintiffs also challenged the rule under the National Environmental Policy Act (NEPA) which requires federal agencies to consider the environmental impact of any major federal action.6 They contended that the government’s application of the NEPA to the interim final rule and related actions was illegal because its environmental assessment was defective, and it failed to complete a required environmental impact statement. The court found that the plaintiffs failed to show the government committed a clear error in complying with the NEPA and dismissed the claims.

Under the IDCPA, the government lifts a tuna embargo if it makes specific positive findings that the country conforms to the U.S. standards.7 The plaintiffs claimed the government’s affirmative findings for Mexico were flawed because Mexico did not meet its international obligations. After carefully reviewing each allegation, the court found many of them without merit and affirmed the government’s findings.

ENDNOTES
1. 16 U.S.C. § 1361 (2001).
2. Agreement for the Reduction of Dolphin Mortality in the Eastern Pacific Ocean (EPO), June 1992, 1 U.S.T. 230, 33 I.L.M. 936 (1994).
3. Declaration of Panama, Oct. 4, 1995, reprinted in 143 Cong. Rec. S379-01 (1997).
4. Pub. L. No. 105-42, 111 Stat. 1122 (1997).
5. Taking of Marine Mammals Incidental to Commercial Fishing Operations; Tuna Purse Seine Vessels in the Eastern Tropical Pacific Ocean (ETP), 65 Fed. Reg. 30 (Jan. 3, 2000).
6. See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983).
7. 16 U.S.C. § 1371 (2001).

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