Copyright 2002 Defenders of Wildlife (Reprinted with Permission).
About a day out of port, the captain of the Mexican purse-seiner -- a boat more than 200 feet long and weighing some 600 tons with a huge fishing net -- throws the vessel out of gear and "lays to" in the warm waters of the eastern tropical Pacific Ocean (ETP). This is prime fishing territory for yellowfin tuna. Approximately one quarter of the world's population of the fish -- weighing up to 125 pounds apiece -- swim across this 7-million-square-mile stretch of ocean from the coast of southern California to Peru. They are the main target of the multi-billion dollar canned tuna trade.
From the purse-seiner's upper deck, a helicopter takes off across the cerulean sea. Its crew is looking not for tuna but for schools of spotted or spinner dolphins skimming along the surface in pods of up to a thousand or more. For reasons unknown to scientists, these dolphins are often accompanied by substantial schools of large, mature yellowfin tuna.
The helicopter pilot sights the circling white gulls and frigate birds first, then the sudden high, arching leaps from a large group of spotted dolphins below. They have moderately long and slender beaks, small flippers and streamlined bodies with heavy dark spots on their ventral surfaces. They are among the most gregarious of all cetaceans. Yet as the helicopter pilot radios back to the seiner and hovers close above the school, the dolphins begin to flee. The animals are capable of reaching speeds of more than 21 knots in only two seconds -- but they are no match for the loud, whirling object pursuing them.
While the boat rapidly approaches, the helicopter "herds" the dolphins, looking to divide and exhaust the pod so it can be more easily netted. Below the surface, the big tuna continue to follow. The chase is conducted over miles of ocean; an average chase time is somewhere between 20 and 40 minutes but can sometimes reach several hours. When the seiner closes to within a mile of the activity, speedboats are dispatched. These race in to circle the dolphins, forcing them into an ever-tighter array. A heavy skiff is launched off the seiner's stern to anchor its enormous net. The seiner then moves away from the skiff and begins to release the massive, mile-long fence of red-mesh net buoyed by large yellow floats and reaching a depth of several hundred feet. From cables the net is drawn taut at the bottom -- similar to drawstrings on a purse -- to prevent any escape of the frantic dolphins. The vessel's powerful hydraulic system hauls the net close and pulls it upward. Dozens of dolphins are slung together in the middle. Nursing calves are separated from their mothers. Some dolphins are severely injured, others are utterly exhausted. A tapered flipper bends precariously, a white-tipped beak gasps for air. The great spool conveys the dolphins ever higher.
Finally, toward the end of the "set" -- which begins with the lowering of the net and ends when the dolphins are released -- most of the net is hauled back on board and the captain puts the seiner into reverse. This is known as the "backdown" procedure. As the slack of the net eases, a special panel of fine webbing -- designed not to snag the dolphins -- drops below the water line and spills them back into the open ocean. On deck the tuna are scooped out of the net, then dumped into a shoot that's connected to storage wells on a lower or "wet" deck in a series of secondary shoots. They'll go into freezers and on to a Mexican cannery.
But the "backdown" procedure does not always go smoothly. Especially not at sunset, when low light can exacerbate problems both above and below water. Sometimes it's human error, other times strong rip tides or currents. Entire schools of dolphins may be seen fighting for breath against the strangling canopy of netting created by currents of water during backdown. Hundreds, sometimes even thousands, of dolphins in one set have suffocated in this manner. Others, suffering broken beaks or pectoral fins torn from their sockets, die later. These are called "disaster sets."
Although fishermen have used their knowledge of the tuna-dolphin relationship to catch tuna on hook-and-line for centuries, it is only since the debut of high-tech purse-seiners in 1959 that dolphins have been so abused. Tragically, the big ships have killed at least 7 million dolphins in the process of catching tuna.
Due to public outcry, U.S. laws and international agreements, the official numbers of dolphins killed by purse-seiners have dropped from an estimated 350,000 per year through the 1960s, to 133,000 as late as 1986, to a preliminary estimate of 1,636 in 2000. That figure, however, is only based on observed mortality. The stark reality is, we do not really know how many dolphins are still dying.
Three dolphin species in the eastern tropical Pacific are listed as "depleted" under the U.S. Marine Mammal Protection Act (MMPA): the coastal spotted dolphin, northeastern offshore spotted dolphin and eastern spinner dolphin -- and none have shown signs of recovery. The latest study, released in 1999 by the National Marine Fisheries Service (NMFS), identified physiological stress, calf mortality caused by separation from mothers and under-reporting of direct kills -- all caused by the tuna-seining industry -- as the most likely reasons. Thousands of dolphins are probably still killed during encirclement to catch tuna -- out of sight and thus out of mind.
An international agreement now requires an observer to be on board all ETP tuna purse-seining vessels and to document all dolphin deaths. But as Christopher Croft, who spent 1984 through 1988 as a NMFS observer and went on to found the nonprofit Dolphin Coalition, recalls, "Fishermen assisting the release of dolphins from the manned rafts and speedboats can and do remove the bodies of the dead animals from the net before the observer can see them. In fact, attempting to keep the observer from seeing dead dolphins was sometimes part of the crew's job description, and is even more so today."
Having himself experienced "pressure to under-report kill levels," Croft believes that "due to bribes and threats," observer reports are "grossly inaccurate."
The annual purse-seine fishing effort for yellowfin tuna has increased by 27 percent over the last five years in the ETP. Despite years of effort trying to ensure that canned tuna is initially taken by "dolphin-safe" methods -- without encirclement of dolphins -- sets on dolphins have soared to more than 10,000 annually over the past several years.
American vessels have mostly left the region for the abundant skipjack tuna fishery in the western Pacific, where the tuna-dolphin association doesn't occur, and today the Mexican industry catches by far the most yellowfin tuna -- and chases, nets and kills the most dolphins. Its record of violations is also among the worst recorded by the international Inter-American Tropical Tuna Commission (IATTC): unlawful night sets, improper backdown procedures, even the unlawful use of underwater explosives. While the commission has not released any specifics, it has acknowledged that counts of dolphin deaths reported by Mexican observers are 50 percent lower than what has been witnessed by IATTC observers on the same vessels.
Mexico's dismal record led the United States to embargo all canned tuna imports from there and several other countries in 1990. But in April 2000, pressured by trade groups, the Clinton administration lifted the embargo on Mexico.
Led by Defenders of Wildlife, 11 environmental and animal protection groups have mounted repeated legal challenges to protect dolphins from tuna fishermen. One lawsuit has challenged repeated U.S. attempts to weaken the standards behind "dolphin-safe" labels -- the ones you see on cans of tuna in the grocery store -- in the name of free trade. Although the conservationists won both the case and a government appeal, they fear that Commerce Secretary Donald Evans may finally succeed in weakening the label standards as early as this year. Another suit charges that the Commerce Department failed to follow U.S. law in issuing rules for tuna imports and challenges, among other matters, the United States' continuing to allow dolphin-netted tuna to be sold in American stores. Defenders Vice President for Legal Affairs William Snape says: "Despite environmentalists winning a great decision to uphold the 'dolphin-safe' labeling standards, the fact is we currently have little way of assuring that these labels are accurate."
Within a decade after purse-seine netting was introduced, it was evident that this form of fishing was responsible for the largest marine mammal kill in history. The population of eastern spinner dolphins had fallen by 80 percent and the offshore spotted dolphin population was cut in half, leading to Congress' passage of the MMPA in 1972 with "the immediate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be reduced to insignificant levels approaching a zero mortality and serious injury rate." Observers were placed aboard American tuna boats to monitor compliance, and a research program was funded to develop dolphin-saving gear and techniques. American fishermen came up with the innovative, specially webbed panel and backdown procedures. The U.S. fleet significantly reduced its dolphin mortality rate by the early 1980s. But foreign fleets, led by Mexico but including boats from Venezuela, Colombia, Ecuador and other Latin nations, soon took over most of the tuna fishing in the eastern tropical Pacific -- and dolphin mortality numbers skyrocketed again.
A conservation breakthrough came when a young man named Sam LaBudde signed on as a cook aboard a Mexican seiner and provided video footage of the dolphin slaughter, causing a sensation on network television and in congressional hearings. The San Francisco-based conservation group Earth Island Institute sparked a national boycott of canned tuna. On Earth Day 1990, the H.J. Heinz Company -- owner of the largest tuna processing company in the world -- joined with its subsidiary StarKist to announce they would only purchase tuna caught using dolphin-safe methods. Chicken of the Sea and Bumble Bee quickly followed suit, bringing 90 percent of the American market into line. Later that year, Congress passed legislation defining a "dolphin-safe" tuna label. A successful lawsuit by Earth Island Institute forced the United States to impose an embargo against Mexico and other nations that didn't adhere to U.S. standards. In 1992, Congress enacted the International Dolphin Conservation Act, which specifically outlawed imports of any tuna caught during encirclement of dolphins.
Then things began to get sticky. Mexico protested to a panel of the international General Agreement on Tariffs and Trade (GATT), which concurred that the U.S. action went against standards of free trade. The matter wasn't pursued further until 1995, when then-Mexican President Ernesto Zedillo threatened to take up the matter with the new World Trade Organization. By then, negotiations were well underway among 12 nations that maintained purse-seine operations in the ETP. Clearly, a cooperative effort to protect dolphins was necessary -- but the question became how much the United States would compromise its commitment to dolphins in the interests of free trade.
Representatives of the tuna-catching countries agreed to place caps on their dolphin mortality, with the goal of reducing mortality to levels approaching zero, in a document called the Panama Declaration of 1995. There would be international observers placed aboard all boats. However, the conservation effort was weakened by redefining "dolphin- safe" tuna to mean tuna harvested without observed dolphin mortality rather than without any encirclement of dolphins. In other words, the tuna is considered "dolphin-safe" if the observer doesn't happen to see a dolphin die. Equally significant, a company could choose whether to use a "dolphin-safe" tuna label -- in which case they had to meet the U.S. standards -- or they could decide not to use any label at all.
Some environmental groups voiced fears that Latin nations would dismantle their dolphin protection programs if the U.S. embargo continued. While helping hammer out the Panama Declaration, the National Wildlife Federation, Center for Marine Conservation (now the Ocean Conservancy), World Wildlife Fund and Environmental Defense Fund also helped craft new congressional legislation that would be in line with the international accord. This became a source of acrimony with other organizations, including Defenders of Wildlife, which wanted to uphold the more stringent intent of the original "dolphin-safe" label law passed in 1990.
In 1997 Congress passed the International Dolphin Conservation Program Act (IDCPA), implementing the provisions of the Panama Declaration. Under the new law, if a country met its new obligations and didn't exceed certain dolphin mortality limits, it could again export tuna to the United States. But the law included stricter language on reducing bycatch. The legislation also stopped short of endorsing the Panama Declaration's call for an immediate change in the "dolphin-safe" labeling standard. It would be up to the Secretary of Commerce to determine, after required scientific study, whether encircling dolphins was having "a significant adverse impact on any depleted dolphin stock." If not, the label could be revised.
The IDCPA became effective in March 1999. Six weeks later, Commerce Secretary Richard Daley ruled that there was "insufficient evidence" of any "significant adverse impact" to dolphins from purse-seining. Now a weakened "dolphin-safe" label could be applied even where dolphins were being chased, harassed and netted -- so long as an onboard observer reported that no dolphins had been killed or seriously injured during the fishing set.
The label lawsuit brought by Earth Island, Defenders and others contended that the Secretary's ruling ignored the legally mandated study by the agency's own marine scientists. These had specifically stated, among other things, that "fishery-related stresses could plausibly affect mortality or reproduction," that severe muscle damage "could cause unobserved mortality," and that there may well be "a very high additional number of dead dolphins not included in the reported kill." The simple fact was that the impacted dolphin populations were not increasing even though reported mortalities had decreased significantly since 1991.
On April 11, 2000, U.S. District Court Judge Thelton Henderson agreed with the conservationists. His ruling restored the meaning of the original "dolphin-safe" label, prohibiting its application to tuna caught by intentionally netting dolphins.
The very next day, the Commerce Department responded by announcing that Mexico had met all requirements, hence the 10-year embargo on Mexican tuna would be lifted. To use the dolphin-safe label, the Mexico tuna industry had to demonstrate only that they were abiding by U.S. standards of non-encirclement of dolphins during an entire trip.
By September, Earth Island and Defenders learned that illegally labeled tuna was finding its way into American supermarkets. The Dolores brand, originating from Mexico's largest tuna company, Pescados Industrializados, S.A. de C.V., or PINSA, bore a dolphin-safe message -- "Amigo del Delfin" -- but without any of the required tracking or verification paperwork. Based in Mazatlan, PINSA processes between 50 and 60 percent of Mexico's canned tuna and is believed to be responsible for more dolphin deaths than any other cannery. Subsequent investigation by Earth Island revealed that as many as five million cans of the Dolores brand were smuggled into Chicago, Los Angeles, Sacramento/ Stockton, San Diego, San Francisco and Washington, D.C., in 2000.
Recent advances may prove beneficial to dolphins. According to Earth Island's Executive Director David Phillips, who also directs its International Marine Mammal Project, fishermen in the ETP have recently caught very large runs of free-swimming mature yellowfin tuna -- not in association with dolphins -- off the coast of South America. New "remote sensing" techniques such as satellites, radar and lidar (which transmits light rather than radio waves) offer possibilities of locating such schools of tuna. Lidar and high-resolution sonar may be useful for studying conditions where the tuna-dolphin bond breaks up and for studying tuna at night to determine whether they separate from dolphins.
Another method of catching tuna involves using man-made buoyant objects called fish aggregating devices, or FADs, which attract tuna and other fish. FADs pose a bycatch problem, however. "With fish aggregation, you wind up taking a huge cross section of marine wildlife in a very unselective fishing method," says Scott Burns, World Wildlife Fund's marine stewardship counsel. "You get marine turtles and sharks, not to mention juvenile tuna that haven't lived long enough to reproduce."
But as the International Marine Mammal Project's Assistant Director Mark Palmer points out, the magnitude of such bycatch associated with FADs is far lower than that in other fisheries. While perhaps 500 sea turtles a year may get entangled in seine nets, this fate befalls as many as 50,000 turtles annually in U.S. and Mexican shrimp trawls.
The number of vessels in the ETP purse-seine fleet soared from some 150 in 1993 to 200 in 1999. At the same time, their total carrying capacity increased almost 60 percent in less than a decade. The numbers of FAD sets as well as the number of sets on dolphins have increased substantially. And there is no doubt that these boats are now overfishing the yellowfin tuna resource. The 1999 catch of 270,000 metric tons was considerably higher than the 240,000 metric tons recommended by the IATTC's scientific staff, with about 40 percent of that total taken by Mexico. The anticipated decline in yellowfin numbers is expected to take several years to show up through reduced catches. The logical approach of regulating the purse-seine fishery based on a certain number of allowable sets on dolphins, sets on FADS and sets on free-swimming tuna is not being considered.
There is another concern about tuna consumption as well. A National Academy of Sciences (NAS) report in 2000 estimated that 60,000 women nationwide are putting their fetuses "at risk" of brain damage because of mercury in the fish they eat -- including tuna. Last year, the Food and Drug Administration (FDA) warned pregnant women not to eat shark, swordfish, king mackerel or tilefish. But the FDA conspicuously omitted tuna from that list. In March, the watchdog Environmental Working Group accused the FDA of bowing to industry pressure, maintaining that of the five most popular seafoods (shrimp, trout, salmon, catfish and tuna), only tuna has worrisome mercury levels.
With these renewed concerns about mercury in tuna and continuing questions about the international agreement, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit upheld the decision on maintaining the high "dolphin-safe" standards last July. But in December, the U.S. Court of International Trade ruled against Defenders and its allies in their broader lawsuit on the rules of the tuna-dolphin program.
In February, Defenders appealed the finding, and the case is expected to be heard later this year. In the meantime, a second phase of the NMFS study of the tuna-dolphin situation is expected to be completed this summer, to be followed by Commerce Secretary Donald Evans' new label finding by December.
Steve Reilly, in charge of the latest NMFS research at the Southwest Fisheries Center, said in April that he was "in the eleventh hour of pulling together all the latest information" to address the question of whether there was significant adverse impact from chasing and encircling dolphins.
"This stuff is really politically sensitive, so I can't tell you what the data say right now," he said. One of NMFS's recent findings, published in 2001, did indicate a possible deficit of dolphin calves in relation to the number of lactating females.
Albert Myrick, who spent nearly 20 years as a NMFS biologist working solely on the ETP's tuna-dolphin situation, says, "It is obvious to the majority of us who have studied this problem that there is precious little evidence to support a decision that the fishery does not have a significant adverse impact on dolphins. Indeed, 'the best available science' demonstrates that precisely the reverse is true."
Myrick cited NMFS reports "that the same dolphin school may be set on repeatedly within a very short time (e.g., in a single week), by a typical purse-seine vessel" and that there are thousands of cases annually where sets are interrupted in mid-course. "This continuous harassment physically disrupts the normal behavior, composition and interrelation- ships of a school including feeding, nursing, courting, communication and reproduction," read the reports.
Myrick also pointed out that more frequently exploited spotted dolphin populations reached average age of sexual maturity significantly later (11.1 years) than those less frequently targeted (9.8 years). "Pregnancy rates were also distinctly lower in the more frequently exploited populations," he says. Additionally, he says, dolphins dying during chase or from stress after release would probably sink unobserved and uncounted.
Yet it remains very much an open question whether the new Commerce Secretary will follow the scientists' lead this time -- or once more bow to Mexico and the politics of free trade at whatever cost.
There has been some progress. Two Mexican tuna canneries -- both based in Baja, California -- have signed pledges with Earth Island Institute to buy and sell only dolphin-safe tuna for markets in Mexico and for export. Defenders has been urging American tuna companies and grocery stores to commit to trading only tuna not caught in association with dolphins. The three largest firms -- StarKist, Bumble Bee and Chicken of the Sea -- plus the Safeway national grocery store chain have pledged to remain dolphin-safe regardless of any future labeling change.
But the Mexican government continues to threaten to drop out of the international agreement and go to the World Trade Organization unless the U.S. government continues to gut dolphin protection laws. Clearly, the battle for the dolphins is far from over.