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Document Type

Case Note

Abstract

The Secretary of Commerce (Secretary) erred when he issued, prior to receipt of substantiating research, an Initial Finding that a certain fishing technique did not harm dolphins. The Secretary erroneously concluded that the mere lack of evidence (without research) was sufficient to substantiate his Initial Finding that there was no evidence that the fishing technique harmed dolphins. The United States Court of Appeals for the Ninth Circuit, in its July 2001 decision Brower v. Evans, affirmed judgment in favor of plaintiff and set aside the Secretary's Initial Finding. The broad implication of the holding in Brower v. Evans is that the government must comply with congressional statutes even if such laws are contrary to international trade. The narrow holding of this case is to continue efforts to protect dolphins in the Eastern Tropical Pacific Ocean (ETP) even though such actions might conflict with international trade. The Secretary's support of a less protective standard to apply to dolphin safe tuna labels apparently applies most directly to international vessels. Brower v. Evans represents an international trade issue because United States vessels do not use fishing techniques that are harmful to dolphins. The Secretary's action is contrary to recent congressional acts that indicate a trend toward protecting the ETP dolphins from certain fishing practices, such as purse seine fishing. Such acts also indicate a growing awareness that fishing not only causes injuries and death to dolphins, but also causes physiological stress. This Casenote advocates for the court's conclusion that the Secretary's decision to allow more relaxed tuna labeling guidelines undermines the Administrative Procedures Act (APA) and congressional mandates designed to protect dolphins. From a policy standpoint, upholding the Secretary's decision will thwart efforts to protect ETP dolphins.

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