EARTH ISLAND INSTITUTE v. GUTIERREZ
The Ninth Circuit Court of Appeals today released an opinion in EARTH ISLAND INSTITUTE v. GUTIERREZ, No. 04-17018, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Circuit Judge, Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.
SCHROEDER, Chief Circuit Judge:
This case concerns the practice of catching yellowfin tuna by encircling dolphins with purse-seine nets. The dispute over whether tuna sellers may label tuna as dolphin-safe if caught with such nets has a long history that for us begins with Congress’s enactment of the International Dolphin Conservation Program Act (”IDCPA”) in 1997. 16 U.S.C. ยง 1385 (1997). The statute required the Secretary of Commerce through the National Oceanic and Atmospheric Administration (”NOAA”), to conduct certain scientific studies and determine whether or not the tuna fishery is affecting the dolphin population. According to the bill’s proponents, Congress would weaken the then-strict tuna labeling requirements, and permit broader use of “dolphin-safe” labeling, only if the Secretary found that the fishery was not having a significant adverse impact on already depleted dolphin stocks. In 1999, the Secretary made an Initial Finding, despite inconclusive evidence, that the fishery was not having an adverse impact on the dolphin population. Environmental groups then brought suit in federal district court to enjoin the Secretary’s implementation of weaker labeling standards. The district court held the agency’s finding of no adverse impact was arbitrary and capricious in light of the inconclusive evidence. Brower v. Daley, 93 F. Supp.2d 1071, 1087 (N.D. Cal. 2000) [”Brower I“]. On appeal to this court, we affirmed the district court’s rejection of the Initial Finding, because the agency was required, but had failed, to reach a definitive answer to the . . .