Date: Thu, 11 Jan 1996
Subject: tuna/dolphin redux
From: HSUS Wildlife

In response to Dr. James Joseph's December 8 posting regarding bycatch in the tuna fishery of the Eastern Tropical Pacific (ETP).

The issue is very complex and the arguments for and against the two bills currently before Congress regarding the U.S. dolphin-safe policy have undoubtedly confused many people who genuinely want to understand the issue. I will start with a brief summary of the two bills:

The two bills before Congress are S. 1420, co-sponsored by Ted Stevens (R-AK) and John Breaux (D-LA), and S. 1460 (even the bill numbers seem designed to confuse everyone!), co-sponsored by Barbara Boxer (D-CA) and Joseph Biden (D-RI). S. 1420 will directly implement the Panama Declaration, but proposes to change the definition of dolphin-safe to include tuna caught with dolphin sets, as long as no dolphins were observed dead in the nets. It will also lift the embargo on dolphin-deadly tuna, although such tuna will not qualify for the dolphin-safe label. S. 1420 is supported by Center for Marine Conservation, Greenpeace, World Wildlife Fund, Environmental Defense Fund, and National Wildlife Federation. S. 1460 will implement the positive points of the Panama Declaration, but includes a number of amendments, most notably *retaining* the current definition of dolphin-safe (no setting of purse seine nets on pods of dolphins to catch the tuna swimming underneath) and *continuing to prohibit* the import of dolphin-deadly tuna. S. 1460 is supported by The Humane Society of the United States, Earth Island Institute, The Sierra Club, Defenders of Wildlife, and more than 70 other organizations. S. 1460 WILL lift the existing embargoes against dolphin-safe tuna from any nation that does not fish exclusively dolphin-safe. Nation-wide embargoes have punished individual fishers who are fishing dolphin-safe and Senators Boxer and Biden acknowledge this. ALL dolphin-safe tuna, regardless of national origin, will be allowed into the U.S. under S. 1460. S. 1460 also "levels the playing field" for U.S. fishers - they will once again be allowed to participate fully in the IATTC dolphin conservation program, with their proportionate share of the annual dolphin mortality limit set by the IATTC (current law sets the U.S. dolphin mortality limit at zero).

The rest of this posting is more or less a point-for-point rebuttal of Dr. Joseph's posting (In italic):

Despite the "dolphin-safe" cannery policies and U.S. embargoes, fishing on dolphins remains the most common fishing method in the ETP... For those who are interested in eliminating dolphin sets by non-U.S. countries, this has created a problem of leverage. Having already used the weapons of market closure and embargo with little effect, how can one influence other countries to do what one wants?

Throughout Dr. Joseph's posting, he comes to what I consider to be an erroneous conclusion - that actions taken by the U.S. (the development of the dolphin mortality mitigation measures by NMFS in the 1970s and 1980s, the embargoes imposed under the MMPA, and later the dolphin-safe laws passed in the 1990s) have had "little effect" on the ETP fishery. The purported goal of the embargoes and dolphin-safe laws was elimination of dolphin sets, because dolphin sets result in inevitable mortality and severe harassment. Since dolphin sets have not only not been eliminated but still occur in significant numbers, Dr. Joseph infers that U.S. actions have had little if any effect.

I consider this inference to be false because in conjunction with stronger U.S. laws, dolphin mortality has dramatically fallen. Dr. Joseph appears to conclude that mortality has dropped simply because fishers thought, without apparent motivation, that all of that extra work and effort and expensive gear modification that resulted in decreased dolphin mortality were good things to do. This strikes me as deliberately disingenuous. *I* conclude that dolphin mortality has fallen because fishers most definitely have been trying to satisfy the U.S., but by aiming for a lower goal (better performance; that is, lower dolphin mortality per set) than that which the U.S. had established (fewer sets).

In other words, the U.S. laws have in fact been the incentive for the lowered mortality per set. ETP fishers were trying to satisfy the U.S. without actually doing what U.S. laws required, since what the laws required (fishing for tuna without setting on dolphins) was even more difficult and expensive to accomplish than improved performance. In short, ETP fishers have been trying to take a short cut to retaining access to U.S. markets and their frustration arises because, not surprisingly (since the law is the law), they have not succeeded.

As for continued leverage to achieve what is in fact the goal of the U.S. laws (elimination of dolphin sets) - to say the U.S. no longer has leverage again strikes me as disingenuous. The reason we're in the situation we're in right now is because ETP fishing nations are STILL trying to regain access to our markets - if we had indeed lost this leverage, the fat lady would have already sung and Mexico and the other countries involved would have given up already and made good on their threats to go elsewhere with their tuna. The fact is, the U.S. processed tuna market is the largest in the world, and is fully three times larger than the markets of Asia and most of Latin America combined. The second largest market, Europe, is also dolphin-safe. Where will Mexico and Venezuela and Vanuatu sell their tuna, if they make good on their threat to walk away from the IATTC regulations and give up trying to satisfy the U.S.? This is an empty threat and caving in to it sets a very dangerous precedent for future conflicts between international trade issues and U.S. environmental laws.

Despite the continued setting on dolphins, mortality has declined markedly since 1986 (when Mexico first began full participation in the observer program). Some have claimed that the dolphin-safe policy is to be credited for reducing the number of dolphin sets, while others claim that it is due to improved performance by fishermen in releasing dolphins.

Again - how does Dr. Joseph account for this improved performance? What was the incentive? Apparently he thinks it just sort of happened, without any attributable motivation. Perhaps I'm missing something in his argument, but I hardly think it was out of the goodness of the hearts of the fishers themselves. I maintain that the MMPA and dolphin-safe policy (which in turn were the result of consumer pressure) WERE the motivation for the improved performance, but as I said above, ETP fishers were trying to satisfy the goal of the policy by an alternate route - and they have failed to do so. Lowered mortality alone, if it means that hundreds of thousands of dolphins a year are still chased, harassed, traumatized, and stressed, does NOT satisfy the MMPA or dolphin-safe policy.

These claims can be tested by examining trends in the two main factors that contribute to total mortality: the effort (number of dolphin sets) and fishermen performance (mortality per set). Since 1986, the mortality has declined from 133,000 to 3,605 in 1993 and 4,095 in 1994 - a 97% decrease. During this same time, the number of sets has declined 27% and the mortality per set has declined 96%.

Once again, I think Dr. Joseph is being deliberately disingenuous here. Those who support current dolphin-safe policy have NEVER claimed that the dramatic decrease in dolphin mortality was solely because of a decrease in number of sets - we have always given due credit to performance and lauded it. As I argue above, while it is certainly true that the dolphin-safe policy of the U.S. has NOT resulted in a dramatic decrease in number of sets, which was its intention, it IS the cause of the decrease in mortality, because (to hammer the point home) the ETP fishers were trying to satisfy what must have seemed to them to be the spirit, rather than the letter, of the law. But the bottom-line is, to dolphin-safe advocates, improved performance is good, but not good enough. Contrary to accusations, we are not demanding perfection; we are simply demanding full protection, not something half-baked.

Under the current U.S. PBR management approach, all stocks would be below PBR and all but three would be below the Zero Mortality Rate Goal (ZMRG).

In most fisheries, anthropogenic *mortality and serious injury* are the only factors that need to be considered in calculating PBR; that is, marine mammals are either killed or injured by fisheries activities or they are left alone. This is NOT the case in the ETP. Fishery activities kill or injure them OR they survive but are chased and stressed multiple times in their lives OR they are left alone (a distant third, with up to a million dolphins encircled each year). This additional factor of persistent, continuous, anthropogenic stress MUST be accounted for in calculating the PBR and the ZMRG of ETP dolphins.

The La Jolla Agreement of 1992 provided an impetus for this improved performance by setting limits on dolphin mortality that are to be ratcheted down each year to under 5,000 by 1999.

Again - how did the La Jolla agreement come about? Did it just spring full-blown from the brow of the IATTC or the individual member nations and fishery participants? Or was it inspired and motivated by the passage of the dolphin-safe laws in the U.S. in 1990 and 1992? I strongly urge Dr. Joseph to explain *why* he thinks performance improved in the ETP and why he thinks the La Jolla agreement came about. Otherwise, I am at a loss to understand how he can say that U.S. policy and laws (both the MMPA and the dolphin-safe laws) have had no effect on the ETP fishery.

The ETP fishery has the highest level of monitoring in the world; most other tuna fisheries that are presumed to be "dolphin-safe" have none.

It is certainly true and highly laudable that the ETP fishery has the highest level of monitoring in the world. However, it does not necessarily follow that high levels of monitoring mean that management practices in such a fishery are acceptable or sufficient. In addition, while it is true that monitoring is definitely at lower levels or even non-existent in other fisheries and that "dolphin-safe" does not mean no dolphins were killed when the tuna in the can was caught, again it does not necessarily follow that things are worse for dolphins in other fisheries or that "dolphin-safe" is an invalid designation.

Whether things are worse or better in other fisheries and how to manage them are actually not germane to this debate (although somehow Dr. Joseph is trying to imply they are). Amending current dolphin-safe law with either proposed bill would not affect the incidental take associated with most fishing methods. *Current and proposed* dolphin-safe laws address the fishing methods of setting purse seine nets on dolphins and using driftnets, wherever they may occur. Other methods are not covered by current law, the Panama Declaration, or either bill, and all four focus their strictest requirements on the ETP because it is the only fishery where dolphin sets are known to occur. However, the precautionary principle clearly directs us to give the benefit of the doubt to the animals and the environment in other fisheries and with other methods, and to act accordingly. Monitoring and research must be improved to determine just what is happening in these other fisheries. Protective laws must be passed to address these situations. Yet it hardly follows that loosening things up with dolphin sets (the driftnet provisions remain unchanged in all proposals) means things will tighten up with other fishing methods.

As for the definition of "dolphin-safe", it means that the tuna in the can was not caught by methods that deliberately target and harass dolphins and that inevitably lead to (completely avoidable) mortality. Again, in other tuna fisheries, all of which are currently dolphin-safe (except for driftnet fisheries), some dolphins may be killed while many are left alone; however, in the ETP today, some are killed while many survive but are severely harassed. I find distinguishing the former from the latter to be quite valid.

One of our fears, however, is that if there is no incentive to continue to participate in the IATTC observer program the countries would abandon the mortality limits and the observer monitoring of the ETP fishery altogether.

Again, as I noted above - if they did abandon the IATTC conservation program, as they threaten, where would they sell their tuna? How real is this threat? This appears to be blackmail. Even if they had another market, which is highly unlikely, do we want to give in to blackmail, where the forfeit is the integrity and strength of our environmental laws?

The Declaration of Panama would provide this incentive by redefining "dolphin-safe" to mean tuna caught from sets with zero dolphin mortality.

This argument suggests that the new "dolphin-safe" definition would be stronger than the current definition (the specific emphasis on "zero mortality" being the key). I have seen this explicitly stated by the five environmental groups that support S. 1420 - on December 22, the five groups issued a press release that stated "...the bill would strengthen the popular "dolphin-safe" label for canned tuna by requiring certification by on-board observers in the ETP that no dolphins died in catching that tuna." However, the new definition only requires zero mortality in *dolphin sets.* The press release misleadingly does not clarify this - the new definition would not cover log or school sets, or other fishing methods (other than driftnets, which are also covered by the current definition). Since the current definition prohibits dolphin sets altogether (and thus, of course, any mortality associated with them), how is the new definition stronger? To claim the new definition is stronger is outrageously misleading. In fact, the new definition *weakens* protection because it legitimizes hundreds of thousands of dolphins annually being harassed and even killed, as long as their deaths are not immediate and observed, which the current definition does not. Again, if I'm missing something here, I certainly invite Dr. Joseph, or anyone representing the five environmental groups that support S. 1420, to clarify their argument.

Preliminary studies illustrated what the tradeoffs in bycatch would be between dolphin sets and log sets. The 1993 data showed that for every 1 dolphin killed in dolphin sets, 19,542 discarded tunas, 138 mahi mahi, 25 sharks and rays, 56 wahoo, 3 yellowtail, 7 rainbow runner, I billfish, and 0.07 sea turtles would be killed in log sets.

Again, in my opinion Dr. Joseph is making an erroneous inference here. He infers that fishers must choose between log sets or dolphin sets (i.e. that there are no other choices). In this argument, he appears to make three assumptions:

  1. one, log sets are rare when dolphin sets are allowed;
  2. two, all dolphin sets, if they are prohibited, will be transformed, one for one, into log sets;
  3. three, non-dolphin bycatch in dolphin sets is negligible.

The first assumption is demonstrably false, as the Earth Island posting clearly pointed out - log sets have always occurred, at some times of the year they are preferred (because the big tuna move inshore seasonally and break the bond with dolphins), and they will continue to occur in significant numbers even if dolphin sets are no longer stigmatized in any way. The second assumption is unlikely; neither bill proposes an immediate prohibition on dolphin sets and even if they did, total sets would undoubtedly decrease (vessels would leave the fishery) and many of the remaining sets would become school sets, not log sets. School sets have intermediate levels of bycatch, levels that could undoubtedly be mitigated (as no doubt log set bycatch could), given some effort and concentration (just as dolphin mortality was lowered with some effort and concentration). The last assumption is untrue; while non-dolphin bycatch is, for most taxa, comparatively low in dolphin sets, it certainly occurs at measurable levels. In addition, one whole major taxon, invertebrates, seem to have far higher bycatch levels in dolphin sets than in log sets! Neither Dr. Joseph nor the five environmental groups ever mention this.

Finally, I don't think the choice is between dolphin sets and log sets at all. Log sets are bad news, no matter how you slice it. Eventually, they too should be prohibited or severely restricted. To truly sustain the ecosystem in the ETP, a fishery based largely on school sets should be the management goal (and in fact IS the goal of NMFS research, which is currently focused on the possibility of developing a commercially viable fishery based primarily on school sets).

There is also concern about catching the typically pre-reproductive tuna in log and school sets vs. the larger adult tuna typically associated with dolphins.

I agree that the effect of catching many juvenile tunas (which are then discarded) in log and school sets in order to catch an equivalent tonnage of adult tunas as are currently caught in dolphin sets (with relatively low levels of juvenile tuna discards) could eventually be detrimental to the tuna population. However, primarily targeting the large adult tunas that associate with dolphins, rather than smaller (although not necessarily pre-reproductive) tunas, is arguably WORSE for the tuna population in the long run. Tunas are relatively long-lived and fecundity typically increases with size in fish. Therefore one could argue (and I believe ecologists do just that) that fisheries targeting the largest adults target the most valuable members of the population. Targeting smaller fish (those caught more often in log and school sets) could be more sustainable in the long-term, if quotas are kept reasonable. These smaller fish currently have minimal reproductive value to the population and suffer from higher mortality than the largest adults anyway. I think it is eminently arguable that removing the most prolific breeders from a fish population could have more negative impact on recruitment than removing small to mid-range size fish. But regardless, let's be frank - the fishers prefer adult tunas because they are more "meat on the fin" and easier to process, NOT because they think it is better for the ecosystem or tuna population dynamics.

The thrust of the Earth Island argument is that because much of the U.S. fleet has been forced from the ETP to the western Pacific, that effort in all types of sets and subsequent bycatches have declined in the ETP. This assertion ignores several facts. The first is that just because boats have moved to the western Pacific doesn't mean that their sets on logs and school fish are now free of bycatch. All that has been achieved is to increase bycatches elsewhere.

Am I missing something here? Earth Island (as Dr. Joseph accurately recounts) only said that effort (and therefore levels of bycatch) has decreased *in the ETP.* Dr. Joseph seems to be accusing Earth Island of saying that effort EVERYWHERE (and therefore bycatch everywhere) has decreased. I fail to see where Earth Island said that in its posting. Perhaps Dr. Joseph is saying that, if effort in the ETP has decreased because of a general movement into the westPac, then effort (and therefore bycatch) must have de facto increased in the westPac - in short, he is arguing that the bycatch problem has merely been displaced, not eliminated. If this is so, that's an interesting and valid point to bring up, although since Earth Island clearly was talking about circumstances in the ETP only, I fail to see how Dr. Joseph's accusation fits in.

...other factors that have contributed to decreases in the number of sets over this 20-year period:
a. the movement of the U.S. fleet to the western Pacific during the early 1980's (unrelated to the dolphin issue)

I was not involved with this issue in the 1980's, but it was my understanding that at least one of the factors influencing the movement of the U.S. fleet into the westPac was the dolphin mortality mitigation measures mandated by NMFS (under the MMPA) for the ETP during the 1970's and 1980's - the "back-down", no night sets, no explosives, and so on. Other factors, which Earth Island DID acknowledge ("Many vessels have left the tuna fishery of the ETP, as a result of both general economics as well as due to dolphin protection restrictions"), also played a role. If I am incorrect in this, again I strongly recommend that Dr. Joseph explain WHY the U.S. fleet moved to the westPac - he says the movement was "unrelated to the dolphin issue," but fails to say to what it WAS related.

b. the decrease in small seiners (not included in Earth Island's figures) which was not due to the dolphin-safe policy because these seiners fished almost completely on log and school sets.

Again, I ask Dr. Joseph to explain WHY small seiners decreased in number, if it was not related to dolphin-safe policies.

If we compare the average number of sets from the observer data base before and after 1990, we can better determine the effect of the dolphin-safe policy on effort. The average number of dolphin sets declined 27% from the 1986-1989 period vs. the 1991-1994 period, but there was little change in the number of log sets (+4%) and school sets (-5%). The change is mostly due to the movement of the U.S. fleet to the western Pacific.

While it is true that these numbers indicate that the effort reduction from immediately pre - to immediately post - 1990 essentially came from dolphin sets and not log and school sets, they also demonstrate something counter to Dr. Joseph's implication that if dolphin sets are prohibited, they will all be transformed into log sets. While dolphin sets declined by 27% in this 8-year period, log and school sets essentially remained at the same levels (i.e. the decrease in the former did not translate into a concomitant increase in the latter). And if in fact the change in the number of dolphin sets was mostly due to the exodus of the U.S. fleet from the ETP, why didn't the number of log and school sets also decline to a comparable extent? Is Dr. Joseph claiming that the U.S. fleet never made log or school sets? It would be helpful if Dr. Joseph clarified the cause and effect of these changes.

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