Earth Island Institute v. Gutierrez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARTH ISLAND INSTITUTE, a 
California non-profit corporation;
THE HUMANE SOCIETY OF THE
UNITED STATES; THE AMERICAN
SOCIETY FOR THE PREVENTION OF
CRUELTY TO ANIMALS, a New York
non-profit corporation;
DEFENDERS OF WILDLIFE, a District
of Columbia nonprofit corporation;
ANIMAL FUND, a California
nonprofit corporation; THE No. 04-17018

OCEANIC SOCIETY, a California D.C. No.
nonprofit corporation; CV-03-00007-THE
INTERNATIONAL WILDLIFE COALITION,
OPINION
a Massachusetts nonprofit
corporation; ANIMAL WELFARE
INSTITUTE, a Delaware nonprofit
corporation; THE SOCIETY FOR
ANIMAL PROTECTIVE LEGISLATION, a
District of Columbia nonprofit
corporation; SAMUEL F. LABUDDE,
an individual,
Plaintiffs-Appellees,
v.

4607
4608 EARTH ISLAND INSTITUTE v. HOGARTH
WILLIAM T. HOGARTH, Assistant 
Administrator for the National
Marine Fisheries Service; CARLOS
M. GUTIERREZ, Secretary of
Commerce,
Defendants-Appellants,
and 
CAMARA NACIONAL DE LAS
INDUSTRIAS PESQUERA Y ACUICOLA
(CANAINPESCA); ASOCIACION
VENEZOLANA DE ARMADORES
ATUNEROS (AVATUN),
Defendants-Intervenors.

Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
November 16, 2006—San Francisco, California
Filed April 27, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Jerome Farris and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Chief Judge Schroeder
EARTH ISLAND INSTITUTE v. HOGARTH 4611
COUNSEL
Ryan D. Nelson, U.S. Department of Justice, Washington,
D.C., for the defendants-appellants.
Richard Mooney, Home Roberts & Owen, LP, San Francisco,
California, for the plaintiffs-appellees.
4612 EARTH ISLAND INSTITUTE v. HOGARTH
Laura Klaus, Greenberg Traurig, LLP, Washington, D.C., for
the amici curiae.
OPINION
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 Con-
gress’s enactment of the International Dolphin Conservation
Program Act (“IDCPA”) in 1997. 16 U.S.C. § 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 popu-
lation. 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 evi-
dence. 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
EARTH ISLAND INSTITUTE v. HOGARTH 4613
questions posed by Congress. See 16 U.S.C. § 1414a(a). We
held the agency should not have made what amounted to a
default finding of no adverse impact in the absence of conclu-
sive scientific data. Brower v. Evans, 257 F.3d 1058, 1071
(9th Cir. 2001) [“Brower II”].
The agency then did some additional studies and reached
the same conclusion in a Final Finding in December 2002.
The case is before us again to review District Court Judge
Henderson’s decision in round two that the Secretary’s Final
Finding is again arbitrary and capricious, because the agency
still has not complied with Congressional mandates for scien-
tific studies. Earth Island Inst. v. Evans, No. 03-0007, 2004
WL 1774221, at *30-31 (N.D. Cal. Aug. 9, 2004). We affirm
Judge Henderson’s well-reasoned decision.
I. Background
Because the history of this dispute is so important, we out-
line it in some detail. For greater detail, see our prior opinion
in Brower II, 257 F.3d at 1060-64.
In the Eastern Tropical Pacific Ocean (the “ETP”), off the
west coast of South America, schools of yellowfin tuna tend
to congregate underneath pods of dolphin. In the late 1950s,
fishermen started throwing large nets, called purse-seine nets,
around the dolphin pods to capture the tuna below. This
method of fishing is known as “setting” because the fisher-
men use explosives, chase boats, and helicopters to drive the
dolphins into the center of large nets, which then close like a
purse around all that is trapped inside. It is not disputed that
the technique has caused the death of more than six million
dolphins. By 1993, the extensive use of fishing with purse-
seine nets depleted the stock of three species of dolphins —
the northeastern offshore spotted dolphin, the eastern spinner
dolphin, and the coastal spotted dolphin — to levels below
their optimum sustainable population, which is the number of
animals which will result in the maximum productivity of the
4614 EARTH ISLAND INSTITUTE v. HOGARTH
population or the species. Today, these species of dolphin are
struggling to recover. Experts estimate that their populations
in the ETP are “growing” at a slow rate of anywhere between
-2% and 2% annually.
Congress has long been concerned with the high mortality
rate of ETP dolphins. In 1972, it enacted the Marine Mammal
Protection Act (“MMPA”), which was designed to “protect
marine mammals from the adverse effects of human activi-
ties.” See 16 U.S.C. § 1371 et seq.; H.R. Rep. No. 105-74(I)
at 12 (1997). The Act was subsequently amended to ban the
importation of tuna that failed to meet certain conditions
regarding dolphin mortality. 16 U.S.C. §§ 1371(a)(2)(B),
1411 et seq. In 1990, Congress passed the Dolphin Protection
Consumer Information Act, which barred tuna sellers from
labeling their products as “dolphin-safe” if the tuna was
caught by intentionally encircling dolphins with purse-seine
nets. 16 U.S.C. § 1385.
Given the choice of whether to purchase dolphin-safe tuna
or to purchase tuna not labeled dolphin-safe, American con-
sumers overwhelmingly chose to purchase tuna that was
labeled dolphin-safe. As a result, foreign tuna sellers who did
not adjust their fishing methods were quickly forced out of the
market. These sellers, who were primarily from Mexico and
South American countries, consequently began lobbying for
more flexible labeling requirements. In 1992, the United
States joined various Latin and South American countries to
form the International Dolphin Conservation Program. The
program was formalized into a legally-binding agreement
known as the Panama Declaration, pursuant to which the
United States’ delegation agreed to seek a weakening of the
dolphin-safe labeling standard and allow such a label to be
affixed to tuna caught with purse-seine nets as long as no dol-
phins were observed to be killed or seriously injured during
the set. See S. 39, 105th Cong. (1997); 143 Cong. Rec. 379-
401 (1997).
EARTH ISLAND INSTITUTE v. HOGARTH 4615
When the delegation asked Congress to change the stan-
dard, however, Congress refused to relax its strict require-
ments without affirmative evidence that the tuna fishery was
not significantly contributing to the slowness of the recovery
rate of already depleted dolphin stocks. See e.g., 143 Cong.
Rec. S.8299-8311 (daily ed. July 30, 1997) (statements of
Sens. Snowe and Stevens). To resolve this uncertainty, it
amended the MMPA and enacted the IDCPA. Together, the
legislation directed the Secretary of Commerce to determine
whether the “intentional deployment on or encirclement of
dolphins with purse seine nets” is “having a significant
adverse impact on any depleted dolphin stock in the [ETP].”
16 U.S.C. § 1385(g); see also 16 U.S.C. § 1414a. IDCPA
directed the Secretary to make an Initial Finding by March 31,
1999 and a Final Finding by December 31, 2002. 16 U.S.C.
§ 1385(g)(1),(2). The amended MMPA enumerated three
studies the NOAA had to conduct in making its determina-
tion:
(A) a review of relevant stress-related research and
a 3-year series of necropsy samples from dolphins
obtained by commercial vessels;
(B) a 1-year review of relevant historical demo-
graphic and biological data related to dolphins and
dolphin stocks referred to in paragraph (1); and
(C) an experiment involving the repeated chasing
and capturing of dolphins by means of intentional
encirclement [the CHESS study].
16 U.S.C. § 1414a(a)(3).
On April 29, 1999, the Secretary of Commerce made his
Initial Finding, concluding that there was “insufficient evi-
dence . . . that intentional deployment on or encirclement of
dolphins with purse seine nets is having a significant adverse
impact on any depleted dolphin stock in the ETP.” Notice on
4616 EARTH ISLAND INSTITUTE v. HOGARTH
Taking of Marine Mammals Incidental to Commercial Fish-
ing, 64 Fed. Reg. 24590 (May 7, 1999). Environmental
groups challenged the Initial Finding under the Administra-
tive Procedure Act, 5 U.S.C. § 706(2). District Judge Hender-
son granted Plaintiffs’ motion for summary judgment and
vacated the Initial Finding. See Brower I, 93 F. Supp. 2d at
1089.
The government appealed, and this court unanimously
affirmed. Brower II, 257 F.3d at 1060, 1071. We held the Sec-
retary could not rest on a lack of sufficient evidence, because
Congress specifically had ordered the Secretary to “make a
finding whether or not the fishery-related activities were
adversely impacting the dolphins [,which] requires a ‘yes’ or
‘no’ answer. . . .” Id. at 1066-67 (emphasis in original). We
further pointed out that the best evidence available indicated
that the fishery was having a significant adverse impact on the
dolphin stocks. Id. at 1071. Lastly, the NOAA had substan-
tially disregarded the MMPA by failing to conduct two of the
three statutorily-mandated studies. Id. at 1070. We admon-
ished the Secretary to follow Congress’s directive and con-
duct the studies enumerated in 16 U.S.C. § 1414a(a). See id.
After our affirmance of the district court’s rejection of the
Initial Finding, the agency expanded the dolphin research pro-
gram and conducted several new studies. These studies
included a review of the fishery’s indirect effects on the dol-
phin population, as well as an examination of whether
changes in the ecosystem could be contributing to the dol-
phins’ slow recovery, but this research did not include the
specific studies the statute called for. In addition to these non-
mandated studies, the agency also conducted a one-year
review of data as required by 16 U.S.C. § 1414a(a)(1)(3)(B).
These efforts culminated in a peer-reviewed report by the
NOAA, known as the Final Science Report.
On the basis of that Report, Dr. William Hogarth of the
NOAA issued a Final Finding on December 31, 2002, stating
EARTH ISLAND INSTITUTE v. HOGARTH 4617
that “the chase and intentional deployment on or encirclement
of dolphins with purse seine nets is not having a significant
adverse impact on depleted dolphin stocks in the [ETP].” Tak-
ing and Importing of Marine Mammals, 68 Fed. Reg. 2010-11
(Jan. 15, 2003).
II. The District Court’s Decision Now On Review
Plaintiff-Appellee Earth Island Institute (“Earth Island”)
and other environmental groups challenged the finding in dis-
trict court. Earth Island is a non-profit group that was founded
in 1982 to promote and work for the conservation and restora-
tion of the global environment. The group filed for summary
judgment, claiming the Final Finding was arbitrary and capri-
cious, and thus should not be implemented.
The matter came again before Judge Henderson. After
hearing arguments and carefully reviewing the prior history of
the dispute, Judge Henderson granted summary judgment for
Earth Island on three independent grounds. Earth Island Inst.,
2004 WL 1774221, at *30-31.
Each ground provided a separate legal basis for the district
court’s conclusion that the Secretary’s finding was arbitrary
and capricious, an abuse of discretion, or otherwise not in
accordance with the law. First, the district court said that
because the agency did not conduct the studies required by 16
U.S.C. § 1414a(a)(3) to produce data from which scientists
could draw population inferences, the Secretary “persisted in
his pattern of failing to diligently pursue two out of the three
mandated stress studies.” Id. at *8. Thus, the agency’s deci-
sion was arbitrary and capricious because it “entirely failed to
consider an important aspect of the problem.” Id. at *6.
Second, the agency’s no adverse impact determination ran
so counter to the best available evidence that its finding was
implausible. See id. at *12-14. In so holding, the district court
noted that the agency admitted there was insufficient scien-
4618 EARTH ISLAND INSTITUTE v. HOGARTH
tific data regarding most aspects of the dolphin research pro-
gram; the evidence that was available indicated the fishery
was having an adverse impact on dolphins; and any insuffi-
ciency of data should be resolved in favor of the species. Id.
at *25. This decision was rooted in the principle that Con-
gress’s intent was to change the status quo labeling require-
ments only if the fishery was not impacting the dolphin
stocks. Id. at *3. Finally, the court found, what it character-
ized as a “compelling portrait of political meddling,” id. at
*26, which indicated the Secretary relied on factors that Con-
gress had not intended it to consider by taking foreign policy
considerations into account. See id. at *25-30.
Because the agency “repeatedly failed to heed both Con-
gress’[s] intent and the teachings of the appellate court,” the
district court held that it would not remand the matter to the
agency for further studies. Id. at *32. Accordingly, it vacated
the Final Finding and declared that dolphin-safe labeling may
not be used for tuna caught with purse-seine nets. Id.
In this appeal, the government challenges each of the three
legal grounds on which Judge Henderson granted summary
judgment for Earth Island. The government’s principal con-
tention is that the district court erred in not deferring to
agency expertise in the methodology of the agency’s studies.
We conclude, however, that no deference to agency discretion
as to methodology is appropriate when the agency ignores its
own statistical methodology. In addition, because most of the
data the government relied upon was inconclusive, the district
court correctly held that the Final Finding was not rationally
connected to the best available scientific evidence. See
Brower II, 257 F.3d at 1070 (holding that the agency cannot
use insufficient evidence as a basis for finding no adverse
impact). We also agree with the district court that the Final
Finding was, to at least some degree, influenced by political,
rather than scientific, concerns.
EARTH ISLAND INSTITUTE v. HOGARTH 4619
III. Analysis
We review a grant of summary judgment de novo, applying
the same standards as the district court. Brower II, 257 F.3d
at 1065. Summary judgment is appropriate if there is no genu-
ine issue of material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(c).
A. The Agency’s failure to conduct statutorily-mandated
studies.
IDCPA contained Congress’s instruction that the Secretary
determine the fishery’s effect on ETP dolphins; the amended
MMPA told the Secretary how and on what data it should
base its determination. Among other studies, and relevant to
this appeal, the MMPA required the Secretary to conduct:
(A) a review of relevant stress-related research and
a 3-year series of necropsy samples from dolphins
obtained by commercial vessels; . . . and
(C) an experiment involving the repeated chasing
and capturing of dolphins by means of intentional
encirclement [the CHESS study].”
16 U.S.C. §1414a(a)(3). The issue here arises because the
agency, in conducting these studies, did not use sufficient
sample sizes to permit extrapolation to the greater ETP dol-
phin population. We affirm Judge Henderson’s decision that
the agency did not satisfy the statutory requirements, because
the data from the mandated studies was not sufficient to sup-
port a definitive finding as Congress directed.
[1] The necropsy study was intended to ascertain whether
dolphins were dying from indirect or delayed effects of the
purse-seine fishery. See 143 Cong. Rec. S. 8294 (July 30,
1997); 16 U.S.C. § 1414a(a)(3). For example, there was evi-
dence that dolphins swim at top speed to avoid the netting and
4620 EARTH ISLAND INSTITUTE v. HOGARTH
that they may suffer cardiac arrests and other fatal health
problems some time after they are released. The Secretary
understood the importance of this study in determining the
extent of such indirect deaths. In 1999, he stated that more
scientific research was necessary to better evaluate the effect
of the purse-seine fishery on depleted dolphin stocks in the
ETP and that answers to this question would come from “the
completion of the necropsy sampling program.” See Brower
II, 257 F.3d at 1063.
[2] Despite the Secretary’s conclusion that the completion
of the necropsy study was an important factor in determining
the fishery’s effects on dolphins, the agency concedes that it
failed to use sample sizes adequate to support population-
level inferences. The NOAA determined that a minimum
sample size of 300 dolphins per species was necessary to
make scientifically valid conclusions regarding fishery-related
effects. Consequently, according to its own data, the NOAA
should have performed necropsies on a total of 600 samples:
300 northeastern offshore spotted dolphins and 300 eastern
spinner dolphins. Instead, the NOAA studied a meager total
of 56 dolphins, which is less than ten percent of the requisite
minimum.
Despite the conceded failure to provide “meaningful and
reliable scientific insights,” the agency nonetheless claims
that it “completed” Congress’s mandate. It argues that
because the language of the statute says only that the agency
must conduct necropsies, but does not state how many dol-
phins it must use, this court should defer to the agency’s
methodology in using an insufficient sample size. In essence,
the agency contends that we must defer to the agency’s con-
duct of the necropsy study and that as long as it completed
any necropsy samples — even if it completed only one — it
satisfied the requirements of IDCPA.
Our deference to the NOAA’s chosen methodology need
not extend that far. An agency’s interpretation or application
EARTH ISLAND INSTITUTE v. HOGARTH 4621
of a statute is a question of law reviewed de novo. Partridge
v. Reich, 141 F.3d 920, 923 (9th Cir. 1998). Deference is due
only to a “reasonable interpretation made by the administrator
of an agency.” Whitman v. Am. Trucking Ass’ns, 531 U.S.
457, 481 (2001). Constructions that are contrary to clear Con-
gressional intent or frustrate the policy that Congress sought
to implement must be rejected. Chevron, U.S.A., Inc. v. Natu-
ral Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984). An
agency may not ignore factors Congress explicitly required be
taken into account. See Sw. Ctr. for Biological Diversity v.
U.S. Forest Serv., 100 F.3d at 1443, 1448 (9th Cir. 1996).
[3] Congress asked the agency to answer whether the fish-
ery is having an adverse impact on the dolphin population.
The agency’s posited interpretation — that the statute does
not require scientific studies from which population data
inferences may be drawn — is not a reasonable interpretation
and flouts Congressional purpose. When the U.S. delegation
signed the Panama Declaration, it promised South American
countries that it would ask Congress to weaken the dolphin-
safe labeling requirements. Congress refused to accept the
delegation’s recommendation to weaken labeling require-
ments without affirmative scientific evidence that the purse-
seine fishery was not significantly impacting the dolphin pop-
ulation. See 143 Cong. Rec. S. 8294 (July 30, 1997). There is
no basis for the Secretary’s position that Congress required a
scientific study upon which an important environmental deter-
mination would turn, but did not demand reliable results from
that study.
Indeed, we have already underscored the importance of
completing the mandated research in Brower II. We warned
the Secretary that failing to conduct the required research and
yet allowing a weaker labeling standard would “put [ ] the
cart before the horse.” Brower II, 257 F.3d at 1070. “The
agency was required by law to conduct stress research as a
prerequisite to its decision making.” Id. (emphasis in origi-
nal).
4622 EARTH ISLAND INSTITUTE v. HOGARTH
[4] The agency also failed to complete the statutorily-
required CHESS study. The agency was supposed to capture
dolphins, tag and release them, and then endeavor to recapture
the dolphins in order to assess whether the fishery was
impacting their health, reproduction, and survival. This
study’s shortcomings mirror those of the necropsy study. The
NOAA admits that the number of dolphins it used in the study
was too small to draw population inferences. This failure
again defies the statutory mandate that the Secretary assess
the impact of the fishery on dolphin populations. See 16
U.S.C. § 1414a(a)(1),(3). Congress did not provide for ad hoc
research on a limited number of individual dolphins. Id.
[5] Congress asked for a scientifically-sound determination
of the fishery’s impact on dolphins. The agency’s data from
the necropsy and CHESS studies cannot be extrapolated to the
larger dolphin population. Therefore, Congress still does not
have the answer to the fundamental question outlined in
IDCPA almost a decade ago, as to whether the fishery pro-
duces stress effects on the dolphins that prevent population
recovery. Congress still does not have scientifically meaning-
ful results from the studies it called for.
B. The best available scientific evidence does not
support the Final Finding.
Independent of its holding that the agency failed to support
its findings with statutorily-mandated data, the district court
also held that the finding of no significant impact was con-
trary to the overwhelming evidence. Although in recognition
of its technical expertise and experience, we often defer to the
analysis of an agency, especially within its area of compe-
tence, we need not do so when the agency’s decision is with-
out substantial basis in fact. Fed. Power Comm’n v. Florida
Power & Light Co., 404 U.S. 453, 463 (1972). An agency
action is not supportable if it did not consider all the relevant
factors and if there is no rational connection between the facts
found and the determination made. Pac. Coast Fed’n of Fish-
EARTH ISLAND INSTITUTE v. HOGARTH 4623
ermen’s Ass’ns. v. Nat’l Marine Fisheries Res., 265 F.3d
1028, 1034 (9th Cir. 2001). Because there is no rational con-
nection between the Secretary’s Final Finding and the evi-
dence outlined in the Final Science Report, we do not defer
to the agency in this case. See id.
After we told the agency in Brower II to consider the
results of the Congressionally-mandated studies, the NOAA
did not complete the studies. Rather the NOAA implemented
what it called an Organized Decision Process (“the ODP”)
through which it appointed two expert panels to address
whether ecosystem changes account for the slow growth rate
and whether the direct or indirect effects of the fishery on dol-
phins exceed appropriate mortality standards or rise to a level
that would risk or appreciably delay dolphin stock recovery.
Taking and Importing of Marine Mammals, 67 Fed. Reg. at
54633, 54641-42 (Aug. 23, 2002). The agency used the
results from these studies to make its Final Science Report, in
which it concluded that “[the dolphins’] population growth
rates are very low” and are “not consistent with recovery from
depletion for either stock [of dolphins].” NOAA, REPORT OF
THE SCIENTIFIC RESEARCH PROGRAM UNDER THE INTERNATIONAL
DOLPHIN CONSERVATION PROGRAM ACT 8, 27 (Sept. 17, 2002)
[“NOAA FINAL REPORT”]. The Final Science Report found
three possible explanations for the lack of recovery: (1) the
environment has changed naturally, diminishing its carrying
capacity for dolphins; (2) there is a lag time before recovery
begins; or (3) the purse-seine fishery is causing the slow
growth rate. Id. at 11. The Report conceded that the lag time
rationale was not viable, and accordingly, the agency focused
its inquiry on whether the environment’s carrying capacity or
the fishery was causing the slow recovery.
The Final Science Report conceded that due to conflicting
evidence and expert opinions, it was impossible to determine
whether the ecosystem was responsible for the dolphins’ slow
recovery, but found it doubtful. The report concluded that it
“appears unlikely that carrying capacity of the ETP has
4624 EARTH ISLAND INSTITUTE v. HOGARTH
declined by three- to- five-fold,” which would be the amount
of decline needed to account for the slow growth rate. Id. at
6.
The agency also looked to the direct and indirect causes of
dolphin deaths and found that the fishery is not directly killing
enough dolphins to account for the slow recovery, but that the
indirect effects of the fishery are inconclusive. The Final Sci-
ence Report outlined a number of possible indirect ways the
fishery causes dolphin deaths, including: dolphin mother-calf
separation during the highspeed chase and encirclement; acute
cardiac and muscle damage caused by the exertion of avoid-
ing or detangling from the nets (i.e. capture myopathy);
cumulative organ damage in released dolphins due to over-
heating from the chase; failed or impaired reproduction; com-
promised immune function; and unreported mortalities due to
undercounting by purse-seine fishing vessels. The report
found that while these indirect effects may explain the slow
recovery, conclusive data on many of these indirect effects is
not available. Noting this dearth of information, the report
concluded:
Is the sum of all of these fishery effects sufficient to
account for the lack of recovery? Unfortunately, the
answer to this central question is not clear. For some
effects, such as cow-calf separation, we have esti-
mates of the minimum size of the effect. For others,
such as stress effects and unreported mortality, we
have indications that effects may exist but do not
have any quantitative estimates of their size. It is
probable that all of these effects are operating to
some degree, and it is plausible that in sum they
could account for the observed lack of growth of the
dolphin populations. If the sum of the fishery effects
were a few dolphins per set or a few dolphins per
1000 chased, it would be sufficient to account for the
lack of recovery. However, without comprehensive
EARTH ISLAND INSTITUTE v. HOGARTH 4625
quantitative estimates for any of these effects, it is
not possible to reach more definitive conclusions.
Id. at 33. The report thus acknowledged it did not have data
to make reliable quantitative estimates of the indirect effects
of the fishery on the dolphins, but the Secretary nonetheless
concluded that the data support a finding of no adverse
impact.
In this appeal, the government contends the data support
the Final Finding, arguing the Secretary’s determination is
rationally connected to the evidence in the following three
ways:
(1) the evidence on the direct mortality of dolphins
combined with the minimum estimates of indirect
deaths due to cow-calf separation in the encirclement
phase is only one-third of potential biological
removal limits; (2) there is uncertainty as to the
extent of other indirect effects; and (3) there is insuf-
ficient evidence that these other non-quantifiable
indirect effects are of a significant magnitude to risk
or appreciably delay recovery of the depleted stocks.
Defendant’s Brief at 40.
The data does not furnish a rationale for, or evidence to
support, the Secretary’s finding. The Secretary concedes that
the sole piece of data helpful to his conclusion is that direct
dolphin kills constitute only one-third of the species’ potential
biological removal (“PBR”) level. (The PBR is the maximum
number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while still allowing
that stock to reach or maintain its optimum population size.
See Taking and Importing of Marine Mammals, 68 Fed. Reg.
2010, 2015 (Jan. 15, 2003)). The government, however, then
asks us to leap over the indirect effects its report documents
4626 EARTH ISLAND INSTITUTE v. HOGARTH
and to conclude that the fishery is not to blame for the slow
growth rate.
The Report made clear that when the indirect effects of the
fishery are taken into account, the direct effect on the PBR
may be at a level that endangers dolphin survival. It also
acknowledged that better data would have been available and
helpful to this assessment if the agency used sufficient sample
sizes in conducting its studies. As Dr. Hogarth of the NOAA
said in the Federal Register:
The ODP [ ] allows flexibility in determining what
the threshold should be, specifically because the
results of analyses on indirect mortality as well as
ecosystem changes might have called for a threshold
lower than PBR. For example, if there had been suf-
ficient sample sizes to make population-level infer-
ences of the impact of indirect effects, and/or if there
had been strong evidence of a dramatic reduction in
carrying capacity due to ecosystem changes, then a
level of mortality close to PBR might have been con-
sidered too high.
Id. (emphasis added). Accordingly, the fact that direct dolphin
kills constitute only one-third of the PBR — while marginally
supportive of the Secretary’s determination — cannot alone
provide the rational connection between the Final Finding and
the evidence.
The Secretary then points to the inconclusive nature of all
the agency’s studies and claims that the absence of evidence
allows him to make a change in dolphin-safe labeling require-
ments. This court already rejected such reasoning in Brower
II, 257 F.3d at 1070, when it held that there is no basis on
which to change the status quo if all of the evidence is incon-
clusive.
[6] Apart from the direct mortality inquiry, no other study
the agency conducted produced any data to support the Secre-
EARTH ISLAND INSTITUTE v. HOGARTH 4627
tary’s finding. The direct mortality study alone does not pro-
vide a rational connection between the best available
scientific evidence and the Secretary’s finding. We therefore
affirm Judge Henderson’s decision on the independent ground
that the Secretary’s finding is not supported by the record.
C. The Final Finding was improperly influenced by
political concerns.
The district court finally concluded that the Secretary’s
Final Finding was arbitrary and capricious, because it was
based in part on international political concerns. We have
seen this issue before when the government asked us to sup-
port its Initial Finding in Brower II. In that appeal, the Secre-
tary “stress[ed] that this case involves international concerns
and competing policies for protecting dolphins.” Brower II,
257 F.3d at 1065-66. We held, however, that weighing such
political concerns was “within Congress’s bailiwick,” and that
Congress’s clear intent was to have the findings be based on
science alone. Id. at 1066. Thus, if the agency’s decision was
in any material way influenced by political concerns it should
not be upheld.
Despite our admonition, the record shows that the NOAA
still took international policy concerns into account. The dis-
trict court noted:
[T]his Court has never, in its 24 years, reviewed a
record of agency action that contained such a com-
pelling portrait of political meddling. This portrait is
chronicled in documents which show that both Mex-
ico and the United States Department of State . . .
engaged in a persistent effort to influence both the
process and the ultimate finding, and that high
ranking-officials [sic] in the Department of Com-
merce were willing to heed these influences notwith-
standing the scientific evidence to the contrary.
4628 EARTH ISLAND INSTITUTE v. HOGARTH
Earth Island Inst., 2004 WL 177422, at *26.
[7] We agree with the district court’s conclusion that this
record demonstrates the Secretary was improperly influenced
by political concerns. In September 2001, the Secretary circu-
lated an internal memorandum and briefing packet, which
stated that “[t]he final finding is very important to the Gov-
ernment of Mexico, as the Mexican tuna industry is eager to
receive the dolphin-safe label for much of their tuna that is
imported into the United States. . . . A finding of ‘no signifi-
cant adverse impact’ would allow this to happen.” Id. In
response to this memo, the Secretary afforded the Mexican
and South American governments numerous opportunities to
bypass the ODP procedures for submitting comments for
agency review and instead plead their case directly to the
highest levels. Id.
As the date for the issuance of the Final Finding grew near,
political pressures intensified and the NOAA responded to
them. On December 2, 2002, Under-Secretary of Commerce
Grant Aldonas told the Mexican Secretary of the Economy
that “he would look into seeking a change of venue in the
event that the Final Finding was challenged.” Id. at *28. On
December 3, 2002, Secretary of State Colin Powell wrote
Secretary of Commerce Evans re-emphasizing the foreign
policy implications of the Secretary’s decision and going so
far as to argue that the evidence was not sufficient to find a
significant adverse impact. Id.
The effect of these political pressures is evident in the
change of content in the NOAA’s internal memoranda that
were distributed just before the Final Finding. On December
11, 2002, the NOAA staff prepared a set of talking points for
the Secretary. The document stated: “Although there is uncer-
tainty, most of the data we have point to the fishery as the
cause [of the dolphins’ failure to recover],” and “[a] determi-
nation of ‘no significant adverse impact’ is not supported by
the science.” Id. However, by December 16, 2002, the Secre-
EARTH ISLAND INSTITUTE v. HOGARTH 4629
tary had a revised set of talking points, which emphasized
larger foreign policy considerations. The new memo stated
that the agency’s basic goals are “dolphin recovery, continued
international cooperation, getting better compliance with the
[IDCP] Agreement, and maintaining a sustainable fishery.”
Id. at *28-29. It further stated, “We think we can package
either decision to demonstrate that we are conservation
minded, pro-active, and are dedicated to recovering dolphins
as well as cooperating with our international partners.” Id. at
*29.
[8] This evidence shows that the agency’s decision-making
process, which was devised to conduct a scientific analysis of
the fishery’s effect on dolphins, was influenced to at least
some degree by foreign policy considerations rather than sci-
ence alone, in contravention of the Congressional mandate
and our opinion in Brower II.
IV. Where We Go From Here
The government next contends that if it did not comply
with MMPA and IDCPA, this court should direct the district
court to remand to the agency for further studies. We have
already done this once, to no avail, in Brower II. Having again
failed to complete the studies, the government’s brief gives no
indication that the agency wants another chance to do what
Congress asked it to do. There is also no evidence that the
data Congress demanded would support a finding of no
adverse impact. Instead, the data gathered pursuant to the
MMPA indicate that there is a strong likelihood that the fish-
ery is having an adverse impact; the non-mandated studies
NOAA conducted do not indicate any adequate alternative
explanation for the lack of dolphin population recovery.
The district court therefore concluded the agency could not
have properly found that purse-seine fishery was not
adversely impacting ETP dolphins. The district court’s order
4630 EARTH ISLAND INSTITUTE v. HOGARTH
further directed the government to police enforcement of strict
dolphin-safe labeling requirements.
[9] The final issue before us on appeal is properly charac-
terized as whether we should remand for more studies or
vacate the Final Finding. Although the ordinary remedy when
a court finds an agency’s action to be arbitrary and capricious
is to remand for further administrative proceedings, a court
can order equitable relief or remand with specific instructions
in “rare circumstances.” Florida Power & Light Co. v.
Lorion, 470 U.S. 729, 744 (1985). We agree with the district
court that the government’s intransigence in following Con-
gress’s mandate renders this case one of the rare circum-
stances where generic remand is not appropriate. Congress
passed IDCPA in 1997 and its directive was clear to conduct
these studies. The reason was because Congress would
change the current labeling requirements only if the studies
proved that the fishery was not having a significant adverse
impact on the dolphins. The agency did not conduct two of
the three studies in a way that could produce meaningful sci-
entific results. There was, thus, no basis for the agency, with-
out the data Congress demanded, to make a definitive finding
of no adverse impact that would trigger a change in tuna
labeling requirements. Furthermore, IDCPA’s deadline to
conduct the studies has passed.
Congress intended that there be no Final Finding about
impact on the basis of a record like the one before us and
without studies conducted pursuant to the Congressionally-
prescribed methodology. We believe the proper course now is
to implement that intent. We, therefore, vacate the Secretary’s
Final Finding of no adverse impact. Without such a finding,
the agency is without Congressional authority to change the
qualifications for labeling tuna as dolphin-safe.
The district court went one step further, however, and
ordered that the Secretary of Commerce and the NOAA not
allow tuna products sold in the United States to be labeled as
EARTH ISLAND INSTITUTE v. HOGARTH 4631
dolphin-safe if the tuna were caught with purse-seine nets. It
also required any agent or employee of the agency who knew
of impermissible labeling to notify the appropriate enforce-
ment agencies. Earth Island Inst., 2004 WL 1774221, at *32.
[10] We do not believe it is appropriate or necessary for us
at this time to direct the NOAA and its agents to take enforce-
ment measures. That would go beyond the scope of our
review of the Final Finding. We, therefore, instruct the district
court to limit its mandate to one that directs the Secretary to
vacate the agency’s Final Finding of no significant adverse
impact. This means as a practical matter that pursuant to the
current statute, there will be no change in tuna labeling stan-
dards absent new Congressional directive. The label of
“dolphin-safe” will continue to signify that the tuna was not
harvested with purse-seine nets, and that no dolphins were
killed or seriously injured when the tuna were caught.
The judgment of the district court is AFFIRMED as modi-
fied.