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The 1995 Declaration of Panama

In September 1995, representatives of five major environmental organizations (the Center for Marine Conservation, the Environmental Defense Fund, Greenpeace, the National Wildlife Federation, and the World Wildlife Fund) opened discussions with Mexican officials exploring the potential for a multilateral agreement that might both strengthen international dolphin conservation efforts and lift U.S. tuna embargoes. The outcome of these discussions was a Declaration of Panama, signed by 12 nations including the United States on October 4, 1995. The Panama Declaration endorses the success of the La Jolla Agreement and adjusts the marketing policy of dolphin-safe tuna in recognition of this success. In exchange for modifications of U.S. law, foreign nations agreed to modify and formalize the La Jolla Agreement as a binding agreement. Changes in U.S. law envisioned included: 1) lifting of primary and secondary embargoes on tuna caught in compliance with the La Jolla Agreement; 2) permitting access to the U.S. market for all tuna (both dolphin-safe and non-dolphin-safe) caught in compliance with the La Jolla Agreement by IATTC member nations or nations that had initiated steps to become IATTC members; and 3) redefining "dolphin-safe" to include ETP tuna caught in purse seine sets in which no dolphin mortalities were observed.

Provisions of the binding agreement that would follow changes in U.S. law included commitments by signatory nations to: 1) adopt conservation and management measures to ensure long-term sustainability of tuna and other living marine resources of the ETP; 2) assess the catch and bycatch of juvenile yellowfin tuna and other living marine resources of the ETP and take steps to reduce or eliminate such bycatch; 3) implement the binding agreement through enactment of domestic legislation and/or regulations; 4) enhance mechanisms for reviewing compliance with the IDCP; 5) establish annual stock-specific quotas for dolphin mortality based on minimum population estimates; 6) limit total annual dolphin mortality to less than 5,000 animals; 7) establish a system of incentives for vessels' captains encouraging further reductions in dolphin mortality; and 8) establish and/or strengthen national scientific advisory committees to provide advice on needed research.

Without significant changes in U.S. law, Latin American nations threaten to abandon the IDCP, possibly resulting in significant increases in dolphin mortality. In mid-March 1996, in frustration with the slow pace of U.S. action on the Declaration of Panama, Mexican tuna fishermen announced that they would no longer participate in the IATTC's observer program nor abide by the IDCP dolphin mortality limits, and filed administrative petitions to carry observers in a Mexican national program. The Mexican government has not yet responded to this industry action. Subsequently, the Mexican fleet has agreed to carry IATTC observers, but abide by Mexican national mortality limits rather than IDCP limits.

The five environmental groups have pointed to the following positive aspects of the Declaration of Panama: 1) it would avoid the collapse of the current IDCP program with its independent observer monitoring and individual vessel mortality limits; 2) the total mortality limit of 5,000 dolphins would be achieved immediately rather than in 1999, and restrictive per-stock limits would be instituted for the first time internationally; 3) it would increase attention to the problem of bycatch that occurs in dolphin and non-dolphin sets; and 4) it lessens some of the current disparity in tuna labelling, which allows tuna caught outside the ETP with methods that are known to kill dolphins to be labelled as "dolphin-safe," and yet does not allow ETP tuna caught in dolphin sets with zero mortality to be so labelled. On this last point, critics point out that the disparity in labeling is lessened by weakening standards in the ETP to allow tuna to be caught by methods (i.e., chase and encirclement) that preliminary evidence indicates may be harmful to dolphins.

Stress on Dolphins from Chase and Encirclement

Dolphins expend enormous energy executing evasive maneuvers and attempting to escape the chase and encirclement by tuna seines. Animal protection advocates along with various scientists and environmentalists contend that the repetitive chase, tiring, herding, and encirclement of dolphins by tuna seiners is stressful to the animals, and that adverse, stress-related physiological problems may put dolphin populations at risk by increasing mortality and lowering birth rate. Preliminary and indirect evidence tends to suggest that dolphins may be negatively affected by repetitive chase and encirclement. More specifically, stress in this fishery appears to be associated with dolphin dental resorption, hypocalcemia, delayed sexual maturity and reduced pregnancy rates, darkened adrenal cortices, non-entanglement mortality, and enhanced analgesic behavior in the nets. Animal protection advocates maintain that any increase in encirclement of dolphins by purse seines would increase such risk. Critics of the tuna industry, in particular, argue that chase and encirclement of possibly several million dolphins each year (some of which are likely set upon repeatedly) cannot be beneficial to these populations. These advocates also argue that the lack of firm evidence that dolphin populations are recovering in response to lower mortalities may indicate that other factors, possibly stress, continue to negatively affect these populations.

In 1992, the National Academy of Sciences found no direct evidence of harm associated with chase and encirclement; however, stress to dolphins from chase and encirclement had not been extensively studied, and implications of any stress on individual animal and dolphin populations had not been determined. Others suggest that dolphins learn what to expect from, and adapt to, encirclement and release during tuna seining. These sources suggest that the more nervous and apparently stressed dolphins may be those that have never been encircled previously. However, the presence or absence of outward behavioral symptoms of stress may not correlate well with whether dolphins have incurred long-term physiological effects of stress.

Differences of opinion over how important this concern for dolphin stress might be would become the basis for major differences between various environmental and animal protection groups supporting tuna-dolphin legislation in the 104th Congress. Some environmental and animal protection groups have argued that the potential harm to the dolphins due to stress may put population recovery at risk; other environmentalists have argued that the potential harm due to stress (as yet unproven) does not outweigh the known harm of high mortalities of bycatch species in "dolphin- safe" sets. Critics of continued dolphin encirclement argue that, while dolphin mortality attributable to purse seining has been minimized, minimal effort has been expended to achieve similarly plausible reductions in incidental bycatch from school and/or log sets. These critics further argue that mitigation of excessive bycatch should be attempted before lessening the protection currently afforded ETP dolphins.

Issues in the 104th Congress

By 1995, U.S. tuna seiners operating in the ETP were prohibited from encircling three of the ten stocks of ETP dolphins, had a quota of only 105 dolphin mortalities, and could not market in the United States any tuna caught by encircling dolphins. Thus, the remaining five U.S. tuna seiners in the ETP did not make any sets on dolphins during 1995 and U.S. dolphin mortality was zero.

At an oversight hearing, held by the House Resources Subcommittee on Fisheries, Wildlife, and Oceans on June 22, 1995, a Department of State witness stated that, although U.S. trade embargoes had been successful in reducing dolphin mortalities, their success indicated that embargoes are no longer necessary. In addition, IDCP participants remained subject to embargoes with no prospect for relief, despite their excellent performance in reducing dolphin deaths. The State Department advocated three amendments to the MMPA: 1) exempting nations participating in the IDCP from the threat of U.S. embargoes on tuna and tuna products; 2) allowing U.S. tuna seiners to participate in the ETP yellowfin tuna fishery on an equal footing with foreign seiners; and 3) allowing U.S. citizens to serve as captain or crew on foreign seiners to help spread expertise necessary to further reduce dolphin mortality.

IATTC testimony at the same June 22, 1995 hearing included expressions of concern that some nations might withdraw from the IDCP if U.S. tuna embargoes were continued and presented data on the greatly increased catch of immature tuna and non- target bycatch by dolphin-safe fishing alternatives. IATTC's conclusions were that between 10 million and 25 million undersize yellowfin tuna with no commercial value could be discarded dead each year if encirclement of dolphins was totally replaced by school and log sets. IATTC further testified that if incidental mortalities of dolphins in the ETP tuna seine fishery were treated the same as the incidental take of other marine mammals authorized under the MMPA amendments of 1994 (P.L. 103-238), the permissible annual allowable mortality and serious injury of dolphins would likely exceed 50,000 animals.

Critics counter the IATTC's claims that excessive juvenile tuna bycatch would occur under a totally dolphin-safe regime by pointing out that this might occur only if no mitigation were implemented for school and log sets similar to efforts taken to minimize dolphin mortality in purse seine sets. In addition, these critics point out that allowable incidental takes under the MMPA are not adjusted to account for stress such as occurs during chase and purse seine encirclement of dolphins. In addition, the potential biological removal (PBR) levels under the MMPA for the two depleted ETP dolphins stocks (upon which the majority of purse seine sets are made) would be significantly less than 50,000 animals each year.

At the June 22, 1995 hearing, Earth Island Institute (EII) presented testimony, representing 16 environmental and animal protection organizations (including Defenders of Wildlife and the Humane Society of the United States), arguing that to ease U.S. tuna embargoes would be contrary to achievement of the MMPA's goal of approaching a zero mortality and serious injury rate incidental to commercial fishing, and that harassment and stress of dolphin populations were important considerations. EII stated that dolphin-safe tuna measures were responsible for achieving a substantial reduction in dolphin mortalities and that opening the U.S. market to tuna caught by encircling dolphins would permit dolphin deaths to almost double, since IDCP limits were substantially in excess of current dolphin mortality totals. EII also argued against IATTC management of dolphin conservation through the IDCP as a conflict of interest since the IATTC's primary role was sustainable tuna production. In addition, the IDCP was not based on a binding agreement, and to forsake U.S. embargoes would set a dangerous precedent for other environmental sanctions in U.S. law as a means to encourage responsible international environmental action.

The IATTC counters these claims. It notes that total mortality is mainly the result of two factors: the effort (number of sets) and the fishermen's performance (mortality per set). Dolphin-safe measures were an attempt to reduce the number of sets on dolphins; if these measures were responsible for the 97% decline in dolphin mortality since 1986, then one would expect to see a comparable decline in effort. The number of dolphin sets, however, has declined only 27%, while the performance of the fishermen has improved dramatically and the mortality per set has declined by 96%. IATTC argues that, since the fishery lowered dolphin mortality to about 3,274 animals in 1995 when the limit was 9,300, it is not reasonable to expect that mortality would double if the total limit was lowered to 5,000 and dolphin "per-stock" mortality limits were even more restrictive. The IATTC argues that its mandate includes both the conservation of tuna and dolphins and, given the large role that the IATTC's program has had in reducing dolphin mortality, its concern for dolphin conservation should be self-evident. Critics of IATTC, however, claim that no incentive, other than the enactment of dolphin-safe legislation, can be shown to coincide with the improved performance in reducing dolphin mortalities in the ETP in recent years.

Seven environmental groups (the Center for Marine Conservation, the Environmental Defense Fund, Greenpeace, National Audubon Society, the National Wildlife Federation, Whale and Dolphin Conservation Society, and the World Wildlife Fund) spoke in favor of eliminating the ban on U.S. imports of IATTC-supervised tuna harvest from the ETP. These groups voiced strong support for the IATTC's work and the efforts accomplished under the La Jolla Agreement. Rather than Congress unilaterally legislating to address concerns, these groups strongly recommended that a multilateral international approach be pursued. Subsequently, these groups were instrumental in bringing together parties that concurred in the October 1995 Declaration of Panama.

Generally, U.S. tuna seiners, the seven environmental groups listed in the previous paragraph, the Clinton Administration, and foreign tuna harvesting nations supported efforts to eliminate the ban on U.S. imports of IATTC-supervised tuna harvest from the ETP. Earth Island Institute and 15 other environmental and animal protection organizations argued against this. These two groups generally are defined by whether or not they believe the potential harm to dolphins due to the stress of chase and encirclement in dolphin sets outweighs the potential harm to the ETP marine ecosystem from incidental bycatch mortalities of other large marine fishes and sea turtles caught in "dolphin-safe" sets.

Subsequently, Earth Island Institute and other like-minded environmental and animal protection organizations raised questions concerning the objectivity and/or bias of the IATTC and questioned the credibility of this organization's science. Related concerns were whether IATTC observers are influenced to mis-report dolphin mortalities and dolphin school sizes (since EII and associated groups contend that the foreign fleet's dolphin mortality performance appears to be disproportionately better than that of the U.S. fleet), restricted public access to IATTC information and data impedes independent verification of IATTC conclusions, IATTC's strong discounting of the probability of stress-induced and other unobserved dolphin kills, and whether there is sufficient objective scientific peer review of IATTC programs. These groups argued that Congress should request a General Accounting Office investigation of IATTC practice and procedures prior to legislating any expansion of authority for the IATTC.

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