## Facts

- Environmental organizations challenged a Commerce Department determination affecting the “dolphin-safe” tuna label for tuna harvested in the Eastern Tropical Pacific (ETP).
- In the ETP, yellowfin tuna often associate with dolphin schools; fishermen use purse-seine nets to chase and encircle dolphins (“setting on dolphins”) to catch tuna, a practice historically linked to large-scale dolphin mortality.
- Federal statutes regulated the label: the Dolphin Protection Consumer Information Act (DPCIA) restricted “dolphin-safe” labeling for tuna caught by intentionally chasing/encircling dolphins; the International Dolphin Conservation Program Act (IDCPA) allowed a possible label change only if the Secretary made a science-based finding that setting on dolphins “is not having a significant adverse impact” on any depleted dolphin stock in the ETP.
- IDCPA required specific research, including a population abundance survey and stress-related studies, to inform a “final finding” due by December 31, 2002.
- On December 31, 2002, the Secretary issued a final finding concluding setting on dolphins was not having a significant adverse impact on depleted dolphin stocks; the rationale relied substantially on the asserted lack of sufficient evidence demonstrating significant harm.
- Plaintiffs sued under the Administrative Procedure Act (APA), arguing the agency failed to use the “best available scientific evidence,” treated scientific uncertainty as proof of no harm, and was influenced by trade/diplomatic considerations tied to international agreements.
- After a preliminary injunction preserving the preexisting label standard, the court considered cross-motions for summary judgment on the merits.

## Issues

1. Whether the IDCPA required an affirmative, scientifically supported finding of “no significant adverse impact,” or permitted the Secretary to rely on inconclusive evidence and the absence of proof of harm.
2. Whether the Secretary relied on the “best available scientific evidence” as required by IDCPA when issuing the 2002 final finding.
3. Whether the 2002 final finding was arbitrary and capricious under APA § 706(2)(A) due to reliance on incomplete science, inadequate reasoning, or consideration of impermissible factors.

## Decision

- The court granted plaintiffs’ motion for summary judgment and denied defendants’ cross-motion.
- The court held the Secretary’s December 31, 2002 final finding violated the APA and the substantive and procedural constraints imposed by the IDCPA.
- The court set aside the final finding.
- The result was that the stricter “dolphin-safe” labeling standard remained in effect; tuna caught by setting on dolphins could not be labeled “dolphin-safe” in the U.S. market under the challenged rule change.

## Legal Principles

- When Congress conditions regulatory change on a determination using the “best available scientific evidence,” an agency must ground its conclusion in the scientific record; it may not treat incomplete or equivocal science as establishing safety.
- A statutory requirement to find an activity “is not having a significant adverse impact” calls for an affirmative determination; it is not satisfied by stating that significant adverse impact has not been proven.
- Under APA arbitrary-and-capricious review, an agency must articulate a rational connection between the record and its decision and may not downplay contrary evidence, substitute speculation for analysis, or rely on considerations the statute makes irrelevant.

## Conclusion

The court invalidated Commerce’s dolphin-safe finding because it converted scientific uncertainty into an affirmative “no significant adverse impact” determination and failed to base the decision on the best available scientific evidence required by statute, rendering the action arbitrary and capricious under the APA.


Earth Island Inst. v. Evans, No. C 03-0007 TEH, 2004 WL 1774221 (N.D. Cal. Aug. 9, 2004)