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
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

4608 EARTH ISLAND INSTITUTE v. HOGARTH
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. 

EARTH ISLAND INSTITUTE v. HOGARTH 4611
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 Congress’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 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

4612 EARTH ISLAND INSTITUTE v. HOGARTH
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 conclusive 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 scientific 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 outline 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 fishermen 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 purseseine 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

EARTH ISLAND INSTITUTE v. HOGARTH 4613
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 activities.” 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 consumers 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 dolphins were observed to be killed or seriously injured during

the set. See S. 39, 105th Cong. (1997); 143 Cong. Rec. 379-

401 (1997). 

4614 EARTH ISLAND INSTITUTE v. HOGARTH
When the delegation asked Congress to change the standard, however, Congress refused to relax its strict requirements 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 determination:

(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 demographic 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 evidence . . . 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

EARTH ISLAND INSTITUTE v. HOGARTH 4615
Taking of Marine Mammals Incidental to Commercial Fishing, 64 Fed. Reg. 24590 (May 7, 1999). Environmental

groups challenged the Initial Finding under the Administrative Procedure Act, 5 U.S.C. § 706(2). District Judge Henderson 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 Secretary 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 substantially disregarded the MMPA by failing to conduct two of the

three statutorily-mandated studies. Id. at 1070. We admonished the Secretary to follow Congress’s directive and conduct 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 program and conducted several new studies. These studies

included a review of the fishery’s indirect effects on the dolphin population, as well as an examination of whether

changes in the ecosystem could be contributing to the dolphins’ slow recovery, but this research did not include the

specific studies the statute called for. In addition to these nonmandated 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

4616 EARTH ISLAND INSTITUTE v. HOGARTH
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].” Taking 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 district court. Earth Island is a non-profit group that was founded

in 1982 to promote and work for the conservation and restoration of the global environment. The group filed for summary

judgment, claiming the Final Finding was arbitrary and capricious, 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 decision 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 scienEARTH ISLAND INSTITUTE v. HOGARTH 4617
tific data regarding most aspects of the dolphin research program; the evidence that was available indicated the fishery

was having an adverse impact on dolphins; and any insufficiency of data should be resolved in favor of the species. Id.

at *25. This decision was rooted in the principle that Congress’s intent was to change the status quo labeling requirements only if the fishery was not impacting the dolphin

stocks. Id. at *3. Finally, the court found, what it characterized as a “compelling portrait of political meddling,” id. at

*26, which indicated the Secretary relied on factors that Congress 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 Congress’[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 contention 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. 

4618 EARTH ISLAND INSTITUTE v. HOGARTH
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 genuine 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 dolphin 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 support 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 evidence that dolphins swim at top speed to avoid the netting and

EARTH ISLAND INSTITUTE v. HOGARTH 4619
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 populationlevel 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 dolphins 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 conduct 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

4620 EARTH ISLAND INSTITUTE v. HOGARTH
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 Congressional intent or frustrate the policy that Congress sought

to implement must be rejected. Chevron, U.S.A., Inc. v. Natural 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 fishery 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 dolphinsafe labeling requirements. Congress refused to accept the

delegation’s recommendation to weaken labeling requirements without affirmative scientific evidence that the purseseine fishery was not significantly impacting the dolphin population. 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 determination 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 original). 

EARTH ISLAND INSTITUTE v. HOGARTH 4621
[4] The agency also failed to complete the statutorilyrequired 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 produces stress effects on the dolphins that prevent population

recovery. Congress still does not have scientifically meaningful 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 contrary 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 competence, we need not do so when the agency’s decision is without 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 Fish4622 EARTH ISLAND INSTITUTE v. HOGARTH
ermen’s Ass’ns. v. Nat’l Marine Fisheries Res., 265 F.3d

1028, 1034 (9th Cir. 2001). Because there is no rational connection between the Secretary’s Final Finding and the evidence 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 dolphins 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

EARTH ISLAND INSTITUTE v. HOGARTH 4623
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 Science 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 avoiding or detangling from the nets (i.e. capture myopathy);

cumulative organ damage in released dolphins due to overheating from the chase; failed or impaired reproduction; compromised 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 estimates 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

4624 EARTH ISLAND INSTITUTE v. HOGARTH
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 insufficient 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

EARTH ISLAND INSTITUTE v. HOGARTH 4625
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 sufficient sample sizes to make population-level inferences 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 considered 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 requirements. 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 inconclusive. 

[6] Apart from the direct mortality inquiry, no other study

the agency conducted produced any data to support the Secre4626 EARTH ISLAND INSTITUTE v. HOGARTH
tary’s finding. The direct mortality study alone does not provide 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 support its Initial Finding in Brower II. In that appeal, the Secretary “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 district court noted:

[T]his Court has never, in its 24 years, reviewed a

record of agency action that contained such a compelling portrait of political meddling. This portrait is

chronicled in documents which show that both Mexico 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 Commerce were willing to heed these influences notwithstanding the scientific evidence to the contrary. 

EARTH ISLAND INSTITUTE v. HOGARTH 4627
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 circulated an internal memorandum and briefing packet, which

stated that “[t]he final finding is very important to the Government 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 significant 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 uncertainty, most of the data we have point to the fishery as the

cause [of the dolphins’ failure to recover],” and “[a] determination of ‘no significant adverse impact’ is not supported by

the science.” Id. However, by December 16, 2002, the Secre4628 EARTH ISLAND INSTITUTE v. HOGARTH
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 science 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 fishery 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

EARTH ISLAND INSTITUTE v. HOGARTH 4629
further directed the government to police enforcement of strict

dolphin-safe labeling requirements. 

[9] The final issue before us on appeal is properly characterized 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 Congress’s mandate renders this case one of the rare circumstances 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 scientific results. There was, thus, no basis for the agency, without 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 Congressionallyprescribed 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

4630 EARTH ISLAND INSTITUTE v. HOGARTH
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 enforcement 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 enforcement 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 standards 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 modified. 

EARTH ISLAND INSTITUTE v. HOGARTH 4631