Activists Alarmed by Bid to Reverse Dolphin-Safety Law : Ocean: GOP bill would lift ban on tuna caught when the mammals are killed. Free-trade treaties muddy waters.

A law that dramatically reduced the slaughter of dolphins and allowed Americans to consume tons of tuna fish with a clear conscience is under assault by Republicans in Congress who seek to replace it with a bill environmentalists say could increase the dolphin kill eighteenfold.

The legislation, carried by Rep. Randy (Duke) Cunningham of San Diego, would lift the ban on the importing of foreign tuna caught at the expense of dolphins and repeal a consumer labeling law that requires all tuna sold in the United States to be marked “dolphin-safe.”

Many environmentalists concede that new international trade treaties mean the tuna embargo should be lifted, but only if replaced by strict international law and rigorous enforcement that makes sure dolphin deaths continue to decline, they insist.

Should the Cunningham bill succeed, the Marine Mammal Protection Act would be the latest in a series of environmental regulations refitted by a Republican-led House and would reverse a law born of public outrage over the worst marine mammal slaughter in history. The bill is set for its second committee hearing later this month, and supporters hope to see the embargo lifted by the end of next year.

“This bill ought to be named the Dolphin Extermination and Consumer Fraud Act,” said opponent David Phillips, executive director of the Earth Island Institute in San Francisco. “The public will be horrified to learn that Congress is considering allowing tuna caught by killing dolphins to be put back on our supermarket shelves.”

But Cunningham and other fishing industry proponents argue that dolphin protection laws have served their purpose, citing a decrease in dolphin mortality that even environmentalists concede is miraculous. The number of killings has plummeted--from 423,678 in 1972 to 4,095 last year--as nations such as Mexico have refined their fishing techniques in yet-unsuccessful attempts to win back access to the American market, the world’s largest for tuna.

“When they passed that embargo, they shot the American fisherman in the head,” said James P. Walsh, a Washington lobbyist for tuna fisheries. “Here is a group of animals not threatened or endangered. . . . It’s time for us to grow up and realize we have more or less conquered the dolphin problem.”

The dolphin debate that confronts this Congress is far more complex than the one that gripped the country in the 1980s. At issue then was a fishing method that intentionally slaughtered hundreds of thousands of marine animals. Today a much smaller number of dolphin deaths is being weighed against a trade nightmare as the United States struggles to define its role in the complex world of international commerce.

Opponents say that, by lifting the embargo, Cunningham’s bill would permit any number of dolphins to be killed as long as the mammal is not pushed to extinction. Scientists say that number could be as high as nearly 75,000 dolphins a year--a figure that both Cunningham and environmentalists consider unthinkable.

“We concede things do have to change. The embargo served a purpose once that it does not anymore. But let’s not sell out the store,” said Gerry Leape, legislative director for ocean ecology for Greenpeace in Washington.

Most of the environmental reform pushed by Republicans in this Congress has focused on obscure laws that largely escaped public notice. But if recent history is any indication, the dolphin debate is bound to strike a powerful chord with a generation of Americans raised on episodes of “Flipper.”

It was only a few years ago that the national conscience was seared by an anguishing videotape of dolphins squealing in death throes aboard a Panamanian tuna boat. Never before or since has Congress received so much mail from schoolchildren on an environmental issue. Consumers boycotted canned tuna, forcing leading U.S. tuna companies to stop processing fish caught at the peril of dolphins.

The mystery question is how many dead dolphins Americans are willing to accept in the name of unrestricted trade. Problems seem to lie in every direction.

Foreign efforts to rescue dolphins have been purely voluntary, set out in a handshake agreement overseen by the Inter-American Tropical Tuna Commission, a body of regional fisheries based in La Jolla. Should fishermen lose hope of ever re-entering the American market, critics say, there is little to stop them from abandoning techniques that are considered more dolphin-safe.

Alternative fishing strategies pose other environmental hazards, including the unintentional destruction of sea turtles, sharks and juvenile tuna that threatens the future health of the fisheries, some environmentalists warn.

“Americans are willing to accept a scientific risk concerning a lot of other animals, but that has never been true of dolphins,” said one Democratic congressional staffer working against the Cunningham bill. “Americans . . . don’t want the product they purchase to feed the kids for lunch to result in 75,000 dolphin deaths.”

For unknown reasons, yellowfin tuna swim beneath schools of dolphin only in the eastern tropical Pacific--an 8-million-square-mile swath of sea extending from California to Chile to Hawaii. Fisherman since the 1950s have hunted the dolphins and encircled them with enormous nets, catching tons of tuna and drowning or crushing as many as 7 million marine mammals in the process.

Under heavy pressure from consumers and environmental activists, StarKist, Bumble Bee and Chicken of the Sea shifted operations to the western Pacific to harvest skipjack tuna, a species that does not swim with dolphins. Americans have been consuming skipjack ever since--slightly mushier than the higher-quality yellowfin but 100% dolphin-safe.

But foreign boats have continued to harvest yellowfin in the eastern Pacific, refining their techniques so that 99% of the dolphins caught are now released from an escape hatch in the net.

The 1% that did not escape accounted for last year’s 4,095 dead dolphins. Cunningham’s bill would allow such tuna not only to be sold in American supermarkets, but also to be packed in cans marked dolphin-friendly, since U.S. law regulating tuna labeling would be repealed. “Dolphin-safe may not mean dolphin-safe,” said the Earth Island Institute’s Phillips. “And when consumers get confused, they are going to turn to canned chicken.”

Even environmentalists are divided over how to lift the embargo. But the one thing upon which all parties agree is that the dolphin issue of the ‘90s is a thicket of complexities. Even Cunningham does not seem to understand the nuances of his own bill, maintaining that the dolphin kill would not increase at all, a highly unlikely prospect if fishing increases in yellowfin waters.

“The fishermen have told me they can improve the [dolphin mortality] numbers, and I have been guaranteed by the fishermen and I believe them,” Cunningham said. “A lot of Portuguese families have been doing this for years.”

The bill is co-sponsored by Republican Reps. Duncan Hunter, Brian Bilbray and Ron Packard, all of San Diego, a region whose fishing industry was all but wiped out by the embargo. And Cunningham says his bill will create about 1,000 jobs.

The three leading U.S. tuna companies have vowed to stand by their dolphin-safe policies in public statements like StarKist’s: “StarKist Seafood Co. . . . remains committed to that policy. StarKist will not purchase, process or sell tuna caught by the intentional encirclement of dolphin or through the use of drift nets.” But skeptics wonder how long they can hold out if undercut by a foreign product.

Meanwhile, there are 11 million dolphins swimming in the eastern tropical Pacific. While environmentalists say those numbers represent a fraction of the earlier population, scientists believe it is a stable stock that can stand some losses.

“They catch 300,000 tons of tuna in the eastern tropical Pacific and kill 4,000 dolphins,” said lobbyist Walsh, “which scientists say is ‘biologically insignificant.’ ”

As long as the dolphin population remains relatively stable, it is the trade issues that seem to dominate the debate.

Under the General Agreement on Tariffs and Trade, the United States cannot legally boycott a product based on the way it was caught. Europe and Mexico are threatening grievances that could subject the United States to millions of dollars in punitive tariffs unless the embargo is lifted.

Also in play is the Clinton White House, working feverishly to ease trade restrictions with Mexico and make sure the NAFTA treaty--a hard-fought Clinton victory--works.

With general support from the State Department and a sympathetic Congress, the commercial fishing industry could normally foresee a legislative victory. But, with dolphins at issue here, it is girding for an emotional battle.