Agency Plans to Appeal Sea World Whale Ruling

Times Staff Writer

With Sea World of San Diego apparently sitting on the sidelines, the National Marine Fisheries Service next week intends to appeal a U.S. District Court judge's ruling that voided plans by Sea World to capture 100 Alaskan killer whales, officials said Friday.

"We issued the capture permit that the judge decided was invalid," said Brian Gorman, a fisheries service spokesman in Washington, D.C. "We have a deadline of March 27 to file an appeal, and that's what we're hoping to do."

Michael Gosliner, an attorney for the National Oceanic and Atmospheric Administration, the agency which oversees the fisheries service, said Sea World has not indicated whether it will participate in the anticipated appeal--even though such litigation might well be in the park's best interest.

"Sea World has told us they do not want to seek an appeal independently," Gosliner said. "If we appeal as we expect to do, they would not necessarily have to be a party to it. I would not be surprised if they decided to join in eventually, but we really don't know what their plans are at this point."

Attorneys for the popular aquatic theme park could not immediately be reached for comment.

Friday's development was the latest in a lengthy debate that has raged since November, 1983, when Sea World received fisheries service approval to capture killer whales in three locations along the Alaskan coast. Under the plan, Sea World would have corraled 100 killer whales over five years. Ninety would have been detained briefly and subjected to various scientific testing before being released.

The remaining 10 killer whales would have been taken into permanent captivity to be displayed and trained to perform at Sea World's three parks. Sea World officials also had hoped that their new killer whales would mate and produce calves--eliminating the need for future whale captures.

However, after receiving widespread opposition from environmentalists and Alaska state officials, Sea World did not attempt whale captures in Alaska in 1983 or 1984. Led by the Sierra Club Legal Defense Fund in Juneau, a coalition of environmental groups in May, 1984, sued to stop the whale captures before they began.

Acting on that lawsuit, U.S. District Judge James A. von der Heydt in Anchorage ruled in January that the fisheries service erred in issuing Sea World a whale capture permit because an environmental impact study was not properly submitted beforehand.

Gosliner said Friday that the fisheries service does not plan to challenge the contention that it failed to submit such a study.

"That is indisputable, but we think the judge overstepped his bounds . . . requiring us to do that sort of environmental documentation," Gosliner said. "If the judge determined that there was a need for environmental documentation, he should have first ordered an assessment to determine the need for a full-blown impact statement."

Alan Reichman, a spokesman for the environmental group, Greenpeace, said his organization has long anticipated the fisheries service appealing von der Heydt's ruling.

"We realize that the (fisheries service) looks at this as precedential in that they don't want to go through an environmental impact statement every time some roadside aquarium wants to take a dolphin out of the water," Reichman said. "The reality is that only in extreme situations, such as with Sea World, would there be this need."

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