Judge’s Order Aimed at Needless Dolphin Killings : U.S. Observers Must Accompany Tuna Boats

A federal judge extended his order Tuesday for American tuna fishing boats to carry government observers to prevent needless killing of dolphins that swim above yellowfin tuna.

The injunction by U.S. District Judge Thelton Henderson could save “tens of thousands” of the approximately 100,000 dolphins killed each year by U.S. and foreign tuna boats in the southeastern Pacific, said Joshua Floum, a lawyer for environmental groups that filed the suit.

He said foreign-flagged vessels, which are responsible for most of the killings, would be affected by a U.S. law that forbids importing of tuna caught by foreign boats that use a lower percentage of government observers than U.S. boats.

Henderson’s preliminary injunction is binding until the suit goes to trial. It apparently will require the government to find about $1 million a year that it says it needs to station National Marine Fisheries Service observers aboard each of the 35 U.S. tuna boats through the end of September.

The dolphins are killed when caught in nets cast to catch tuna below the surface. Federal law forbids more than 20,500 dolphin killings a year by U.S. tuna boats; the observers enforce requirements that the boats use the best available technology to avoid needless killings.

Henderson issued a temporary restraining order Jan. 5 requiring all U.S. tuna boats to carry observers, under a federal law signed last November by President Reagan. The order was to have expired Tuesday.

At Tuesday’s hearing, government lawyers argued that an injunction was unnecessary because the government is following the law and has promised to give seven days’ notice before allowing any boat to leave without an observer.

“There will be 100% coverage because that is the policy,” said Justice Department lawyer Charles Brooks. “This is not a policy which has an expiration date.”

But Floum, representing the Earth Island Institute and the Marine Mammal Fund, said a Commerce Department official had recently stated in writing that the current budget covers observers only for each boat’s first trip of the year.

“We’ve heard promises before,” Floum told Henderson. He noted that two boats have gone to sea this year without observers; Brooks said observers have since been sent to both vessels and cited confusion about the effective date of the new law.

In issuing the injunction, Henderson said a promise of voluntary government compliance does not necessarily eliminate the need for a court order to follow the law. Among other things, he said, the government’s acknowledgement of its budget problems created a “reasonable apprehension” that more boats would sail without observers.

The judge also rejected arguments by August Felando, lawyer for the American Tunaboat Assn., that the failure to station an observer aboard every vessel would not cause “catastrophic consequences.”

“It’s not for this court to determine whether there are catastrophic consequences,” Henderson said. “Congress has done that. If one dolphin is killed because this legislation is not complied with, that’s irreparable injury, correct?”