U.S. Told to Ban Tuna Imports : Fishing: Judge orders embargo until foreign fleets prove they are reducing the number of dolphins they kill. Mexico would be among nations most affected.

A federal judge on Tuesday ordered the Bush Administration to impose an immediate embargo on imports of tuna caught by foreign fleets until they prove they are reducing the number of dolphins they kill.

The ruling by U.S. District Judge Thelton Henderson, though certain to be appealed, affects at least five nations: Mexico, Venezuela, Panama, Ecuador and Vanuatu.

Henderson accused the Commerce Department of failing to enforce a 1988 provision of the Marine Mammal Protection Act by not demanding that the countries prove they are cutting their dolphin kills to levels comparable to the U.S. tuna fleet’s so-called incidental take.

“Simply put,” Henderson wrote, “the continued slaughter and destruction of these innocent victims of the economics of fishing constitutes an irreparable injury to us all, and certainly to the mammals whom Congress intended to protect.”

Henderson ordered Treasury Secretary Nicholas F. Brady to impose an embargo immediately until the Commerce Department produces proof that foreign fleets have reduced the number of dolphins killed.

“This is a stunning rebuke for the government’s position,” declared David Phillips, executive director of Earth Island Institute, which sued to force the federal government to take action against the foreign nations.

“Basically, the State Department has been categorically against enforcing these embargoes,” Phillips continued. “They have put dolphin protection at the bottom of the priority list in dealing with these countries.”

Government attorneys could not be reached Tuesday.

The 1988 provision in the Marine Mammal Protection Act required that countries seeking to export tuna to the United States prove that their dolphin take in 1989 was no more than two times the number killed by U.S. tuna boats.

The U.S. government was supposed to have determined whether the foreign fleets had complied by the end of 1989, Henderson wrote. The act also required that exporting countries prove by the end of this year that their 1990 dolphin kill is no more than 1.25 times greater than the U.S. fleet’s kill.

But Henderson accused the foreign nations and this government of foot-dragging, and pointed out that U.S. authorities only received data on the 1989 catch last month. The United States has not received any data for 1990.

“The statute requires a fairly simple calculation,” Henderson wrote. “In this age of computers, it is difficult to understand why this calculation would be so difficult or time-consuming.”

Should the embargo go into effect, the impact on tuna fisheries in the five nations could be dramatic. Phillips estimated that Mexico exports 20,000 tons of yellowfin a year to the United States.

Other nations export less, Phillips said. But he said the Pacific island nation of Vanuatu exports 72% of its tuna catch to the United States, while Venezuela exports 48% of its tuna to this country.

Fishermen long have fished yellowfin tuna by locating herds of dolphin, which often swim directly above tuna. To catch the tuna, fishermen set huge purse seine nets. When the nets are shut and hauled aboard, large numbers of dolphins are killed or maimed.

The U.S. tuna fleet has been phasing out the practice of “setting on dolphins,” and major domestic canners have stopped buying tuna if the fishing techniques used to catch them harm large numbers of dolphin.

Still, foreign fleets continue the practice. Phillips said Mexico has as many as 50 ships using purse seine nets. The American dolphin kill in 1989 was 12,643, down by 36% from the previous year. But a National Marine Fisheries Service official recently told Congress that dolphins killed last year by foreign tuna fleets rose by more than 40%, to 84,000.

Henderson said the failure of Commerce Secretary Robert Mosbacher and the National Oceanic and Atmospheric Administration to enforce the 1988 provision of the Marine Mammal Protection Act “assures the continued slaughter of dolphins.”

“The statute was intended to use access to the United States market as an incentive for foreign nations to reduce marine mammal deaths. The secretary, contrary to Congressional intent, has not provided that incentive,” the judge wrote.