U.S. Gears Up in Sea World Case : Way Is Paved for Appeal of Ruling Against Whale Capture

The U.S. Justice Department, representing the National Marine Fisheries Service, laid the legal foundation this week to appeal a court ruling that voided plans by Sea World of San Diego to capture 100 Alaskan killer whales, officials said Friday.

Michael Gosliner, an attorney for the National Oceanic and Atmospheric Administration, which oversees the fisheries service, said government attorneys submitted a “protective notice of appeal” to the 9th District Court of Appeal in San Francisco.

Such a notice “preserves our right to pursue an appeal if and when the solicitor general has made a final decision that we should appeal,” Gosliner said.

He said he didn’t know when a final decision would be made.

The Fisheries Service had until Wednesday to challenge a ruling made in January by U.S. District Court Judge James A. von der Heydt of Anchorage. The judge determined that fisheries officials erred in issuing Sea World a whale capture permit because an environmental impact study was not properly submitted beforehand.

Sea World in November, 1983, received federal 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.