This article was from back in the 70's
Has much changed?

Charlie the Tuna and friends vs. Flipper the Porpoise et al, a 15-year bout between the U.S. tuna industry and protectors of the porpoise, ended two weeks ago in a technical knockout by Flipper. There is some talk of a rematch.

The knockout came in a ruling by U.S. District Judge Charles Richey: as of May 31 the tuna industry can no longer fish for yellowfin tuna "on porpoise," a method which has killed millions of the graceful marine mammals. Richey's decision, which the industry will appeal, climaxed a long bitter struggle involving fishermen, environmentalists and the Federal Government.

The American tuna fleet has traditionally hunted yellowfin in the eastern Pacific between Baja California and Chile. Since the late 1950s tuna fishermen have exploited the fact that large schools of yellowfin frequently swim along with two species of porpoise—also known as dolphin—the spotted and the slightly smaller spinner. One theory holds that the tuna follow them to find food.

Fishermen, cruising on boats up to 240 feet long, scan the sea for porpoise schools. When they sight one they dispatch speedboats to set a large nylon net some three-quarters of a mile by 400 feet around the school, drawing it together at the bottom with a cable and trapping both tuna and porpoise. The tuna skipper then gingerly backs up his boat, which sinks the far end of the net enough to enable most of the porpoise to escape—usually about 2% of the school become entangled in the net and die, probably by suffocation.

Twenty years ago tuna fishing was different: a load of chum was tossed overboard into a tuna school and the fish were hauled in with hook and line. The porpoise in attendance were mainly spectators and not incidental victims. But technology changed all that. The perfection of long-lasting nylon nets and the power-block mechanism that controls them permitted the American tuna fleet to switch to the far more lucrative net system, which is known as purse seining. Not incidentally, it also gave the San Diego-based U.S. fleet aid in its struggle with growing competition from Japan.

This development was only round one in the fight between Charlie and Flipper, a round that was clearly Charlie's. Through the '60s the tuna men fished successfully on porpoise, and the mammals died wholesale. No one was really keeping score, but estimates are that more than 400,000 porpoise perished in the nets every year.

The stench from this carnage didn't begin to reach the nostrils of the increasingly potent conservation forces until the late '60s. Nobody knew about it except fishermen, and they weren't exactly angling for invitations to discuss it on talk shows. Tuna fishermen tend to be rugged, taciturn men, with something of the frontiersman's aversion to any interference with their freedom. No one can tell them how to fish.

But conservationist noses were twitching now, and round two was all theirs—or so they thought. The victory derived from the passage of the Marine Mammal Protection Act of 1972. This law, primarily inspired by the decimation of whales and the widely publicized slaughter of baby harp seals, imposed a moratorium on the taking of any marine mammals, porpoise included. Readers of the small print, however, found that exceptions were allowed for various specified reasons, including the regulated killing of dolphin during purse-seine fishing.

The main effect of this law was to put a referee in the ring with Charlie and Flipper. The referee, who was supposed to monitor the kill, was the Federal Government, more precisely the National Marine Fisheries Service. The trouble was that neither side trusted the ref: the industry worried about expensive and harassing regulations, the environmentalists doubted the government's neutrality.

"Everyone thought that the problem would go away," a government man recently recalled. The tuna fleet came up with a new, smaller-mesh panel attached to the end of the main net; the idea was that dolphin wouldn't snag their fins, snouts or flukes in the smaller mesh. And it seemed to make a difference: federal observers on the tuna boats found that fewer porpoise were killed when the panel was used. "We've got the problem licked," an industry spokesman declared. His confidence was premature.

Conservationists complained that the government did not enforce its own minimal regulations. They pointed out that the language of the law, in its quaint way, mandated that porpoise kills "be reduced to insignificant numbers approaching a zero mortality." This was plainly not happening, small-mesh panel or no. The government estimated the porpoise kill by the U.S. fleet at 318,000 in 1972, 179,000 in 1973 and 98,000 in 1974. Progress, yes, but a long way from zero.

Then there was the question of whether the spotters and spinners were approaching zero from another direction—whether they were, in fact, becoming extinct. No one knew. "Look at the size of the ball park," protested a government scientist. "There's millions of square miles of ocean out there. Nobody's ever found an effective way to census dolphin." The government gave it a go, however. It estimated the known range of the species involved, surveyed random rectangles of ocean from the air to count schools and got a fix on the number of animals per school from the tuna boats. All those numbers were fed into a computer, and the conclusion was: "There is no striking evidence that the stock is either increasing or decreasing. At present the stock probably is either stable or increasing or decreasing slightly." Terrific. The Washington Star gave the Fisheries Service its coveted Gobbledygook award for that one.

Round three then may be scored as even. The number of kills was decreasing, industry was improving in technique, but 100,000 porpoise a year were still dying. Their numbers might or might not be declining significantly. The conservationists thought the government had a duty to show that they were not declining, and the feds did their best. Maybe.

Even by the overheated standards of other industry vs. wildlife controversies—coyotes vs. domestic sheep, wild horses vs. cattle—the tuna-porpoise scrap stimulates an extraordinary level of passion. "There's so much sensitivity on all sides," says Representative Robert Leggett of California, chairman of the Congressional subcommittee monitoring the issue. "I can say one thing wrong, and I'll get enough calls and mail to keep three secretaries busy for three weeks."

Conservationists have long since evolved from a fervent coterie of soft-soled idealists to a formidable, well-organized lobby usually able to wield as much clout on a given issue as their better-heeled foes. It was easy with dolphin, the sweet princes of the deep which have beguiled man for centuries. The Greeks put their picture on coins and threw them gifts of wine. Medieval knights emblazoned them on their shields. Americans gave one his own television show. Stories persist of amiable dolphin sporting with swimmers in their favorite lagoons, rescuing people near drowning and guiding fishermen to their prey. It was their manifest intelligence and the respect it inspires, rather than any fears for their extinction, which prompted their inclusion in the 1972 act.

The strategy of their protectors was to keep a number of pots boiling; the lawsuit that resulted in the judge's decision two weeks ago was not the only one. Friends of Flipper turned out by the score to oppose the industry's application for special permits to continue purse seining; several conservation groups boycotted tuna; a film narrated by Dick Cavett was prepared by the Environmental Defense Fund and Save the Dolphins. Most important, environmentalists pressed for further research on porpoise behavior and the strange tuna-porpoise alliance. The industry kicked in $250,000 this year for research along these lines, and the government has more than doubled that amount.

Below the foam of controversy, however, lurks what might be called the Catch-22 in the tuna-porpoise issue. It's a catch with two parts, in fact, or, as the Fisheries Service might put it, 22-A and 22-B. The first catch is the oft-repeated threat of the San Diego fleet to register its boats under foreign flags. The fishermen contend that this would make them no more liable to U.S. law and regulations than the Mexican, Ecuadorian or Japanese fishing fleets are now. There is no agreement on whether U.S. citizens would be bound by our law while fishing for tuna in international waters under a foreign flag.

Catch-22-B is the foreign fleets themselves. No nation besides the U.S. has an effective program to check the number of porpoise its tuna fishermen kill. No one knows how many they do kill, although the U.S. does about 85% of the world's purse seining. Even with the U.S. fleet barred from killing dolphin, thousands will still die in alien nets. Dolphin, clever as they are, recognize no national flag.

The fourth round in the Charlie-Flipper bout was fought last year, and it brought fans on both sides to their feet. The number of dolphin killed by U.S. tuna fishermen increased from 98,000 to 134,000. This jarred everyone—the industry men who had pronounced the problem "licked," the environmentalists with their gaze firmly fixed on the "zero mortality" goal and the feds with their regulations. "The increase in 1975 really crushed the industry," says a government man. "They couldn't explain it away."

Some environmentalists demanded an immediate end to purse seining. Others proposed that an annual quota be imposed on the number of porpoise killed, with a 50% reduction each year. The Fisheries Service tacked one way and then the other. First it proposed a quota in 1976, with government observers stationed on every tuna boat to enforce it. Then it reversed engines, abandoned the quota and decided that observers would sail with a randomly selected 10% of the fleet. Round four was tough to call, but the edge probably went to Charlie.


The TKO came at the start of round five. Judge Richey ordered an end to purse seining, primarily because the Fisheries Service had failed to live up to its responsibilities under the 1972 act—specifically, not only to protect the porpoise but also to increase its numbers. The industry men foresaw gloomy days, and higher tuna prices, ahead. "It's tantamount to bankruptcy for practically every owner in the fleet," said one. The foreign flags suddenly seemed more appealing. "The political climate in the U.S. is pretty grim for us now," a tuna man said ominously.

Unlike most environmental issues, the tuna-porpoise conflict seemed to contain the seeds of its own solution. The irony is that the decision barring purse seining came at a time when industry, government and environmentalists seemed to be edging closer to a solution.

There is evidence, too, that porpoise were using their man-sized brains to avoid nets; fishermen found that in some heavily fished areas the porpoise had learned to disperse when a boat appeared or to make a quick dash for freedom before the net was in place. But Biologist Karen Pryor, a dolphin trainer, speculates that many of them panicked in the net, letting their emotions get the better of their intelligence. In addition, she says, their strong parental bonds work against escape. "There's no way that spinner porpoise within family groups will leave an area where mothers and babies are being murdered," she contends. "It's simply not in their behavior pattern."

The inarguable fact that it is in the tuna man's interest to preserve porpoise offered further grounds for hope. Government officials report that the initial truculence on the part of fishermen has given way to a spirit of cooperation: the best tuna men take pride in their skill at coaxing porpoise out of the nets.

Scientists and technicians were working on ways to separate tuna and porpoise after the net encircled them. They have tinkered with two accoustical devices, one generating a high-pitched sound to drive the porpoise from the area, the other issuing pings that delineate the opening in the net. Sonar could enable fishermen to detect tuna without the aid of porpoise, as could an odor-attraction device emitting a porpoise smell, which would lure the tuna into a net.

"There's been a poverty of imagination until recently," says Dr. Kenneth Norris, an authority on porpoise behavior. "If we used some imagination, we could solve it. We could learn what happens to the tuna and porpoise during the chase, the set of the net and the release, and that would give us some clues. For example, we know that fish will flood toward a hole in the net, but porpoise are wary of obstacles, and won't do that. There might be something in that behavioral difference to lead us to a system that will work." It would be a sad mistake if Judge Richey's decision, which can be overturned by a higher court or be vitiated by an amendment to the 1972 act, which is now being discussed in Congress, led to a suspension of this kind of research.

Plutarch said that dolphin were the only creatures that loved man for his own sake. He may merely have been hoping that his affection for them was requited, but it is obvious that dolphin, which look like fish but refuse to act like fish, have a remarkable claim on our emotions and imaginations. It is also clear that, up to now at least, this hasn't got them much.

Whether we do better by them in the future depends on the courts, Congress, the skill of the scientists and the attitudes of the fishermen. It may also depend on the porpoise themselves. Once they finish celebrating their deliverance, they may get a commission of their own working on the case that will make all our efforts and court decisions irrelevant. Keep an eye on the next silver-backed phantom you see skimming the waves. He may have a message for us.



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