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All is Whale at Ends Whale? e Deciencies in
National Protection for Orca Whales in Captivity
Hillary T. Wise
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925
ALL IS WHALE THAT ENDS WHALE? THE
DEFICIENCIES IN NATIONAL PROTECTION FOR ORCA
WHALES IN CAPTIVITY
Hillary T. Wise*
I. Introduction ............................................................... 926
II. Background ................................................................ 929
A. United States Law: The Marine Mammal Protection
Act of 1972 ......................................................... 929
B. Inadequacies of the Marine Mammal Protection
Act ....................................................................... 932
III. Harm to Humans and Killer Whales from Human-
Whale Interaction ...................................................... 936
A. “Kings of the Sea”: Killer Whales Decoded ......... 936
B. A History of Entertainment: SeaWorld’s Captive
Killer Whales ...................................................... 938
C. Life and History of Tilikum—A Story of Injury to
Trainers and Harm to Whales in Captivity ......... 940
D. Danger to Humans from Interaction with Whales in
Captivity .............................................................. 941
E. Occupational Safety and Health Act—Some
Protection for Trainers and Indirect, but
Insufficient, Protection for Whales ..................... 944
IV. Proposed Changes for New Federal Legislation:
Implementing ORCA ................................................. 948
A. The Need for Conservation and Rehabilitation .... 949
B. Blackfish Backlash: Public and Political Support for
Orcas in Captivity ............................................... 951
C. Post-Blackfish Legislative Attempts to Quash Orca
Captivity .............................................................. 952
V. Conclusion ................................................................. 954
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I. INTRODUCTION
The last fifty years have given rise to an entirely new level of
cognizance surrounding the treatment of animals and the law’s role in
regulating their care.
1
The Marine Mammal Protection Act
2
(MMPA) was
passed in 1972 with the purpose of implementing administrative standards
to preserve and protect aquatic mammals and their role in the marine
ecosystem.
3
Although the MMPA purports to ensure marine ecosystem
stability by mandating a cessation on taking or importing marine
mammals, it has become increasingly clear that the Act is filled with
detrimental gaps.
4
The MMPA’s shortcomings have publicly manifested themselves in
the controversial case between SeaWorld and the Occupational Safety and
Health Administration (OSHA).
5
The origins of this dispute began in 2010
when SeaWorld Orlando’s pride and joy killer whale, Tilikum, killed
senior whale trainer Dawn Brancheau (Brancheau) before the eyes of a
horrified crowd.
6
OSHA’s investigations of the park’s safety measures
and precautions for SeaWorld employees revealed a checkered past of
numerous injuries, other deaths, and misinformation at the hands of the
park’s upper management.
7
The MMPA has also shed light on the features
* J.D., The University of Akron School of Law, 2016. Production Editor, 2014-2015 Akron Law
Review. B.A. in Education with highest honors, Rollins College, 2011. From the bottom of my heart,
I wish to thank the staff of the Akron Law Review for its esteemed editorial assistance, my incredible
family and loved ones for providing their unwavering support, and the committed professors at Akron
Law who dedicated their time to this Article.
1. See generally Mariann Sullivan, The Animal Welfare Act—What’s That?, 79
AUG N.Y.
ST. B.J. 17 (2007) (discussing the rising awareness of the treatment of animals and monitoring their
care).
2. Marine Mammal Protection Act, 16 U.S.C.A. §§ 1361-1423h (West, Westlaw through P.L.
114-37, excluding P.L. 114-27, 2015).
3. 16 U.S.C.A. §§ 1361-1423h (introducing the original purpose of the MMPA after it was
passed in 1972).
4. Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust
Captivity Practices Since 1972, 28 J.
LAND USE & ENVTL. L. 337, 339 (2013).
5. B
LACKFISH (Magnolia Pictures 2013) (focusing on the controversy following the
accidental death of SeaWorld trainer, Dawn Brancheau and the disputed sanctions SeaWorld received
from OSHA). See also Tilikum ex rel. People for the Ethical Treatment of Animals, Inc. v. SeaWorld
Parks & Entertainment, Inc., 842 F. Supp. 2d 1259 (2012).
6. B
LACKFISH, supra note 5.
7. B
LACKFISH, supra note 5. “Blackfish utilizes interviews from a variety of sources,
including former SeaWorld trainers and whale researchers to compile evidence against the marine
park.” Martha Sorren, Blackfish Documentary Exposes Negligence, Corruption in SeaWorld’s Quest
for Profit, T
RUTHOUT, http://www.truth-out.org/news/item/17851-blackfish-documentary-exposes-
negligence-corruption-in-seaworlds-quest-for-profit (Aug. 3, 2013). Whale researcher Dave Duffus
explains, “The situation with Dawn Brancheau didn’t just happen; it’s not a singular event. You have
to go back over 20 years to understand this.” Id.
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of killer whales, such as their integral role as the top predator in marine
ecosystems and the consequences of breeding captive mammals that can
reach over 27 feet in length and weigh over 13,000 pounds.
8
Additionally, the powerful documentary Blackfish was released in
2013.
9
Blackfish articulates the story of Brancheau’s death and raises a
plethora of questions about the safety for both whales and SeaWorld
employees and the humaneness of keeping killer whales in captivity over
the past thirty-nine years.
10
The film introduces and interviews multiple
former SeaWorld trainers, including John Jett who stated:
I am not at all interested in having my daughter who is three-and-a-half
grow up thinking that it is normalized to have these intelligent, highly
evolved animals in concrete pools. I don’t want her to think that is how
we treat the kin that we find around this planet. I think it’s atrocious.
11
Further, to this day, there is no record of an orca whale ever harming
a human being in the wild.
12
The MMPA’s shortcomings have not only
permitted the captivity of killer whales, but have also allowed these
captive whales to be a spectacle of praise and awe by an unknowing,
uninformed public. The MMPA’s loopholes have left these creatures at
the mercy of confinement, resulting in psychological and physical abuse
for the whales and dire consequences for the humans who come into
contact with them.
13
The MMPA claims to support the protection and conservation of
aquatic animals, such as the performing killer whales in the public display
industry.
14
However, the ambiguities in the enforcement and other
provisions of the Act have made it possible for organizations such as
SeaWorld to get away with mistreating and scientifically misrepresenting
these animals in the name of turning over a profit. Specifically, the public
8. Derek O. Teaney, The Insignificant Killer Whale: A Case Study of Inherent Flaws in the
Wildlife Services’ Distinct Population Segment Policy and a Proposed Solution, 34 E
NVTL. L. 647,
649 (2004) (discussing statistical features of killer whales’ size, predatory habits, and popularity in
the United States).
9. B
LACKFISH, supra note 5. Kelly Wallace, ‘Blackfish’ Sparks Debate Over Taking Kids to
Animal Parks, CNN, http://www.cnn.com/2013/10/24/living/parents-blackfish-kids-seaworld-zoos/
(Oct. 28, 2013 11:29 AM).
10. See Wallace, supra note 9. Blackfish director Gabriela Cowperthwaite used to routinely
take her kids to shows at SeaWorld in San Diego until the death of Dawn Brancheau occurred. Id.
Brancheau’s death acted as the catalyst for Cowperthwaite to create the documentary and raise
questions about the ethics of keeping killer whales in captivity. Id.
11. Id. (John Jett also stated that he “grew increasingly concerned about the stressful conditions
the animals were living under at SeaWorld.”).
12. B
LACKFISH, supra note 5.
13. See Dougherty, supra note 4, at 367.
14. See id.
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display industry has control of the standards of protection for marine
mammals because these facilities are only required to follow uncollected
and unapproved “professionally recognized standards”
15
for education or
conservation programs.
16
As a result, the MMPA gives the public display
industry extremely broad control over these standards, which makes it
very unlikely that any necessary tightening of the regulations will be
possible in the future.
17
The importance of killer whales to oceanic
ecosystems and to our environment has been unquestionably established.
The public display industry has not only detrimentally impacted both the
environment and marine ecosystems, but it has also failed to recognize the
dire consequences of the unjust, unsafe, and unethical capturing and
breeding of orcas in captivity.
18
In the wake of investigations and litigation between SeaWorld and
OSHA and the release of Blackfish, public awareness about keeping orca
whales in captivity has skyrocketed.
19
It has become progressively more
evident that the regulatory inadequacies of the MMPA have perpetuated
highly deficient industry-set standards.
20
In the years since the release of
Blackfish state and federal legislation has been proposed, including
California Representative Adam Schiff’s recent introduction of H.R.
4019, The Orca Responsibility and Care Advancement Act (ORCA),
which aims to outlaw orca captivity, prohibits breeding, and also prevents
“taking,” or wild capture by prohibiting importation and exportation of all
orca whales.
21
By examining the background of marine mammal legislation, the
inadequacies of the current laws in place, the history of aquatic
entertainment, and the recent legislation and controversy surrounding
SeaWorld, this Comment analyzes and concludes that if we implement
Representative Schiff’s new ORCA proposal,
22
we can begin to gradually
phase out orca captivity and the exploitation of these mammals.
15. 16 U.S.C. § 1374(c)(2)(A)(i) (West, Westlaw through P.L. 114-37, excluding P.L. 114-27,
2015). The “professionally recognized standards” of the public display industry were created as a
result of the AZA and AMMPA’s combined standards that were already being used by their members.
§ 1374(c)(2)(A)(i).
16. § 1374(c)(2)(A)(i).
17. See Dougherty, supra note 4, at 339.
18. B
LACKFISH, supra note 5.
19. Id.
20. See Dougherty, supra note 4, at 367.
21. Orca Responsibility and Care Advancement Act of 2015, H.R. 4019, 114th Cong. (2015).
22. See H.R. 4019.
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II. BACKGROUND
A. United States Law: The Marine Mammal Protection Act of 1972
In 1972, the federal government recognized that man’s impact upon
marine mammals had ranged from “malign neglect” to “virtual
genocide.”
23
It became clear that whales, porpoises, seals, sea otters, polar
bears, manatees, and other animals had not simply failed to benefit from
human interests, but they had gravely suffered from it.
24
In the name of
monetary profit or recreational entertainment, marine mammals had been
shot, blown up, clubbed to death, run down by boats, poisoned, and
exposed to countless other atrocities.
25
In addition to the suffering of the
marine mammals individually, Congress realized the potential impact of
these indignities on the entire marine ecosystem.
26
A number of bills were introduced into the House on the general
subject of protecting marine mammals attempting to regulate the use of
these mammals in the public display industry.
27
The public display
industry is made up of the American Zoo and Aquarium Association
(AZA) and the Alliance of Marine Mammal Parks and Aquariums
28
(AMMPA), which represent approximately eighty percent of the marine
parks, aquariums, dolphariums, zoos, and research facilities holding
captive marine mammals.
29
These bills proposed a complete prohibition
against the taking of marine mammals.
30
However, in 1971, Congressmen Clinton P. Anderson of New
Mexico and Thomas M. Pelly of Washington introduced a radically
different bill: H.R. 10320.
31
This proposal was designed to provide the
23. MARINE MAMMAL PROTECTION ACT OF 1972, H.R. REP. NO. 92-707 (1972), available at
http://www.animallaw.info/statutes/stusfd1972usccan4144.htm.
24. H.R. R
EP. NO. 92-707. See also The Marine Mammal Protection Act, THE HUMANE
SOCIETY OF THE UNITED STATES, http://www.humanesociety.org/animals/resources/
facts/marine_mammal_protection_act.html (last visited Sept. 12, 2014) (generally describing the
MMPA’s history and what it purports to do).
25. H.R. R
EP. NO. 92-707.
26. H.R. R
EP. NO. 92-707.
27. H.R. R
EP. NO. 92-707.
28. See Michael Luck & Yixing Jiang, Keiko, Shamu and Friends: Educating Visitors to
Marine Parks and Aquaria?, 6 J. E
COTOURISM 127, 127-38 (2007). See also ERICH HOYT ET. AL.,
OBSERVATIONS OF DISPARITY BETWEEN EDUCATIONAL MATERIAL RELATED TO KILLER WHALES
(ORCINUS ORCA) DISSEMINATED BY THE PUBLIC DISPLAY INSTITUTIONS AND THE SCIENTIFIC
LITERATURE 2 (Draft, 1995), available at http://www.orcanetwork.org/nathist/biennial.pdf (last
visited Feb. 19, 2016).
29. Hoyt et al., supra note 28, at 2.
30. H.R. R
EP. NO. 92-707.
31. H.R. R
EP. NO. 92-707.
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Department of the Interior with “more flexible authority to permit the
taking of marine mammals under circumstances, which might be more
closely controlled, and subject to public review and independent oversight
by an independent Marine Mammal Commission.”
32
The Committee
unanimously ordered an amended Anderson-Pelly bill to satisfy the needs
of marine mammals.
33
According to the National Oceanic and Atmospheric Administration
(NOAA),
34
the MMPA was passed based on the following findings and
policies: some marine mammal species or stocks may be in danger of
extinction or depletion as a result of human activities; these species or
stocks must not be permitted to fall below their optimum sustainable
population level (“depletion”); measures should be taken to replenish
these species or stocks; there is inadequate knowledge of the ecology and
population dynamics; and marine mammals have proven to be resources
of great international significance.
35
The MMPA divides the authority between NOAA in the Department
of Commerce and the Department of the Interior.
36
The MMPA gives the
Secretaries of the Interior and Commerce authorization and direction “to
establish general limitations on the taking of all marine mammals, and
within those limitations, to issue permits for their taking.”
37
NOAA
provides for the continuous research, management, and protection of
whales, porpoises, dolphins, and seals.
38
The other animals covered under
the bill (walruses, sea otters, polar bears, and manatees) are protected and
managed by the Department of the Interior.
39
32. H.R. REP. NO. 92-707.
33. H.R. R
EP. NO. 92-707.
34. The National Oceanic and Atmospheric Administration is a federal agency focused on the
condition of the oceans and the atmosphere.
35. Marine Mammal Protection Act (MMPA) Overview, N
ATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, http://www.nmfs.noaa.gov/pr/laws/mmpa/ (last updated Oct. 8,
2015).
36. H.R. R
EP. NO. 92-707.
37. H.R. R
EP. NO. 92-707. See also U.S. Maritime Limits & Boundaries, NATIONAL OCEANIC
AND
ATMOSPHERIC ADMINISTRATION OFFICE OF COAST SURVEY,
http://www.nauticalcharts.noaa.gov/csdl/mbound.htm (last visited Sept. 12, 2015) for an image
depicting the United States’ water territory.
38. U.S. Maritime Limits & Boundaries, supra note 37.
39. Id. See also The Marine Mammal Protection Act of 1972, Amended 1994, T
HE MARINE
MAMMAL CENTER, http://www.marinemammalcenter.org/what-we-do/rescue/marine-mammal-
protection-act.html (last visited Sept. 12, 2014). “The National Marine Fisheries Service, part of the
National Oceanic and Atmospheric Administration within the Department of Commerce, is
responsible for managing cetaceans, otariids, and phocids. The U.S. Fish and Wildlife Service, part
of the Department of the Interior, is responsible for managing odobenids, sirenians, otters, and polar
bears. The Animal and Plant Health Inspection Service, part of the Department of Agriculture, is
responsible for regulations managing the facilities that house marine mammals in captivity.” Id.
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The MMPA’s ostensibly limited exceptions on the “taking,”
40
or
importing marine mammals, sanction permits holding the animals captive
for the purposes of scientific research and public display.
41
During their
presentation of legislation, the House of Representatives stated:
The effect of this set of requirements is to insist that the management of
the populations be carried out with the interests of the animals as the
prime consideration . . . . The primary objective of this management
must be to maintain the health and stability of the marine ecosystem;
this in turn indicates that animals must be managed for their benefit and
not for the benefit of commercial exploitation.
42
The MMPA was amended in 1988 and 1994.
43
The 1988
amendments introduced further eligibility restrictions on the public
display permit by enumerating that such permits would only be granted to
public display entities that intended to exhibit the animal for an
“educational or conservation-oriented program
44
that conforms to
professionally recognized standards of the public display community.”
45
The standards also had to be approved by the Secretaries of Commerce
and the Interior.
46
Then, in 1994, the Act was amended once again to
remove the requirement for Secretarial approval of the standards to govern
the public display industry.
47
The 1994 amendment also shifted the central power for the care and
maintenance of captive marine mammals to the Animal and Plant Health
Inspection Service (APHIS).
48
The amendments removed the requirement
for facilities to receive MMPA permits to keep marine mammals for
public display.
49
This means that the only permits issued for public display
40. “The term ‘take’ means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture,
or kill any marine mammal.” 16 U.S.C. § 1362 (West, Westlaw through P.L. 114-37, excluding P.L.
114-27, 2015). “The MMPA prohibits, with certain exceptions, the ‘take’ of marine mammals in U.S.
waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine
mammal products into the U.S.” Marine Mammal Protection Act Overview, N
ATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, http://www.nmfs.noaa.gov/pr/laws/mmpa/ (last visited Sep. 15,
2015).
41. See Dougherty, supra note 4, at 338 (discussing the presentation of legislation by the House
of Representatives in regards to the authorized takings of marine mammals).
42. H.R. R
EP. NO. 92-707.
43. See Dougherty, supra note 4, at 338.
44. See id. at 340.
45. Marine Mammal Protection Act Permits, 16 U.S.C. § 1374(c)(3)(A)(i) (West, Westlaw
through P.L. 114-37, excluding P.L. 114-27, 2015).
46. Marine Mammal Protection Act Amendments of 1988, Pub. L. No. 100-711, 102 Stat. 4755
(1988).
47. Marine Mammal Protection Act of 1972, Pub. L. No. 92-552, 86 Stat. 1165 (1972).
48. Pub. L. No. 92-552, 86 Stat. 1165.
49. See 16 U.S.C. § 1374 (West, Westlaw through P.L. 114-37, excluding P.L. 114-27, 2015).
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purposes are for capture from the wild, which includes obtaining
releasable stranded marine mammals and importing marine mammals.
50
APHIS enacted new standards of care under the Animal Welfare Act.
51
After further negotiating the public display industry rules involving
animal protection groups, veterinarians, and government managers,
APHIS also published new standards for care,
52
treatment, and
transportation of captive marine mammals in 2001.
53
B. Inadequacies of the Marine Mammal Protection Act
Regardless of the MMPA’s seemingly notable species management
and sustainable population objectives, the Act has a multitude of
shortcomings that interfere with its policy and conservation goals.
54
The
Act’s deficiencies include the questionable public display industry-set
standards and the lack of oversight and enforcement of these standards,
which are evidenced and exacerbated through divided agency
responsibility and inconsistent regulation reinforcement.
55
One of the largest gaps in the MMPA is the industry’s control of the
standards.
56
Public display facilities have to abide by uncollected and
unapproved “professionally recognized standards” for education or
conservation programs, which require them to completely self-regulate.
57
50. See 16 U.S.C. § 1374.
51. See generally 7 U.S.C. §§ 2131-2159 (West, Westlaw through P.L. 114-37, excluding P.L.
114-27, 2015).
52. APHIS’s new standards for care introduced requirements for enclosures constructed so as
to keep unwanted animals from entering and established new medical and feeding recordkeeping
requirements for individual animals, including a requirement that facilities maintain necropsy records
for three years and make them available to Advisory Committee inspectors upon request. APHIS
implemented the rule after establishing a Marine Mammal Negotiated Rulemaking Advisory
Committee to recommend revisions to the marine mammal regulations. The Committee met for three
sessions and—under the rules governing the negotiated rulemaking process, and in accordance with
the organizational protocols established by the Committee—APHIS agreed to publish as a proposed
rule any consensus language developed during the meetings unless substantive changes were made as
a result of authority exercised by another Federal Government entity. The Animal Welfare Act: A
Legislative and Regulatory History, APHIS, https://www.aphis.usda.gov/
animal_welfare/downloads/awa_leg_history.pdf.
53. See generally 9 C.F.R. §§ 3.100-118 (2012).
54. See Dougherty, supra note 4, at 339.
55. Naomi Rose et al., The Case Against Marine Mammals in Captivity, T
HE HUMANE
SOCIETY OF THE UNITED STATES & WORLD SOCIETY FOR THE PROTECTION OF ANIMALS, 51,
available at
http://www.humanesociety.org/assets/pdfs/marine_mammals/case_against_marine_captivity.pdf.
See also Dougherty, supra note 4, at 339-41.
56. See Dougherty, supra note 4, at 339.
57. 16 U.S.C. § 1374(c)(2)(A)(i) (West, Westlaw through P.L. 114-37, excluding P.L. 114-27,
2015).
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Since Congress allows the public display industry to have this expansive
control, they have inhibited any future narrowing of regulations that may
be necessary for conservational or animal welfare purposes.
58
The AZA
and AMMPA members have combined the standards that their members
already used, which are now known as the public display industry’s
“professionally recognized standards.”
59
Their educational and
conservational programs require that all institutions have a mission
statement including education, a written education plan, and structured
education programs directed by a professional with educational
programming training.
60
Permit-holding public display facilities’
education programs must offer “multiple levels of learning opportunities,
which include advanced education programming for all ages, as well as
teacher training.”
61
The information that these display facilities present to
the general public about marine wildlife conservation, the animals, and
their ecosystems must also be based on the “best current scientific
knowledge.”
62
Although these standards are compiled and published, there is very
little supervision to ensure that the measures are adequately met.
63
The
loose management of regulation has resulted in a vast range of both
quality and accuracy of the current scientific content being represented to
the public.
64
The regulating agency has “no process for ongoing
evaluation of education and conservation programs at public display
facilities to ensure that they are meeting the mandatory professional
standards that the industry has established.”
65
Furthermore, the divided regulatory responsibilities among the
various implementing agencies contribute to the shortcomings of the
MMPA.
66
Under the Department of Commerce, the National Marine
Fisheries Service (NMFS) protects whales, dolphins, porpoises, seals, and
sea lions.
67
Under the Department of the Interior, the Fish and Wildlife
58. See Dougherty, supra note 4, at 339.
59. Id. at 340.
60. Standards and Guidelines, A
LLIANCE OF MARINE MAMMAL PARKS & AQUARIUMS 5,
http://ammpa.org/_docs/S_GSummary2010.pdf.
61. Id. at 4.
62. Id.
63. See Dougherty, supra note 4, at 340.
64. Id.
65. Marine Mammals in Captivity: What Constitutes Meaningful Public Education?,
C
OMMITTEE ON NATURAL RESOURCES, http://naturalresources.house.gov/calendar/
eventsingle.aspx?EventID=181362 (last visited Feb. 23, 2014).
66. See Dougherty, supra note 4, at 340.
67. See generally 16 U.S.C. §§ 1361-1423h (West, Westlaw through P.L. 114-37, excluding
P.L. 114-27, 2015). See also Annual Report to Congress 2009, T
HE MARINE MAMMAL COMMITTEE,
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Service (FWS) maintains supervisory authority over walruses, manatees,
dugongs, sea otters, and polar bears.
68
While the NMFS is required to
maintain life history records of the animals under their jurisdiction in U.S.
display facilities and all foreign dolphinaria and aquaria with which they
trade,
69
the FWS is not required to maintain life history or inventory
records of the species they regulate.
70
Under this requirement, facilities
must submit their records to NMFS so that NMFS can compile the
documents and update the Marine Mammal Inventory Report (MMIR).
71
These inventories reveal the document history of “disturbing causes of
death, high mortality rates, and low birth rates.”
72
The public display
industry contends that these mortality rates and statistics are evidence of
the “steep learning curve” of marine mammal care; however, the World
Society for the Protection of Animals, the Humane Society of the United
States, and numerous other animal welfare groups have identified that
these rates are indicative of the animals’ inability to adapt well to
captivity.
73
Under the Department of Agriculture, APHIS is in charge of
enforcing the regulations of the Animal Welfare Act for facilities that keep
marine mammals in captivity.
74
These captivity enclosure standards
address facilities and operations, space requirements,
75
health and
husbandry, water quality,
76
sanitation,
77
and transportation.
78
In 1993,
APHIS acknowledged how outdated many of these standards were, and
they announced revision plans.
79
It was not until eight years later, in 2001,
available at http://www.mmc.gov/wp-content/uploads/2009annualreport.pdf [hereinafter MMC Ann.
Rep.].
68. 16 U.S.C. §§ 1361-1423h. See also MMC Ann. Rep., supra note 67, at 34-98.
69. 16 U.S.C. § 1374(c)(10) (West, Westlaw through P.L. 114-37, excluding P.L. 114-27,
2015); Rose et al., supra note 55, at 2.
70. Dougherty, supra note 4, at 341.
71. See 16 U.S.C. § 1374(c)(10). See also Database: U.S. Marine Mammal Inventory, S
UN
SENTINEL, http://databases.sun-sentinel.com/news/broward/ftlaudMarineMammals4/ (last visited
Feb. 3, 2014) (provides a searchable database of the complete inventory through March 24, 2010).
For the orca whale MMIR, see John Kielty, Marine Mammal Inventory Report: Killer Whales
(Orcinus orca) in Captivity, available at http://theorcaproject.files.wordpress.com/2011/03/mmir-
deficiency-evaluation-killer-whales2.pdf.
72. Rose et al., supra note 55, at 2.
73. Id. at 11.
74. See generally 9 C.F.R. §§ 3.100-118 (2012) (providing the specifications of the humane
handling, care and transportation of marine mammals).
75. 9 C.F.R. § 3.104.
76. 9 C.F.R. § 3.106.
77. 9 C.F.R. § 3.107.
78. 9 C.F.R. § 3.116.
79. See 58 Fed. Reg. 39, 458 (July 23, 1993) (codified at 9 C.F.R. pt. 1 & 3).
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that the agency eventually released some modified sections.
80
Despite APHIS’s 2001 modifications, there have still been issues
with marine mammals’ captivity enclosures because APHIS continued to
avoid issuing necessary citations to various members of the public display
industry.
81
Members of animal protection and activist communities have
disputed APHIS’s jurisdiction and argued that it be removed or limited in
favor of reestablishing NMFS and FWS as the regulation agencies for
these standards.
82
These activists argue that APHIS’s areas of proficiency
and expertise do not include aquatic mammal care and that their
substandard record of regulation and oversight establishes their inability
to properly supervise marine mammal care.
83
The split responsibility and limited supervision of the public display
industry’s self-regulation creates a regulatory void. One example of this
void can be seen in swim-with-the-dolphins (SWTD) programs.
84
In 1994,
APHIS began their authority over SWTD programs, and published their
proposed regulations a few months later.
85
Nearly four years after these
proposals, APHIS had still not published final regulations,
86
meaning that
these interactive programs operated without any federal regulations
during this extensive period of time.
87
In 1998, the final regulations were
released and reflected animal welfare policies by requiring protective
refuge areas, regulating the appropriate swimmer-to-dolphin ratios, the
80. 9 C.F.R. §§ 3.101-118.
81. See 9 C.F.R. §§ 3.101-118. One notable example of APHIS’s failure to properly cite
occurred in Miami, Florida at the Miami Seaquarium. For forty-three years, twenty-one-foot-long,
7,000-pound orca whale Lolita has been exhibited at Seaquarium. Since her capture in 1970, Lolita
has been living in a tank that is too small, which is illegal under APHIS’s standards for size
requirements. Lolita’s thirty-five foot by eighty foot tank is only twenty feet deep at the deepest point,
and twelve feet deep on the surrounding edges. The pool is thirteen feet shorter than is required by
the Animal Welfare Act §3.104; offers her no protection against sunlight or inclement weather,
violating AWA § 3.103(3)(b); Lolita’s pool does not meet the perimeter fence requirements to protect
her from unauthorized people or animals invading her space, violating AWA §§ 3.103(3)(c) and
3.101(2); and Lolita has been isolated from other orca whales since 1980, violating AWA§3.109
Separation. See Justice for Lolita. Taking Her Fight with APHIS to the Next Level, T
HE ORCA
PROJECT (June 7, 2011), https://theorcaproject.wordpress.com/2011/06/07/usda-aphis-fails-killer-
whale-lolita-at-miami-seaquarium/. Even after years of qualified animal specialists and concerned
citizens’ attempts to contact APHIS and report these violations, APHIS released a statement that they
inspected Miami Seaquarium and reported, “No non-compliant items found . . . .” Id.
82. P
ATRICIA LAWSON & EUGENE H. BUCK, CONG. RESEARCH SERV., 95-517 ENR, MARINE
MAMMALS IN CAPTIVITY: BACKGROUND AND MANAGEMENT ISSUES IN THE UNITED STATES (1997).
83. See C
ONG. RESEARCH SERV. 95-517 ENR.
84. Dougherty, supra note 4, at 342.
85. See 60 Fed. Reg. 4383 (Jan. 23, 1995) (codified at C.F.R. pt. 1 & 3).
86. 9 C.F.R. §§ 3.100-118 (2012).
87. 9 C.F.R. §§ 3.100-118.
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length of interaction times, and more.
88
However, less than six weeks after
they were published, public display industry opposition received an
exemption from these regulations;
89
and in 1999, the regulations were
suspended altogether.
90
Thus, SWTD facilities and programs are presently
operating without any federal regulations.
91
Despite all of these deficiencies, the MMPA still allows exemptions
for public display by purporting that the primary justification of these
exhibits is their “educational benefit.”
92
The law reads, “A permit may be
issued to take or import a marine mammal for the purpose of public
display only to a person which the Secretary [of Commerce]
determines . . . offers a program for education or conservation purposes
that is based on professionally recognized standards of the public display
community.”
93
Sadly, the educational value of dolpharia and aquaria’s
programs has been proven to be not only questionable, but also
disreputable.
94
III.
HARM TO HUMANS AND KILLER WHALES FROM HUMAN-WHALE
INTERACTION
A. “Kings of the Sea”: Killer Whales Decoded
It was only forty years ago that the public’s perception of killer
whales was filled with inaccurate superstition and fear.
95
People thought
that these whales were vicious, man-hunting killers who would stop at
88. 9 C.F.R. §§ 3.100-118.
89. See Swim-With-the-Dolphin Programs, 63 Fed. Reg. 55,012-01 (Oct. 14, 1998) (codified
at 9 C.F.R. pt. 3). “The exemption was based on the unanswered question of whether the standards
for swimming interactions should apply to sessions when visitors remain standing and non-buoyant.”
See id.
90. See Rose, et. al., supra note 55, at 67-88 n. 205 (citing an article in the Washington Legal
Times that discussed an influential lobbyist for the public display industry, Stephen Wynn, who was
the owner of the Mirage Hotel in Las Vegas in 1999. Wynn wanted to open interactive programs with
the display dolphins he owned.).
91. See Dougherty, supra note 4, at 342.
92. Id. at 343.
93. 16 U.S.C. § 1374(c)(2)(A)(i) (West, Westlaw through P.L. 114-37, excluding P.L. 114-27,
2015).
94. See V
ANESSA WILLIAMS & WHALE & DOLPHIN CONSERVATION SOC’Y, CAPTIVE ORCAS
‘DYING TO ENTERTAIN YOU’: THE FULL STORY, 51 (1999), http://www.wdcs.org/
submissions_bin/orcareport.pdf (“The larger parks also claim to educate through the medium of a
wide variety of glossy brochures, educational packs for schoolchildren, ‘Killer Whale Fact Sheets’
and other pamphlets. In these, as in the show commentaries, a highly selective view of orcas is
presented, carefully orchestrated to present the captive situation in the best possible light and deflect
any potential opposition.”).
95. B
LACKFISH, supra note 5.
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nothing to rip them to shreds.
96
Through the years, orca researchers and
scientists discovered that killer whales are far from vicious. These
mammals are friendly, understanding, tolerant, and intuitively seek
companionship.
97
To this day, there is no record of an orca doing any harm
to any human in the wild.
98
These whales live in large family communities
and have lifespans that mirror the human lifespan.
99
Each community has
a completely different set of behaviors, which include an individual
repertoire of vocalizations with no overlap.
100
The scientific community
is reluctant to deem these vocalizations as “languages”; however,
researchers have speculated that they closely resemble the different
dialects of human languages.
101
Neuroscientists have also performed in-depth studies on the orca
whale’s brain. Scientists and researchers have discovered that orca whales
have a part of the brain that human beings do not have.
102
A part of an
orca whale’s brain extends outward adjacent to their limbic system into
what neuroscientists call a para-limbic cleft, which processes emotions.
103
According to neuroscientist, Lori Marino, “the safest inference would be
that these are animals who have highly elaborated emotional lives.
Dolphins and whales have a sense of self and a sense of social bonding
that is on another level. This level is far more complex than other animals,
including humans.”
104
The unique characteristics of killer whales make holding these
marine mammals in captivity not only a serious risk to the animals, but
also to the human beings that the animals interact with. In 2008, the U.S.
Marine Mammal Commission conducted a marine mammal survey, which
found that more than half of marine mammal workers have been injured
by the animals that they work and train.
105
Over one-third of these injuries
96. Id. See also David Kirby, Killer Whales Not in Captivity: 7 Things You’ll Never Learn at
SeaWorld, T
AKEPART (last visited Sept. 12, 2014). “In the wild, most orcas stay near or with their
families for life, travel up to 100 miles a day, and display complex communal rituals that provide
stability, cooperation and regular opportunities for the unbridled expression of sheer joy.” Id.
97. Kirby, supra note 96.
98. Id.
99. Id.
100. Id. See also Basic Facts About Orcas, D
EFENDERS OF WILDLIFE,
http://www.defenders.org/orca/basic-facts (last visited Sept. 12, 2014) (Orca whales’ complex
communication dialects are unique to each pod.).
101. B
LACKFISH, supra note 5.
102. Id.
103. Id.
104. Id.
105. Tania D. Hunt et al., Health Risks for Marine Mammal Workers, 81 D
ISEASES OF AQUATIC
ORGANISMS 81, 84 (2008).
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are classified as “severe”, which include deep wounds, fractures, or
lacerations that require stitches.
106
The trainers and staff who are in
contact with captive marine mammals for more than fifty days per year
are several times more likely to endure traumatic injuries from the
animals.
107
The captive marine mammals suffer from a vast range of conditions,
diseases, mental instability, and causes of death that are not found in wild
populations.
108
These conditions include high levels of stress, fungal
bacterial pneumonia, bleeding ulcers, myocardial fibrosis, heart failure,
chronic colitis, agranulocytosis, pseudomonas, and shortened life
spans.
109
B. A History of Entertainment: SeaWorld’s Captive Killer Whales
For over four decades, killer whales populating the waters of the mid-
Puget Sound to British Columbia have faced enormous pressure to survive
in their own habitats.
110
In the late 1960s and early 1970s, public display
and exhibition organizations caused the “single largest impact on the
whales when they captured at least sixty-eight individuals as sculpture
models, for display and scientific research.”
111
Orca capture methods have changed over the years.
112
The learning
curve occurred after the first whales were caught in 1961 and 1964 when
several orcas died accidentally after becoming entangled in the nets.
113
In
1962, collectors for one of California’s aquatic parks, Marineland shot
and killed a mature female orca after the boat’s propeller became entwined
in a line attached to a hoopnet that had snared the whale.
114
The whales in
her pod attacked the boat, which led the collectors to “defend” themselves
106. Id.
107. Id.
108. See Dougherty, supra note 4, at 360.
109. See generally Kielty, supra note 71.
110. See Proposed Conservation Plan for Southern Resident Killer Whales (Orcinus Orca),
N
AT’L MARINE FISHERIES SERV., http://www.nwr.noaa.gov/Marine-Mammals/Whales-Dolphins-
Porpoise/Killer-Whales/Conservation-Planning/Index.cfm (last visited Feb. 8, 2014) [hereinafter
NMFS, Conservation Plan].
111. See Beth Phillips, The Southern Resident Orcinus Orca Population in Puget Sound:
Hypotheses on Population Ratios and the Effects of the Capture Era on Behavior of the Whales, 8-10
(1999) (unpublished B.S. thesis, Western Washington University) (on file with the Western
Washington University Library).
112. E
RICH HOYT & WHALE AND DOLPHIN CONSERVATION SOCIETY, THE PERFORMING
ORCA—WHY THE SHOW MUST STOP SOCIETY, (Bath U.K. ed., Whale and Dolphin Conservation
1992).
113. Id.
114. Id.
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with guns.
115
Ted Griffin and Don Goldsberry were the first collectors to
perfect a successful catching method in the late 1960s. Goldsberry
continued to catch orcas in the Puget Sound throughout the 1970s, and
eventually became SeaWorld Entertainment, Inc.’s (“SeaWorld”)
“Corporate Director of Collecting.”
116
Goldsberry utilized aircrafts, spotters, speedboats, and bombs to herd
and capture killer whales for SeaWorld.
117
Goldsberry employed two
main capture methods. The first method involved waiting to pounce on
the whales as they swim into a narrow, shallow water inlet, and then
stringing a net across the mouth, entrapping the entire pod.
118
Once the
entire pod was trapped, individual orcas
119
could be handpicked from the
group, often by corralling them into separate enclosures.
120
If the orcas
refused to swim into an inlet or bay, Goldsberry used explosives called
seal bombs to force the whales in.
121
This method is primarily used in the
waters surrounding British Columbia and Washington.
122
The second
method, which is primarily used in waters near Iceland, involves catching
orcas in the open sea far from land, and requires that one or more whales
be encircled with a purse seine net.
123
This is the most popular method of
capture and the one that is still used today.
124
In 1976, a court order
regulated orca-capture operations and ejected SeaWorld from the
Washington waters.
125
Without missing a beat, SeaWorld began whale
115. Id.
116. Id.
117. Id.
118. Id.
119. The orca is the apex predator of the sea and the largest member of the dolphin family. It is
highly intelligent, highly adaptable, and able to communicate and coordinate hunting tactics. Not
typically a migratory species, orca ‘migrations’ are principally in response to changes in favored prey
abundance and can sometimes be long, e.g., between Alaska and California. Depending on the type
of social group and location, orcas will hunt fish, squid, seals, sea lions, seabirds, and even whales
much larger than themselves. There has never been a documented attack on a human in the wild, and
there are some stories of orcas actually protecting humans at sea from sharks. Orca (Killer Whale)
Orcinus orca, W
HALE AND DOLPHIN CONSERVATION (WDC), http://us.whales.org/species-
guide/orca-killer-whale (last visited Jan. 26, 2016).
120. H
OYT, supra note 112.
121. Id.
122. Id.
123. Id. “A purse seine is a large wall of netting deployed around an entire area or school of fish
that has floats along the top line with a lead line threaded through rings along the bottom. Once [the
target] is located, a skiff encircles the [target] with the net. The lead line is then pulled in, ‘pursing’
the net closed on the bottom, preventing [the target] from escaping by swimming downward.” Purse
Seine: Fishing Gear and Risks to Protected Species, N
ATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, http://www.nmfs.noaa.gov/pr/interactions/gear/purseseine.htm (last visited Jan.
21, 2015).
124. Purse Seine: Fishing Gear and Risks to Protected Species, supra note 123.
125. B
LACKFISH, supra note 5.
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hunting in the waters surrounding Iceland.
126
C. Life and History of Tilikum—A Story of Injury to Trainers and Harm
to Whales in Captivity
In 1983, Tilikum, a male killer whale, was captured in the North
Atlantic off the east coast of Iceland.
127
At two years old, he was already
over 11.5 feet long.
128
After Tilikum was forced away from his family, he
was kept in a cement holding tank for almost a year at the Hafnarfjörður
Marine Zoo near Reykjavik, Iceland.
129
Tilikum was housed in a tank that
was far too small for him, and he was only able to swim in circles and
float.
130
Finally, he was transferred to Sealand of the Pacific, which is now
closed. Sealand was a dilapidated aquatic park in South Oak Bay, British
Columbia, Canada.
131
Tilikum’s new “home” was a 100-by-150 foot pool
that was only 35 feet deep.
132
In the wild, killer whales live in incredibly
matriarchal societies, and males are kept at the perimeter.
133
At Sealand,
Tilikum was at the bottom of the orca social structure.
134
When he was
introduced, two older female orcas, Haida II and Nootka IV regularly
ganged up on Tilikum.
135
Sealand employees recalled that there would be
times during certain seasons where Tilikum’s entire body would be
covered head-to-fin with rakes.
136
Raking is a way that orcas show
dominance by forcefully digging into each other’s bodies and scratching
with their teeth.
137
Scott Huxton, former director of Sealand, stated that when Tilikum
was first introduced to the facility and its trainers, everything went “fine
and dandy.”
138
Sealand employees described Tilikum as “extremely well-
behaved and always eager to please” and even stated that Tilikum was the
126. Id.
127. 30 Years and Three Deaths: Tilikum’s Tragic Story, S
EAWORLD OF HURT,
http://www.seaworldofhurt.com/tilikum-captivity.aspx (last visited Feb. 14, 2014).
128. Id.
129. Id.
130. Id.
131. Id.
132. Id.
133. Id.
134. B
LACKFISH, supra note 5.
135. A Whale of a Business: Inside SeaWorld, PBS
FRONTLINE,
http://www.pbs.org/wgbh/pages/frontline/shows/whales/seaworld/tilikum/ (last visited Feb. 14,
2014) [hereinafter A Whale of a Business].
136. B
LACKFISH, supra note 5.
137. Corky’s Story, T
HE ORCA ZONE, http://www.orca-zone.com/aboutorcas/corkysstory.html
(last visited Feb. 10, 2014).
138. B
LACKFISH, supra note 5.
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whale they trusted most.
139
However, the previous head trainer employed
instruction techniques that involved punishment.
140
In his interview for
the documentary, Blackfish, Huxton described these punishment
techniques:
He [the head orca trainer at Sealand during Tilikum’s time there] would
team a trained orca with Tilikum, who was untrained and send them both
off to perform the same behavior. If Tilikum didn’t do it, then both
animals were punished . . . deprived of food to keep them hungry. This
caused a lot of frustration with the larger, trained orca whales, which in
turn became frustrated with Tilikum and would rake him with their
teeth.
141
Sealand employees speculated that the main issue regarding the
aggression between Tilikum and the older females was the process of
storing the whales at night.
142
The three whales were stored together in a
twenty-by-thirty foot pool called a module, to prevent people from cutting
the nets and stealing the whales.
143
The lights were also completely
extinguished, so the whales were kept completely without stimulation in
these small, dark, metal pools for a large majority of their lives.
144
When
the whales first arrived at Sealand, they were small enough to fit into the
modules; however, Huxton stated bluntly that by the time the whales were
full-grown, they were basically immobile while in the modules.
145
The
whales ultimately refused to be lured into the modules at night.
146
As a
consequence, the trainers began to hold back food except in the modules.
The whales knew that they would be fed if they went into the module.
147
Former SeaWorld trainer, Christopher Porter who worked with Tilikum
at Sealand stated that when the whales were released in the morning, they
would often see new rake marks and blood on Tilikum.
148
D. Danger to Humans from Interaction with Whales in Captivity
On February 20, 1991, Keltie Byrne, a 20-year-old marine biology
student and competitive swimmer who worked part-time as a Sealand
139. Id.
140. Id.
141. Id.
142. Id.
143. Id.
144. Id.
145. Id.
146. Id.
147. Id.
148. Id.
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trainer, slipped and fell into Tilikum, Haida and Nootka’s pool during a
Sealand show.
149
Tilikum took her in his mouth and dragged her
repeatedly around the pool. After being released by Tilikum, and despite
Byrne’s efforts, the female whales refused to let her out of the pool and
held her underwater until she drowned.
150
It took the Sealand employees
over two hours to recover Byrne’s body from the whales.
151
In September
1991, Sealand closed its doors and put the three whales up for sale.
152
Huxton stated that it was Sealand’s understanding that the three whales
would not be used in shows or as performance animals.
153
He further
recalled that his understanding of the whales’ behavior was that the
performances were so highly stimulating for the animals that they were
likely to repeat the aggressive behavior.
154
When SeaWorld heard about Tilikum’s availability, they
immediately applied to the NMFS for a permit to import all three of them
for display.
155
According to former SeaWorld trainer, Samantha Berg,
SeaWorld was thrilled to hear about Tilikum because it needed a
breeder.
156
In 1992, 12,000-pound Tilikum arrived at SeaWorld.
157
Tilikum was twice as large as the next killer whale in the facility. When
Tilikum arrived at SeaWorld, the other whales, especially females,
viciously and repeatedly attacked him.
158
Given Tilikum’s incredible size,
and the close quarters the whales were squeezed into, Tilikum could not
get away from the females.
159
Although SeaWorld claimed that Tilikum
was always with the other whales, trainers stated that he was often put into
isolation and was usually with the females for breeding purposes only.
160
Tilikum’s sperm was used to build up a collection of orcas throughout the
years, and now fifty-four percent of SeaWorld’s orcas have his genes.
161
Multiple SeaWorld trainers described Tilikum (who they lovingly
nicknamed “Tilly”) as a happy, eager, and quick learner.
162
However, the
SeaWorld employees were also led to believe that Tilikum had nothing to
149. See A Whale of a Business, supra note 135.
150. Id.
151. See 30 Years and Three Deaths: Tilikum’s Tragic Story, supra note 127.
152. Id.
153. B
LACKFISH, supra note 5.
154. Id.
155. See A Whale of a Business, supra note 135.
156. B
LACKFISH, supra note 5.
157. Id.
158. Id.
159. Id.
160. Id.
161. See 30 Years and Three Deaths: Tilikum’s Tragic Story, supra note 127.
162. B
LACKFISH, supra note 5.
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do with Keltie Byrne’s death and that her death had been entirely a result
of the female whales’ aggression.
163
Samantha Berg noted that during
Tilikum’s first few days at SeaWorld, one of the senior trainers was
walking near Tilikum’s pool with her wetsuit pulled down to cover only
her lower body.
164
The trainer began talking to Tilikum and making
cooing noises at him.
165
Berg recalled that one of the managing
supervisors began screaming, “Get her out of there!”
166
Berg further
explicated that SeaWorld’s management made it clear that there was a
need to exercise caution around Tilikum, despite what they had told the
trainers and employees.
167
After eight years of living in SeaWorld’s captivity, Tilikum was tied
to a second human death.
168
Early one morning in July 1999, twenty-
seven-year-old Daniel Dukes was found lifeless draped over Tilikum’s
back.
169
Dukes reportedly got past security at SeaWorld after the park had
closed.
170
Dukes entered Tilikum’s enclosure wearing only his underwear,
and the autopsy reported that he either fell or was pulled into the whale’s
tank.
171
In 2010, the third and most infamous death occurred in Tilikum’s
tank.
172
During a SeaWorld performance, forty-year-old senior orca
trainer, Brancheau, was petting Tilikum on the nose. When she turned her
back, Tilikum reached up and grabbed her, swinging her in his mouth
while he dragged her deeper and deeper underwater.
173
Horrified
SeaWorld patrons were hurriedly ushered out of the arena as workers tried
to confine Tilikum.
174
Tragically, by the time SeaWorld’s staff was able
to get to Brancheau’s body, she was dead.
175
The autopsy determined that
Tilikum’s violent thrashing motions were so severe that Brancheau was
163. Id.
164. Id.
165. Id.
166. Id.
167. Id.
168. Man Drowns in Orca Pool at SeaWorld Orlando, E
NVIRONMENTAL NEWS SERVICE (July
7, 1999).
169. Id.
170. SeaWorld’s Killer Whale Makes Splashy Return to Stage, Gets Thunderous Ovation, ABC
N
EWS (Mar. 20, 2011), available at http://abcnews.go.com/US/killer-whale-tilikum-makes-big-
splash-seaworld-13/story?id=13254217.
171. Id.
172. SeaWorld Trainer Killed by Whale had Fractured Jaw and Dislocated Joints, ABC N
EWS
(Mar. 31, 2010), available at http://abcnews.go.com/GMA/seaworld-trainer-dawn-brancheau-
suffered-broken-jaw-fractured/story?id=10252808.
173. Id.
174. Id.
175. Id.
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partially scalped and suffered from a multitude of injuries, including a
fractured lower jaw, partially fractured vertebra, several cracked ribs, and
a dislocated elbow and knee.
176
The initial news reports about Brancheau’s death reported that she
had fallen into Tilikum’s pool and drowned.
177
After eyewitness accounts
disputed the reports, SeaWorld released a statement that Brancheau had
made a critical mistake in leaving her long ponytail free, which caused an
unfamiliar sensation for Tilikum and made him attack her.
178
SeaWorld
management made recurring statements asserting that Tilikum was not an
aggressive whale.
179
E. Occupational Safety and Health Act—Some Protection for Trainers
and Indirect, but Insufficient, Protection for Whales
Following Brancheau’s death, OSHA investigated SeaWorld.
180
OSHA determined that SeaWorld had willfully violated employee safety
regulations by putting their trainers in the water in close interaction with
the captive orca whales.
181
OSHA cited SeaWorld with multiple safety
violations and $75,000 in fines, and most notably, OSHA ruled that
SeaWorld trainers were not to be in close physical contact with whales in
captivity.
182
Because SeaWorld’s “Shamu” shows have been their
trademark moneymaker for years, the company quickly appealed OSHA’s
findings to the independent Occupational Safety and Health Review
Commission (the Commission).
183
The Commission appointed Judge Welsch to hear the case, and
SeaWorld and OSHA each presented testimony for two weeks in the fall
of 2012.
184
In Judge Welsch’s forty-seven-page ruling, he wrote, “As the
custodian of its killer whales, SeaWorld has an ethical duty to provide
health and medical care to them. Unlike show performances, which can
successfully continue without close contact between the killer whales and
the trainers, SeaWorld’s husbandry activities require a certain amount of
176. Id.
177. B
LACKFISH, supra note 5.
178. Id.
179. Id.
180. Jennifer Mishler & Sandy McElhaney, SeaWorld vs. OSHA: No Matter Who Wins, the
Whales Lose, http://www.seashepherd.org/commentary-and-editorials/2013/11/12/seaworld-vs-
osha-no-matter-who-wins-the-whales-lose-624/ (last visited Feb. 14, 2014).
181. SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (2014).
182. Id.
183. Id.
184. See Mishler & McElhaney, supra note 180.
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contact between the trainers and the killer whales.”
185
Despite Judge
Welsch’s decision to reduce the “willful” violation of the OSHA down to
“serious,” which downgraded SeaWorld’s fines to a mere $12,000, his
ruling was undeniably critical of SeaWorld’s upper management.
186
SeaWorld asserted that they were unaware that working with killer whales
posed a hazard to its employees.
187
Judge Welsch openly criticized these
claims by calling them both “implausible” and “difficult to reconcile”
with the plethora of injuries and deaths that had occurred over the years.
188
Judge Welsch further admonished a SeaWorld executive who claimed
SeaWorld predicts whale behaviors with a ninety-eight percent success
rate, calling this “questionable data use with guesswork and averaging.”
189
Judge Welsch’s strongest reactions against SeaWorld’s management
practices were in response to SeaWorld’s conclusion that any perilous
incident between whales and trainers has been solely the result of the
trainer’s mistake.
190
In his ruling, Judge Welsch included that:
Since it is not part of SeaWorld’s corporate culture to acknowledge
unpredictable behavior by its killer whales, it must necessarily find that
its trainers are implementing the program incorrectly. SeaWorld holds
trainers to a near-impossible standard set by upper management, who
engage in a form of Monday-morning quarterbacking . . . . Any trainer
unfortunate enough to have to file an incident report is subject to second-
guessing by his or her superiors, who will always find the trainer did
something wrong, otherwise there would be no incident to report.
191
In its original citation, OSHA commented that it would accept some
safety solution other than a physical barrier, such as pool floors that lift or
emergency oxygen systems, but only if these systems could give “the
same or greater level of protection” as the physical barriers.
192
Legal
experts suggest that it is highly unlikely anything could provide this level
of protection, and a top OSHA manager testified that the only option he
could imagine was physical distance between the trainer and whale.
193
However, SeaWorld argued that these requirements are not practicable
185. Jason Garcia, Judge Rules SeaWorld Killer-Whale Trainers Must Be Protected by Physical
Barriers, O
RLANDO SENTINEL (May 30, 2012).
186. Id.
187. Id.
188. Id.
189. Id.
190. Id.
191. Garcia, supra note 185.
192. Id. “Physical barriers” refers to the fact that SeaWorld’s park trainers will not be allowed
to interact with orca whales during performances. Id.
193. Id.
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because the trainers need to be in close physical proximity with the orcas
in order to adequately care for them.
194
This did not impact Welsch’s
opinion because he strictly limited his ruling to SeaWorld’s shows.
195
Finally, Judge Welsch ruled that because SeaWorld’s Orlando-based park
posted record earnings in 2011 (the year following Brancheau’s death),
prohibiting water work shows would not harm the park economically.
196
Once again, SeaWorld disagreed with these decisions and filed an
appeal with the United States Court of Appeals for the D.C. Circuit.
197
On
November 12, 2013, SeaWorld appealed to the D.C. Circuit Court to
overturn OSHA’s safety citations and ban restricting the interaction
requirements between humans and killer whales during performances.
198
OSHA argued that SeaWorld had violated the general duty clause
199
of
the Occupational Safety and Health Act by exposing its workers to a
known hazard in the work place.
200
Eugene Scalia, son of Supreme Court Justice Antonin Scalia and
former solicitor of the United States Department of Labor, represented
SeaWorld.
201
Scalia argued that OSHA overstepped its federal bounds,
and had “no more of a right to impose restrictions on a specialized industry
like SeaWorld than it does to regulate tackling in the NFL or impose speed
limits in NASCAR.”
202
Scalia further argued that OSHA’s restrictions
present a “fundamental difference and stark change” in the premise of
SeaWorld’s existing business model, which is based on exhibiting humans
interacting with killer whales.
203
OSHA’s representative, Amy Tryon,
responded that despite the fact that SeaWorld has been known for its
194. Id.
195. Id.
196. Id.
197. Gabrielle Levy, SeaWorld Killer Whale Case Back in Court, UPI (Nov. 13, 2013),
http://www.upi.com/blog/2013/11/13/SeaWorld-killer-whale-case-back-in-court/6591384347037/.
198. SeaWorld Challenges Ban Limiting Interaction Between Whale and Trainer, CNN (Nov.
12, 2013), http://www.cnn.com/2013/11/12/us/seaworld-court-challenge/ [hereinafter SeaWorld
Challenges Ban].
199. OSHA’s general duty clause states:
(a) Each employer (1) shall furnish to each of his employees employment and a place of
employment which are free from recognized hazards that are causing or are likely to cause
death or serious physical harm to his employees; (2) shall comply with occupational safety
and health standards promulgated under this Act. (b) Each employee shall comply with
occupational safety and health standards and all rules, regulations, and orders issued
pursuant to this Act which are applicable to his own actions and conduct.
29 U.S.C. § 654 (West, Westlaw through P.L. 114-115 (excluding 114-94 and 114-95) 2015).
200. SeaWorld Challenges Ban, supra note 198.
201. Id.
202. Id.
203. Id.
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famous Shamu shows for many years, the park is not being asked to
prevent all activities or shows with the animals and that the reductions
imposed are completely feasible because SeaWorld is currently
complying with them.
204
SeaWorld contended that the close physical contact between whale
trainers and the animals makes their interactions more predictable; thus,
by reducing this contact and creating barriers and greater distances
between the humans and animals, the safety and predictability will be
undermined, and it will also harm their ability to properly care for the
animals, impeding their operations in a fundamental way.
205
The park also
asserted that trainers have been in close contact with orca whales since the
1960s, and OSHA could have opened an investigation at any time if it
believed that close contact presented a known and recognized hazard for
SeaWorld employees.
206
Benjamin Briggs, a labor law specialist,
commented that although these arguments are valid, SeaWorld faced an
“uphill battle” because the most critical piece of OSHA’s arguments was
the “long and well-documented track record of captive killer whales
behaving aggressively toward humans to the point that they have caused
a number of fatalities at SeaWorld and other facilities.”
207
This track
record could not be ignored and was crucial to the case.
208
This case generated quite a public stir, and on April 11, 2014, the
U.S. Court of Appeals for the D.C. Circuit denied SeaWorld’s appeal of
the safety citations issued by OSHA.
209
In a two-to-one decision, the
three-judge panel held that SeaWorld had defied its duties as an employer
by subjecting trainers to “recognized hazards” when working with orca
whales.
210
This decision is noteworthy because it allows OSHA to require
SeaWorld to limit the interactions trainers have with orca whales.
211
The
United States Department of Labor, which includes OSHA, stated that it
was pleased with the court’s findings.
212
The agency reported, “[T]he D.C.
Circuit Court found that SeaWorld knew about the hazards associated
with killer whale performances, and that the company did not adequately
204. Id.
205. Id.
206. Id.
207. Id.
208. Id.
209. SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202 (2014).
210. See id. See also Lawrence Hurley, Court Upholds Ruling Against SeaWorld Over Trainer
Safety, R
EUTERS (Apr. 11, 2014, 3:03 PM), http://www.reuters.com/article/2014/04/11/us-usa-courts-
employment-idUSBREA3A19Q20140411.
211. Id.
212. See Vivian Kuo, SeaWorld Appeal of OSHA Citations Denied, CNN (Apr. 13, 2014),
http://www.cnn.com/2014/04/11/us/seaworld-ruling/.
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address those hazards.”
213
In August 2014, SeaWorld filed a report with
the Securities and Exchange Commission stating that they were not going
to pursue an appeal of the April 2014 decision.
214
One of the unresolved aspects of the 2014 OSHA case against
SeaWorld is that the Court of Appeals decision did not address the most
crucial issue of the whole situation. While the case captured immense
public notoriety and put SeaWorld under a microscope, the actual issues
under contention failed to acknowledge—since it is not within the
authority of the Occupational Safety and Health Commission—the
injustice of keeping killer whales in captivity and the dire impact on our
aquatic ecosystems. The decision did benefit killer whales indirectly. By
limiting trainer contact with whales to protect the trainers, the opinion
indirectly protected the orca whales, to some extent, from use for human
amusement. Animal rights group People for the Ethical Treatment of
Animals (PETA) expressed public approval of the court’s decision.
215
PETA’s director of animal law, Jared Goodman, stated that the decision
“brings to an end days of trainers standing and riding on orcas for human
amusement.”
216
Nevertheless, SeaWorld released a statement specifying that it had
already introduced new safety procedures, such as moving trainers from
the water during shows. Even after the court’s ruling, however, “there will
still be human interactions and performances with killer whales.”
217
Judge
Judith Roberts wrote on behalf of the court that “statements by SeaWorld
managers do not indicate that SeaWorld’s safety protocols and training
made the killer whales safe; rather, they demonstrate SeaWorld’s
recognition that the killer whales interacting with trainers are
dangerous.”
218
Judge Roberts also criticized SeaWorld’s concerns about
the decision’s impact on its operations, saying, “The improved safety does
not change the essential nature of the business.”
219
IV.
PROPOSED CHANGES FOR NEW FEDERAL LEGISLATION:
213. Id.
214. Elizabeth McDonald, SeaWorld Drops OSHA Appeal to Keep Trainers Away From Orcas,
F
OX BUSINESS (Aug. 21, 2014), http://www.foxbusiness.com/industries/2014/08/21/seaworld-drops-
osha-appeal-to-keep-trainers-away-from-orcas/.
215. See Hurley, supra note 210.
216. Id.
217. See id.
218. Id.
219. Id.
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IMPLEMENTING ORCA
A. The Need for Conservation and Rehabilitation
Although animal activists and welfare groups have attempted to
lobby for the rights of these mammals for many years, these incredibly
powerful wild animals are still being forced to live their lives in what can
essentially be seen as a life of imprisonment. Due to the public display
industry’s dominant influence, vast resources, and powerful lobbying, the
animal protection community’s attempts at meaningful change for killer
whales have been summarily defeated.
220
The public display industry
utilizes huge amounts of resources fighting changes to the standards for
fear that stricter regulations would require massive overhaul of facilities’
structures, pools, holding tanks, veterinary care areas, policies, staff
training, procedures, and shows.
221
The argument concerning the living conditions and quality of life
enjoyed by captive animals versus wild is completely unbalanced.
222
The
public display industry and researchers dependent on captive subjects
assert that the wild environment is dangerous for marine mammals, often
containing both predators and pollution.
223
SeaWorld also continues a
propaganda campaign against allowing wild animals to live in their
natural habitats; SeaWorld researchers have claimed:
Our orcas live in habitats where the water quality and temperature are
carefully monitored and controlled. Unlike killer whales in the oceans,
those at SeaWorld are not forced to contend with dangers such as
shortages of food, parasites, and threats from humans . . . they receive a
balanced, nutritious diet, and we make sure their day includes plenty of
220. See Rose et al., supra note 55, n.150.
221. W
ILLIAMS, supra note 94, at 69. In 1994, with cash donations of up to $35,000 from
Anheuser-Busch, AZA and AMMPA representative Robert Jenkins boasted that they had weakened
the MMPA “through a consistent, coordinated and unrelenting approach to Capitol Hill and the
Congressional staff responsible for the MMPA reauthorization [sic]; the public display community
was able to achieve virtually all of [its] agenda.” Id. citing Summer Jenkins, Re-authorization of the
Marine Mammal Protection Act, 19 IMATA
SOUNDINGS (1994). For annual SeaWorld Parks’
lobbying budgets, see SeaWorld Parks & Entertainment, O
PENSECRETS.ORG,
http://www.opensecrets.org/lobby/clientsum.php? id=D000056553&year=2010 (last visited Feb. 10,
2014). See also Ryan Skukowskis, Double Trouble for Bart Stupak, SeaWorld Makes Waves in D.C.
and More in Capital Eye Opener, http://www.opensecrets.org/news/2010/03/double-trouble-for-bart-
stupak-seaw.html (last visited Feb. 10, 2014).
222. See generally Summer Jenkins, Re-authorization of the Marine Mammal Protection Act,
19 IMATA
SOUNDINGS (1994).
223. L
AWSON & BUCK, supra note 82. See also David Riley, Our Love of Dolphins has Turned
into a Questionable Affair, 23 S
MITHSONIAN 58, 63 (1993); HOYT et al., supra note 28, at 13.
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exercise.
224
Evidence supports that this statement is a complete and utter fallacy.
The death rate for captive orcas is three-fold that of wild orcas.
225
Board
Chairman Bryan Pease of the Animal Protection and Rescue League was
quoted saying, “I am sure the trainers will say that the whales are well
taken care of, but you can’t meet the behavioral needs of these large
marine mammals in a marine park.”
226
The psychological and even
suicidal conditions that the whales develop increase the risk of injury and
death faced by the other animals held with killer whales and to the human
beings they come into contact with.
227
Tilikum and other captive orca whales have been forced from their
natural habitats and constrained to exist completely differently from their
lives in the wild. SeaWorld has portrayed killer whales as “huggable,
cuddly sea pandas that let children sit on their backs and playfully splash
crowds with water” rather than the powerful, intelligent animals that they
are.
228
Thus, despite the strides made in SeaWorld of Fla., LLC v. Perez
229
to keep SeaWorld employees safe by requiring orca whales to be
separated by a physical barrier during water shows, this does not even
begin to address the real problems the whales face.
From the animal rights and conservation perspectives, the ideal
solution to the various issues surrounding the public display industry
would be to completely eliminate marine mammal captivity.
230
Despite
the increased publicity and awareness resulting from the OSHA/SeaWorld
case, we are many years away from dispensing with orca whale captivity.
Therefore, the government, marine parks, and the public should come
together to create a common goal that does not sweep the harm to orca
whales and the real environmental damage that we are allowing under the
224. Dan O’Dell, Marine Zoological Parks: The Public Benefit, in GETTING TO KNOW THE
WHALES 120, 121 (Larry Wade ed., 1995).
225. See Rose et al., supra note 55, at 46.
226. Mike Lee, SeaWorld San Diego Suspends Shamu Show, S
AN DIEGO UNION-TRIBUNE (Feb.
24, 2010, 10:47 PM), http://www.utsandiego.com/news/2010/feb/24/seaworld-san-diego-suspends-
shamu-show-after/?print&page=all.
227. See Naomi Rose, Killer Controversy: Why Orcas Should No Longer Be Kept in Captivity,
H
UMANE SOCIETY INTERNATIONAL & THE HUMANE SOCIETY OF THE UNITED STATES 7, available at
http://www.hsi.org/assets/pdfs/orca_white_paper.pdf.
228. See W
ILLIAMS, supra note 94 (“The larger parks also claim to educate through the medium
of a wide variety of glossy brochures, educational packs for schoolchildren, ‘Killer Whale Fact
Sheets’ and other pamphlets. In these, as in the show commentaries, a highly selective view of orcas
is presented, carefully orchestrated to present the captive situation in the best possible light and deflect
any potential opposition.”).
229. 748 F.3d 1202 (2014).
230. See Dougherty, supra note 4, at 365.
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rug, but works to create a conservation-oriented plan to gradually phase
out keeping orca whales in captivity.
B. Blackfish Backlash: Public and Political Support for Orcas in
Captivity
Since the 2013 release of the CNN documentary Blackfish, captive
orca whales have become an extremely popular and newsworthy topic,
especially in the world of Hollywood. Within a few months of the film’s
release, numerous celebrated musicians cancelled performances at
SeaWorld Orlando due to the alleged mistreatment of the whales.
231
In
November 2012, fans starting posting petitions to change.org asking
musicians to cancel their SeaWorld performances.
232
The first of these
petitions specifically addressed the band Barenaked Ladies.
233
The band
chose to cancel their performance at the park, and by December 2014,
there were over 56,000 signatures asking other bands to cancel their
performances as well.
234
Pulin Modi, the senior campaign manager of
change.org told CBS News, “[T]his is a larger snowball effect where in
pop culture, SeaWorld has become a prime target for people who are
concerned about the treatment of animals.”
235
In addition to the Barenaked
Ladies, artists Martina McBride, Willie Nelson, and REO Speedwagon
also canceled performances in 2014 at SeaWorld Orlando.
236
Only two of
the originally scheduled musicians performed at SeaWorld Orlando in
2014.
237
During the last two years, public disdain toward SeaWorld did not
die down, and the backlash since Blackfish premiered in 2013 has earned
the name “the Blackfish effect.”
238
After SeaWorld’s CEO and president,
Jim Atchison, stepped down in December 2014, attendance to the
231. Musicians Cancel SeaWorld Concerts Over Alleged Whale Mistreatment, CBS NEWS
(Dec. 20, 2013, 12:04 PM), http://www.cbsnews.com/news/seaworld-buys-newspaper-ads-in-wake-
of-blackfish-backlash/.
232. Id.
233. Id.
234. Id.
235. Id.
236. Alex Sundby, SeaWorld Launches Ad Counterattack in Wake of Blackfish Backlash, CBS
NEWS (Dec. 20, 2013, 12:04 PM), http://www.cbsnews.com/news/seaworld-buys-newspaper-ads-in-
wake-of-blackfish-backlash/.
237. Id.
238. See Associated Press & Alexandra Klausner, The Blackfish effect: SeaWorld loses $25.4
million after documentary criticizing treatment of killer whales cuts park attendance,
D
AILYMAIL.COM, http://www.dailymail.co.uk/news/article-2971294/The-Blackfish-effect-
SeaWorld-loses-25-4-million-documentary-criticizing-company-s-treatment-killer-whales-lowers-
park-attendance.html (last updated Feb. 26, 2015).
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company’s eleven parks began to decline.
239
In August 2015, the
SeaWorld Entertainment Inc. Report reported suffering an eighty-four
percent drop in its net second-quarter income.
240
Further, on September
18, 2015, attorneys for SeaWorld Entertainment in San Diego, California
began opening statements to refute the four citations California’s division
of OSHA issued against the park that alleged inadequate protection for
employees who rode or swam on killer whales in a pool used for providing
medical attention and for employees who were in close quarters with killer
whales on “pool-side slide outs” where whales can briefly emerge from
the water.
241
The park’s training and safety protocol and procedures are
confidential, and SeaWorld reportedly is refusing to release them in light
of the new citations against them.
242
In addition to the general public’s reactions, the celebrity response to
SeaWorld’s treatment of captive whales introduces an interesting ethical
and legal question for our country: why is it that pop culture and
Hollywood is seemingly ahead of our current legislation concerning the
treatment of these animals? Blackfish’s release has shed light on what has
been occurring for years and years in our society, not only with
performance orca whales, but also with other exhibition mammals with
high intelligence levels, such as Asian elephants used in circuses. As
much as our society has attempted to understand animals, it is becoming
more and more apparent that we are behind. Our country’s legislation
needs to reflect the knowledge that scientists and researchers have gained
in order for the legal system to protect these animals in the ways the
Animal Welfare and Endangered Species Acts purport to.
C. Post-Blackfish Legislative Attempts to Quash Orca Captivity
In 2014, California Assembly member Richard Bloom proposed the
Orca Welfare and Safety Act,
243
which focused on ending orca captive
breeding performances.
244
Unfortunately, Bloom died in committee
239. See id.
240. SeaWorld Entertainment, Inc. Reports Second Quarter 2015 Results, PR N
EWSWIRE (Aug.
6, 2015), http://www.prnewswire.com/news-releases/seaworld-entertainment-inc-reports-second-
quarter-2015-results-300124561.html. “A fine of $25,770 was attached to the four state citations
against SeaWorld.” Id.
241. Morgan Lee, SeaWorld fights worker safety citations, T
HE SAN DIEGO UNION-TRIBUNE
(Sept. 18, 2015, 6:08 PM), http://www.sandiegouniontribune.com/news/2015/sep/18/seaworld-
fights-safety-citations/.
242. Id.
243. The Orca Welfare and Safety Act, A.B. 2140, 2013-2014 Reg. Sess. (Cal. 2014).
244. A.B. 2140. The Orca Welfare and Safety Act would have made it illegal to “hold in
captivity, or use a wild-caught or captive-bred orca for performance or entertainment purposes.” A.B.
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before A.B. 2140 could come to a vote, but it captured the attention of
animal rights activists, lobbyists, and the public display industry, and
Representative Adam Schiff modeled his own ORCA bill proposal after
Bloom’s efforts.
245
The language of Representative Schiff’s efforts
captures the importance a transitional, phase-out process that would
“giv[e] orca-holding facilities time to shift to a more humane future.”
246
Only three days after Schiff introduced the ORCA bill, SeaWorld made a
statement on November 9, 2015, that the park was going to gradually
curtail its traditional Shamu show in San Diego and replace it with one
that focuses on “orcas’ natural behaviors in the wild.”
247
SeaWorld stated that 2016 will be the last year for theatrical
performances and that in 2017, they will introduce a “new orca experience
designed to take place in a more natural setting.”
248
SeaWorld’s CEO, Joel
Manby, did admit that the San Diego park specifically hasn’t had “good
attraction” lately, especially with the state and federal movements to end
orca captivity.
249
Manby went on to say, “[W]ith the regulatory
environment out there with orcas and what’s happened in California with
the reputation, we’d be foolish if we didn’t look at options.”
250
This orca
phase-out only applies to the San Diego park right now, and both Orlando
and San Antonio have not clarified whether or not they plan on following
San Diego’s lead.
251
Although this is a long-awaited step for SeaWorld to
phase out their orca trick shows, captivity is the true issue that continues
to deny these whales the freedom and natural habitat they need and
deserve.
252
The MMPA’s provisions do not allow for a complete ban of
orca whale captivity, which is why it is so detrimental that we adopt the
ORCA Act so that we can begin the reintroduction and rehabilitation
processes for the whales in the healthiest way possible.
For captive killer whales, the MMPA’s most severe shortcomings
2140.
245. Taylor Hill, Can the ORCA Act Shut Down SeaWorld?, T
AKEPART (Nov. 6, 2015),
http://www.takepart.com/article/2015/11/06/captive-orca-legislation.
246. Id.
247. Lori Weisberg & Jennifer Van Grove, SeaWorld to end theatrical killer whale show, T
HE
SAN DIEGO UNION TRIBUNE, http://www.sandiegouniontribune.com/news/2015/nov/09/seaworld-
san-diego-phase-out-killer-whale-show (last updated Nov. 9, 2015, 7:11 PM).
248. Id.
249. Id.
250. Id. Manby continued, “We’re not comfortable putting $100 million into a market when
there are regulatory questions. Until that whole issue settles, we’ll make a decision at that time.” In
response to the new orca attraction resulting in a temporary halt of a project aimed to spend over $100
million to double the amount of orcas in SeaWorld San Diego’s tanks. Id.
251. See id.
252. See id.
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surround its industry-controlled standards that allow public-display
organizations like SeaWorld to self-regulate the compiled standards of
conservation and education without enough oversight to ensure their
compliance with the MMPA’s purported goals.
253
The MMPA is
essentially allowing the public display industry to identify the appropriate
standards for scientific research and educational permits to be issued. This
defeats the purpose of having scientific or educational permit
requirements because the industry is able to tailor requirements to fit their
needs. The ORCA bill offers these amazing mammals the federal
protection they so desperately deserve.
V.
CONCLUSION
The past several years have mobilized public support in favor of the
humane treatment of marine mammals. Although the importance of killer
whales to our aquatic ecosystems and our environment has been well
established, the 2013 release of the documentary Blackfish has publicized
SeaWorld’s mistreatment of its captive whales. Currently, our animal
laws fail to adequately protect these beloved mammals. Specifically, the
MMPA contains expansive loopholes that allow the public display
industry to effectively regulate itself. It is crucial that we take action to
implement an act like ORCA that will gradually phase out orca whale
captivity safely with a focus on the well-being of these creatures, and also
prohibit their future exploitation.
253. See Dougherty, supra note 4, at 365.
30
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