james - orcas

WHAT TO DO ABOUT SHAMU:

Searching for a Cause of Action for Captive Orcas

By Jenni James

Animal Law

Professor Pamela Hart

Spring 2011

September 26, 2011

J. James, Page 1 of 32

I. INTRODUCTION Half of the world’s forty-two captive orcas (Orcinus orca), or killer whales, are held in

American aquariums.1 These forty-two living cetaceans make up less than sixteen percent of the total number of orcas consumed by the captive display industry.2 Since the first captive orca, Wanda, died on November 20, 1961, just two days after she was removed from the Pacific Ocean,3 103 others have shared her fate.4 On average they lived fewer than six years in captivity.5 At least thirteen more died during capture operations.6

Captive breeding has reduced, but not eliminated, the hunt for wild orcas. Breeding programs, however, are equally wasteful. Of the eighty captive-born orcas that have died, most lived only days.7 Another twenty-eight perished before birth.8 Although most captive orcas die before reaching their early twenties, others have defied the odds.9 The oldest orca in captivity, Lolita, was separated from her family in 1970.10 Only one orca has been held longer. Corky has been in captivity since 1969.11

It is both remarkable and tragic that Lolita and Corky have tolerated captivity for so long. Confinement renders the life of a captive orca “a grotesque parody of its wild counterpart.”12 In place of strong family bonds, captive orcas negotiate complicated relationships with hostile roommates.13 Instead of live prey, they eat dead fish.14 Sonar, which orcas use to hunt, navigate, and communicate, is virtually useless in the stark environment of an aquarium tank.15 Ultimately, tank size may be the biggest stressor. Capable of travelling up to 100 miles a day, captive orcas may legally be kept in pools that are only forty-eight feet wide.16 Although they can dive to depths of 100 feet, captive orcas may live in pools that are merely twelve feet deep – half the length of a typical orca.17 In comparison, the average display pool is generous. Most orcas provide slightly less than twenty-eight feet of water.18

Captive breeding creates additional suffering. Pregnancy is induced prematurely.19 Mothers are systematically separated from their calves.20 Miscarriages and stillbirths are common.21 Some of these may be the result of inbreeding.22 To address this problem, breeders pair orcas from genetically and geographically distinct populations, creating “hybrid” animals from Pacific and Atlantic stocks.23 Males, which are on short supply, are frequently transferred on “breeding loan” to parks that are hundreds or thousands of miles away.24 Even so, wild captures remain necessary to refresh the captive gene pool.25

For orcas like Lolita and Corky, there are few options. There are no marine mammal sanctuaries, no retirement homes. Release is complicated, expensive, and risky.26 Although captive orcas can be taught to forage and trained to swim long distances, survival in the wild ultimately requires the support of a family, or pod. Captive-born orcas have no ties to their wild relatives. Wild-caught orcas are frequently rendered anonymous by their capture, making reunification impossible. Keiko, the only orca released after decades in captivity, died of pneumonia three years after being reintroduced to his native waters.27 Although he interacted with orcas that were at least partially related to him, he sought out human companionship and never integrated into a wild pod.28

Many, including Jean-Michel Cousteau, consider Keiko’s release unsuccessful, in part because of this failure to achieve social acceptance.29 Because her pedigree is well known, Lolita my face better odds of reintegration. She hails from one of the most studied pods in the world.30 Corky’s pod is also widely studied, but it is significantly depleted.31 Both Corky and Lolita recognize and continue to use vocalizations unique to their sub pods.32 Corky’s mother, however, is believed to be dead, while Lolita’s may still be alive.33 Since orca societies are


matriarchal, this difference may prove critical.34 Although activists have crafted a plan to return Lolita to the wild, her story reveals a simple truth.35 Lolita’s profitability precludes her release.36

Orcas will remain in captivity as long as their confinement is both lucrative and legal. This paper explores the laws that govern and support the acquisition and confinement of orcas in America. Part II introduces the Marine Mammal Protection Act of 1972 (“MMPA”).37 Part III examines the failure of the MMPA to protect captive orcas. Part IV briefly considers the relevance of the Endangered Species Act of 1973 (“ESA”)38 and the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”).39 Part V looks at the Animal Welfare Act (“AWA”),40 which regulates the conditions of orca confinement. Part VI concludes, identifying potential legal remedies available to captive orcas generally and Lolita specifically, and suggesting other avenues of relief.

II. THE MARINE MAMMAL PROTECTION ACT OF 1972

The display of orcas began, necessarily, with predation upon wild stocks. The first orca captured was a juvenile swimming alone – a rare practice for these highly social animals.41 More commonly, large groups – sometimes entire pods – would be herded into a cove, allowing collectors to identify and remove the heartiest and most marketable animals.42 Although larger animals were sometimes physically able to escape, they were generally unwilling to abandon their pods.43 Some would drown, entangled in the nets that separated them from their family members.44 Attempts to conceal the deaths of four calves lost during a massive capture in Penn Cove, Washington, were notoriously unsuccessful.45 Their bodies, slit open and weighed down with chains, washed ashore a few months later.46 Lolita was one of seven young orcas taken into captivity after this operation.47 A. Legislating Orca Acquisition

Americans responded to the large-scale capture of domestic orcas in the 1960s with outrage and legislation. Washington State, whose resident orcas were especially accessible targets, began requiring permits and oversight in 1971.48 Congress followed suit in 1972, when it passed the Marine Mammal Protection Act (“MMPA”).49 The MMPA prohibits “taking” marine mammals,50 which includes “harass[ing], hunt[ing], captur[ing], or kill[ing], or attempting[ing] to harass, hunt, capture, or kill any marine mammal.”51 Although the MMPA was motivated mainly by the long-term loss of dolphins to the tuna industry,52 the moratorium on the “taking and importation” applied to marine mammals across the board.53

This moratorium is not absolute. The MMPA allows the National Marine Fisheries Service (“NMFS”), a division of the National Oceanic and Atmospheric Administration (“NOAA”), to permit the take or importation of marine mammals for “purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock.”54 (Emphasis added.) NMFS should only issue permits for takes that are “consistent with the purposes and policies” of the Act.55 Although Congress stated that “marine mammals . . . should be protected” and “the primary objective of their management should be to maintain the health and stability of the marine ecosystem,” they also found that marine mammals were “resources of great international significance,” in part because of their “recreational” and “economic” value.56 (Emphasis added.) The orca display industry is arguably recreational and undeniably lucrative. Thus, the trade in captive orcas is effectively limited only by agency discretion. This discretion consistently favors captive display. In fact, NMFS has never declined an orca import permit.57


There are, of course, administrative requirements that an applicant must fulfill to receive or retain a permit to display marine mammals. For example, the MMPA requires permit holders to provide basic information about the birth or acquisition and death or disposition of all marine mammals held in captivity under their display permit.58 The Secretary of Commerce must then “establish and maintain an inventory of all marine mammals possessed pursuant to” these display permits.59 This inventory should also contain information on all captive-born progeny.60 Critics argue that this inventory is inadequate and incomplete.61 Others disagree.62 Although the evidence is damning,63 the remedy is unclear. The Secretary may revoke permits for failure to comply with the terms and conditions of the permit,64 but the mandate to maintain the inventory falls squarely on the Secretary.65 The inventory’s current disarray strongly suggests that permit holders have been violating the terms of the MMPA, but it only definitively establishes that the Secretary has failed to meet his statutory duty. B. Litigating Orca Acquisition

While the MMPA does little more than facilitate the orderly display of captive cetaceans, public pressure and litigation have curtailed the acquisition of domestic orcas. The last capture operation in Washington waters occurred in February 1976. Under contract with SeaWorld, which currently owns nineteen of America’s captive orcas,66 collectors used seal bombs and aircraft to drive six frightened orcas into Budd Inlet off the Puget Sound.67 Ralph Munro, who was serving as the Natural Resources Aide to the State Governor, witnessed the event while sailing.68 He likened the capture to a war, calling it “one of the most gruesome things” he had ever seen.69

The seal bombs and aircraft were flagrant permit violations that prompted the state to trade its regulatory scheme for an outright ban.70 SeaWorld ultimately limited its exposure by settling the subsequent lawsuit out of court.71 In exchange, SeaWorld released the two orcas that had been retained for captivity and agreed to stop capturing orcas in Washington waters.72 In August 1976, SeaWorld asked NMFS to modify an existing take permit to authorize the capture or purchase of foreign orcas, tacitly acknowledging that the majority of American orcas were now out of reach.73

Although Washington waters were now off limits, SeaWorld had not totally abandoned its efforts to collect domestic orcas. In 1983, SeaWorld secured a five-year permit to capture up to 100 Alaskan orcas, removing up to ten for permanent display.74 These plans were stymied when the Ninth Circuit, in Jones v. Gordon, found that NMFS failed to adequately explain why it did not prepare an Environmental Impact Statement (“EIS”) before issuing SeaWorld’s permit.75 The lower court held that an EIS was required under the National Environmental Policy Act (“NEPA”).76 SeaWorld argued that variations in the timelines set forth by NEPA and the MMPA left the statutes irreconcilably conflicted, and thus the MMPA should control.77

Although the Ninth Circuit found SeaWorld’s argument “plausible,” they ultimately decided that Congress intended the two statutes to operate in harmony and therefore the NEPA requirements could not be summarily discarded.78 The Ninth Court then held that because the capture operation was controversial, and this “public controversy [was] based on potential environmental consequences,” an EIS might be required in accordance with regulations promulgated by NMFS.79 However, leaving room for agency discretion, the court stopped shy of finding that an EIS was definitively required.80 An explanation, not an assessment, was all the court desired.


III. PROBLEMS WITH THE MARINE MAMMAL PROTECTION ACT

Because the MMPA expressly allows the capture and display of marine mammals, it is not surprising that litigators have relied on state and environmental laws to find relief for wild orcas. An imperfect shield at best, the MMPA has been rendered even less effective by industry concessions, legislative amendments, and market incentives. A. The “Pre-Act” Exemption

According to its plain language, the MMPA does “not apply to any marine mammal taken before the effective date of this Act.”81 This exemption, presumably a concession made to the blossoming display industry, was initially quite significant, but has become almost meaningless over time. There are only two surviving “pre-Act” orcas in captivity. Lolita and Corky were both captured before the MMPA took effect on December 21, 1972.82

Some have interpreted this “pre-Act” exemption to include the captive-born offspring, or “pre-Act progeny,” of the departed “pre-Act” animals.83 Proponents of this view argue that the MMPA is triggered only upon “taking” an orca from the wild. By this logic, all captive-born orcas would be relegated to “pre-Act” status.84 Since two-thirds of orcas currently on display were born in captivity, this broad reading would eviscerate the MMPA.85

In 1993, NMFS clarified that it does not share this expansive interpretation of the “pre-Act” exemption.86 This clarification was part of a proposal to amend the regulatory scheme governing the issuance of take permits for marine mammals destined for scientific research, enhancement, or public display.87 “[I]ntended to provide a comprehensive regulatory foundation . . . and to make administration of the NMFS program more efficient, consistent, and predictable,” these amendments were answered by vigorous lobbying that culminated in the 1994 amendments to the MMPA.88 B. The 1994 Amendments

Although NMFS hoped to “provide a comprehensive regulatory foundation,” Congress opted to “streamline” the regulation of the MMPA when it substantially revised the statute in 1994.89 This “streamlining” was primarily accomplished by eliminating much of the oversight provided by NMFS and replacing it with the cursory review of the Animal Plant and Health Inspection Service (“APHIS”), a division of the United States Department of Agriculture (“UDSA”).90 The impact of this change is discussed in Section V, infra. First, the 1994 amendments are considered alongside some of the proposed regulatory revisions, which are contrasted with the agency’s final rule that was issued in 1996.91

1. “Take” and “Harass” Many of the proposed regulatory changes operated on 50 C.F.R. § 216.3, which defines

the terms used in the regulation of taking and importing marine mammals. In part to eliminate the “pre-Act progeny” confusion, NMFS hoped to enhance the regulatory definition of “take” to include “holding a marine mammal captive.”92 This additional phrase would ensure that all captive-born orcas would be “taken” at birth and would secure the agency’s jurisdiction over the conditions of captivity generally.93 Although this clarification was apparently consistent with regulations dating back to the original version of the MMPA, NMFS noted that the “immediate consequence of this determination” would be that all “captive holding, transport/transfer, purchase or sale activities, or other disposition of marine mammals for purposes of public display” would now be subject to the permitting process.94 Previously these activities were


managed with less formal methods of authorization.95 NMFS was careful to note, however, that separate permits would not be required for transports made between two permit holders.96

This change was not included in the final rule.97 However, the “pre-Act progeny” issue is addressed, if not resolved, in a footnote to 50 C.F.R. § 216.25(a)(1).98 This footnote, of course, does not trigger the enhanced permitting requirements imagined by NMFS in 1993. Although NMFS frequently referenced the 1994 statutory amendments to explain changes between the proposed and the final rules, NMFS offered no explanation here. The 1994 amendments do not address the “pre-Act” exemption and revisions to the moratorium on taking marine mammals did not contemplate on-going captivity as a form of take.99 Presumably some other factor, perhaps industry pressure, influenced this omission from the final rule.

Similarly, NMFS hoped to add a definition for “harass,” which would include “an intentional or negligent act or omission that results in, or is likely to result in, an injury to a marine mammal, a disruption in [its] behavior . . ., or a significant effect on [its] normal behavioral patterns.”100 Since captivity significantly affects the normal behavioral patterns of marine mammals, this provision would have underscored NMFS’ position that captivity is a take under the MMPA. Here the 1994 amendments to the MMPA were not silent. Congress defined and even delineated two different levels of harassment.101 Because the 1994 amendments “statutorily defin[ed] the term harassment,” this provision was eliminated from the final rule.102

2. Special Exception Permits and Captive Maintenance Requirements One particularly significant revision would have altered the requirements for the “captive

maintenance” of marine mammals held under “special exception permits.” Special exception permits include permits issued for import, export, scientific research, enhancement purposes,103 and public display.104 The proposed change mandated that marine mammals subject to special exception permits should:

be held with other marine mammals of the same species in a manner and composition that in number, sexual ratio, and age structure provides the closest practicable approximation of the known fundamental social unit found in the wild.105

Exceptions were available when necessary to preserve the health of the animal, to fulfill the purposes of scientific research or enhancement, or to accommodate “limitations of the [holding] facility.”106 These exceptions, however, were subject to agency discretion.107

Although this provision might have been manageable for keepers of pinnipeds and smaller cetaceans, it could have devastated the captive orca industry. Creating artificial pods would be prohibitively expensive. Space would certainly be an issue. Ironically, this requirement might have even increased the demand for wild capture, as aquariums would theoretically need to acquire more animals to replicate the complexity of a pod. Alternatively, this requirement may have been used to justify captures that were otherwise motivated by captive breeding needs. Surely NMFS would have used its discretion to grant exceptions to prevent the collapse or expansion of the industry.

While it could have been used as a front for acquisition, this provision was probably intended to address extreme cases of isolation like Lolita’s. Lolita has not lived with another orca since her tank-mate, Hugo, died in 1980.108 Only one other orca lives alone in America.109 Shouka, the first surviving orca born in captivity in Europe, has lived alone since Six Flags acquired her in 2002.110


NMFS did not explain specifically why this captive maintenance provision was absent from the final rule. NMFS stated simply, “substantial changes to the public display provisions of the [MMPA] eliminat[ed] the basis for many of the provisions that had been included in the proposed rule.”111 These changes, however, did not address social groupings and the phrase “captive maintenance” appears nowhere in the 1994 MMPA amendments. The agency went on to assert that the elimination of the “non-statutory general permit conditions and reporting requirements . . . provides NMFS with greater flexibility . . . to incorporate only those conditions and requirements that are appropriate to the permit.”112 However, because NMFS originally suggested it was appropriate to house all captive marine mammals in a manner approximating social conditions found in the wild, it is not unreasonable to view this newfound “flexibility” as a windfall for the display industry.

NMFS did directly acknowledge that Congress reduced its authority over captive marine mammals when it explained why the final rule no longer addressed interactive “swim with the dolphin” programs. NMFS stated flatly that because “[t]he 1994 Amendments eliminated MMPA’s jurisdiction over these public display captive care and maintenance issues,” it no longer needed to define “interactive program.”113 In the end, NMFS essentially abandoned the regulation of captive maintenance altogether. After the final regulations were reorganized, the subsection on public display was marked “reserved” and left blank.114

3. Education or Conservation Programs Another concession came when NMFS abandoned its attempt to breathe life into the

“education or conservation program” requirements mandated by the 1988 revisions to the MMPA.115 In 1988 Congress provided that:

A permit may be issued for public display purposes only to an applicant which offers a program for education or conservation purposes that, based on professionally recognized standards of the public display community, is acceptable to the Secretary [of Commerce] . . .116

(Emphasis added.) Five years later, the public display community had yet to define the standards of a proper program for education or conservation purposes.117 In response, the Secretary, through NMFS, proposed some basic requirements.

NMFS required only that the programs “effectively convey accurate, [current, and understandable] information about marine mammals and their role in the marine ecosystem.”118 NMFS encouraged display facilities to “foster positive attitudes toward the marine mammals being displayed” through programs that would “improve public . . . support for [the] protection and conservation of marine mammals in the wild and the marine ecosystem of which they are a part.”119 Specifically, the proposed regulations would have considered:

Whether the basic messages and purposes of the [education or conservation] program are consistent with the policies and objectives of the MMPA, [and] whether they include accurate information about the life history, behavior, sensory capabilities, conservation or other aspects of marine mammals, such as their role in the marine ecosystem.120


Critics of this modest proposal claimed it violated the First Amendment.121 Ultimately, this provision was removed from the final rule because the 1994 amendments eliminated the reference to the Secretary’s “acceptance” of the education or conservation program.122 The Secretary now merely “determines” whether a program is “based on professionally recognized standards of the public display community.”123

Opponents of the display community suggest that these standards are woefully low and that aquariums are anything but educational. The Association of Zoos and Aquariums (“AZA”) commissioned a study that is “widely heralded as the first direct evidence that visits to zoos and aquariums produce long-term positive effects on people’s attitudes toward other animals.”124 Yet authors of the study admit they found “no overall statistically significant change in understanding seen” in visitor knowledge of ecological concepts.125 While the authors attribute this result to the pre-existing “broad range of knowledge” visitors have before entering zoos and aquariums,126 this assumption went untested.127 Critics of the study suggest that viewing animals in captivity might in fact worsen attitudes about education and conservation in visitors who “view animals as objects of entertainment rather than conservation.”128 Granted, this alternate view is equally untested.

The academic analysis of the AZA study is more valuable for exposing seven “major threats to [the] validity” of the methodology used in the study.129 The AZA study is invalid in part because it used nonrandom sampling techniques and it failed to “take into account the fact that the experience [examined] may [have] include[d] more than one component that affect[ed] the outcome.”130 Despite these basic shortcomings, the AZA study carries great weight because the AZA is part of the “public display community” that defines the parameters of a proper education or conservation program.

The content of these programs may not matter so much in the end. A study of visitors to the Reptile House in the National Zoo, Washington, D.C., revealed that the average time spent in front of each enclosure was twenty-six seconds.131 Assuming aquariums are like zoos, this brief period is scarcely long enough to convey any significant educational or conservation information. Shamu132 shows, of course, captivate audiences for longer periods of time – minutes as opposed to seconds. However, given such great statutory discretion, it is unlikely that SeaWorld will ever choose to use this platform to educate visitors about the ugly realities of orca capture and confinement.

4. Private Ownership and APHIS Oversight Whether or not NMFS can compel aquariums to fulfill the 1988 mandate to promote

education or conservation is a minor concern compared to two significant changes made to the MMPA in 1994. The first of these amendments added a provision, 16 U.S.C. § 1374(c)(2)(B), to the section regarding permits issued for public display, which states:

A permit under this paragraph shall grant to the person to which it is issued the right, without obtaining any additional permit or authorization under this chapter, to –

(i) take, import, purchase, offer to purchase, possess, or transport the marine mammal that is subject to the permit; and


(ii) sell, export, or otherwise transfer possession of the marine mammal, or offer to sell, export, or otherwise transfer possession of the marine mammal --133

(Emphasis added.) Although aquarium owners had previously paid for the acquisition of captive orcas, the MMPA had never before explicitly acknowledged the property rights that flowed from these purchases.134 One critic condemned this new provision, asserting that “captive orcas . . . were previously the property of the American people” and they had “now [become] the property of the marine parks.”135 This characterization may be overstated, as the common law surely protected the property rights of aquarium owners long before this statutory amendment.

More importantly, this new provision made it clear that NMFS does not have the authority to issue permits for the transfer or sale of captive orcas. While NMFS had envisioned increasing their oversight of orcas in captivity, Congress clearly asked NMFS to step aside. Whether this provision should properly be considered “streamlining” or “jurisdiction stripping” may depend largely on the audience. The fact that it is industry friendly is fairly obvious.

Congress further reduced NMFS’ jurisdiction when it referenced the Animal Welfare Act in 16 U.S.C. § 1374(c)(2)(A). After 1994, the MMPA required public display permit holders to be “registered or hold[] a license issued under 7 U.S.C. §§ 2131 et seq.,” the AWA.136 Previously NMFS had recognized compliance with AWA standards as evidence that a permit holder complied with the captive maintenance standards set forth by NMFS.137 A strict licensing requirement, however, was absent.138

Congress overtly stripped NMFS’ jurisdiction when it added 16 U.S.C. § 1374(c)(2)(D). This provision requires both the Secretary of Commerce and the Secretary of Agriculture to find that a person holding a public display permit has failed to meet the permitting requirements before the permit can be revoked.139 Previously NMFS alone held this power.140

On their surface, these changes might suggest that the 1994 Congress was more protective of marine mammals. They were, after all, adding a layer of oversight. However, critics correctly note that “APHIS is widely regarded as being a more permissive, less effective agency, with a reputation for being more ‘industry friendly.’”141 Section V will explain in greater detail how the AWA is both outdated and under-enforced.142 C. Market Incentives

While the MMPA grants the display industry considerable authority – in structuring education and conservation programs and in transferring orcas between facilities – the industry also purportedly engages in self-regulation. Through the AZA and the Alliance of Marine Mammal Parks and Aquariums (AMMPA), aquariums voluntarily impose and accept higher standards of animal care than are required by law.143 Although this additional regulation is theoretically admirable, in practice these groups have little incentive to raise their standards to truly acceptable levels of care.

Larger parks, like SeaWorld, tolerate and even support substandard aquariums in other countries.144 These aquariums serve as interim holding facilities for wild orcas acquired from foreign waters. After an appropriate transition period, these wild orcas, and their precious genetic diversity, can be imported into American parks as “captive” specimen. This process of “orca laundering” helps SeaWorld avoid the taint associated with wild capture.145 Instead, SeaWorld plays the hero, “rescuing” foreign orcas from tiny tanks and refreshing its captive gene


pool at the same time. SeaWorld does not hide the fact that it imports orcas for captive breeding. What it does not disclose is that no foreign orca has ever been returned after a “breeding loan.”146

One orca that is currently being “laundered” is Morgan, a wild juvenile that was captured in the Netherlands in June 2010.147 Morgan, like Wanda, was likely ill when she was found swimming alone.148 The Dutch government permitted her capture on the condition that she would be rehabilitated and released to the wild.149 A year later, activists are fighting for her freedom as the staff of the Dolfinarium Harderwijk, where she is being held in an undersized tank, has deemed her unreleasable.150 The Dofinarium wants to transfer Morgan to Loro Parque, a larger facility off the coast Spain.151 Loro Parque has a cozy relationship with SeaWorld, and many people believe that Morgan’s move would be a prelude to a transatlantic trip to America.152

IV. REGULATION OF ENDANGERED SPECIES

Ironically, while Corky and Lolita are the only captive orcas in America that do not enjoy even token protection under the Marine Mammal Protection Act, Lolita may be the only orca eligible for protection under the Endangered Species Act of 1973 (“ESA”).153 This section will briefly explain how the ESA relates, or rather does not relate, to captive orcas. It will also consider the protection of orcas under the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”).154 A. The Endangered Species Act of 1973

The ESA and the MMPA share a number of characteristics. Like the MMPA, the ESA prohibits “taking” protected species.155 Like the MMPA, the ESA allows for permits to be issued to “take” otherwise protected species under select circumstances.156 Like the MMPA, the ESA provides a “pre-Act” exemption. In the case of the ESA, this exemption applies to animals held in captivity prior to December 28, 1973, when the ESA was enacted, and those in captivity on or before publication of the final regulation listing their species as endangered.157

While the MMPA “pre-Act” provision is a blanket exemption, the ESA equivalent nullifies only two particular prohibitions. Specifically, “pre-Act” animals may be imported or exported and they are not protected by regulations promulgated under 16 U.S.C. § 1533.158 Significantly, captive “pre-Act” animals from endangered species are protected from all other forms of take. This position was recently clarified in The American Society for the Prevention of Cruelty to Animals vs. Feld Entertainment, Inc.159 The District Court for the District of Columbia, citing an earlier decision from the same court, confirmed that “the “pre-Act” exemption did not apply to the “take” prohibition.”160

The ESA and the MMPA vary most significantly on another point. Unlike the MMPA, the ESA does not apply to captive orcas. Quite simply, the ESA fails to protect captive orcas because they are not endangered. One exception may exist. In 2005, NMFS added the Southern Resident population of orcas to the endangered species list.161 Before she was captured, Lolita was a member of this Southern Resident community.162 Of the forty-five Southern Residents taken into captivity, Lolita is the only one still living.163

Although Lolita is genetically a Southern Resident, she does not share their protection under the ESA. NMFS defined the Southern Resident population narrowly, excluding “killer whales from J, K or L pod placed in captivity prior to listing.”164 This listing was published four years before the ASPCA vs. Feld ruling clarified that the ESA “take” prohibition applies to “pre-Act” animals. Prior to this ruling, it is possible, if not likely, that NMFS understood the


ESA to require the total exclusion of all “pre-Act” animals. In fact, NMFS used language that seems more perfunctory than purposeful. The exclusion contemplates the existence of multiple animals, though only one qualifying orca survived. If NMFS narrowed the definition of Southern Resident based on a misinterpretation of the ESA, Lolita’s categorical exclusion may have been made in error. The limited scope of the ESA’s “pre-Act” exemption implies that Congress recognized that animals remain part of their species despite their captivity. Accordingly, Lolita should properly be considered part of the Southern Resident killer whales.

Curiously, NMFS also excluded the “captive born progeny” of Southern Residents from protection under the ESA.165 This position is in tension with NMFS’ position that “pre-Act progeny” should receive protection under the MMPA. Of course, the MMPA and the EPA are different statutes. To support its claim of jurisdiction over captive-born marine mammals, NMFS pointed to provisions of the MMPA that would be frustrated by a broad interpretation of the “pre-Act” exemption.166 Similar logic could be applied to the ESA. Congress prohibited taking captive members of endangered species. Excluding captive descendents from protection undermines Congress’ intention to protect these animals.

Although a court might find this argument appealing, it may ultimately be irrelevant. A review of the matrilineage of the currently living captive-born orcas reveals that none is definitively descended from a Southern Resident.167 However, there are a number of male Southern Residents that may have fathered successful calves. These descendents, should they exist, would be genetic “hybrids,” which might prevent them from being recognized as protected Southern Residents. Their mixed heritage would certainly be a barrier to their release. They would have no ties to a wild pod and their genetic diversity could dilute the Southern Resident line. It is virtually guaranteed that these captive-born descendents would remain on display even if they were brought under the umbrella of the ESA. However, recognition of their endangered status could potentially improve the conditions of their captivity, as their captors would have to apply for conditional take permits under the ESA.

Of course, the most valuable protection available under the ESA is the citizen suit provision.168 This provision allows anyone to sue for violations of the ESA. Litigants still need to establish the usual elements of standing. They have to show an “injury in fact,” which could be merely aesthetic,169 but which must be imminent and actual.170 They have to show causation and redressability.171 They do not, however, have to show that they fall within the “zone of interest” of the statute,172 because the citizen suit provision eliminates this hurdle.173 This makes the ESA a powerful tool for animal advocates. Whether or not this tool is available to assist captive orcas remains to be seen. B. The Convention on International Trade of Endangered Species

Although orcas are not endangered, they are covered under a multilateral agreement designed to control the trade of endangered species. In 1973, member nations, including the United States, agreed to abide by the Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”).174 Under CITES, protected species are listed in one of three appendices. Animals listed under Appendix III receive minimal protection, as this appendix applies only to species that are not categorically threatened.175 Species are added to Appendix III at the request of member nations and these requests may be withdrawn at any time.176

Appendix I is the most protective, as it applies to species that are “threatened with extinction.”177 Trade in Appendix I species is allowed only under exceptional circumstances and


requires both an export and import permit.178 Marine mammals and other “specimen” of the sea listed under Appendix I may “not be used for primarily commercial purposes.”179

Orcas are listed under Appendix II.180 Thus they are not subject to this commercial purposes restriction and they may be traded with only an export permit.181 Trade of Appendix II species is allowed unless it is “detrimental to the survival of that species,” or the animal was “obtained in contravention of the laws” of the exporting state.182

Under CITES, captive-born animals are treated differently than wild members of the same species. Specifically, captive-bred animals from any appendix may be exported without a permit.183 Further, animals “bred in captivity for commercial purposes” that would otherwise be listed under Appendix I are “deemed to be specimens of species included in Appendix II.”184 Of course, because orcas are already listed under Appendix II and marine mammals listed under Appendix I may not be used for commercial purposes, this provision has no effect on captive orcas. The export permit exemption, in contrast, clearly facilitates captive breeding and display.

The parties to CITES further encouraged captive breeding when they resolved that wild animals could occasionally be collected to refresh captive gene pools.185 In their resolution, they conceded that this practice “may be detrimental to the survival of wild populations.”186 Because animals listed under Appendix II should not be traded if trade is “detrimental to the survival of the species,” this resolution seems to be in tension with the text of CITES.187 Of course, an event can have a detrimental impact on a wild population without threatening the survival of the entire species. Thus, the text is unlikely to trump the resolution.

No matter which appendix they are listed under, all animals traded under CITES must be shipped humanely.188 Specifically, shipments must “minimize the risk of injury, damage to health or cruel treatment” of protected animals.189 Orca transportation is common. More than half of the orcas taken into captivity have journeyed over 2,000 miles by air.190 One orca’s flight lasted sixty-eight hours.191 Another logged over 12,000 miles during his four years in captivity.192 Some die during or shortly after transport.193 SeaWorld even allows the transfer of orcas that are up to nine months pregnant.194 Ultimately, it is unclear whether or not the Permanent Court of Arbitration at the Hague, the designated arbiter of disputes under CITES, would deem these shipments “cruel” or “damaging.”195 The fact that the treaty anticipates and allows the export of orcas suggests that only extreme cases – perhaps involving pregnancy or delay – would be remedied under CITES.

V. THE ANIMAL WELFARE ACT

While the MMPA, CITES, and the ESA each provide at most only minimal protection to captive orcas, the Animal Welfare Act (“AWA”) is in many ways overtly harmful.196 The AWA, which was originally drafted to address the sale, transportation, and handling of animals used in laboratories,197 is both outdated and under-enforced.198 Although Congress passed the AWA to “insure that animals intended for use . . . for exhibition purposes” would be “provided humane care and treatment,”199 subsequent lawmakers have only revisited the AWA to weaken it.200

1. Housing requirements The AWA requires the USDA to issue licenses to exhibitors that demonstrate compliance

with the standards promulgated under 7 U.S.C. § 2143.201 This section provides that regulations shall be issued “to govern the humane handling, care, treatment and transportation of animals . . . by exhibitors.”202 These regulations must include “minimum requirements” for “handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and


temperature” as well as “separation by species where the Secretary finds necessary for the humane handling, care, or treatment.”203

These regulations establish that the “primary enclosure shall not contain water which would be detrimental to the health of the marine mammal contained therein.”204 Another requires “natural or artificial shelter” to protect “marine mammals kept outdoors” from the weather and direct sunlight.205 Other regulations are simply calculations that determine minimum pool dimensions. These have not been updated since they were promulgated in 1979.206 Thus, under the AWA, orcas may be kept in pools that are half as deep as an orca is long, and only twice as wide as the orca’s length.207

In 2001, the USDA made token changes to the regulations governing the space provided to captive marine mammals. The USDA clarified that rotating cetaceans through non-conforming enclosures did not satisfy the space requirements.208 This final rule also required written justification by a veterinarian to keep cetaceans in undersized pools for periods lasting longer than two weeks.209

2. Separation The regulation promulgated to effectuate the separation provision requires that marine

mammals “must be housed . . . with at least one compatible animal of the same or biologically related species,” provided the animals are compatible.210 While display facilities may generally apply for a variance from the space requirements,211 this regulation provides that “[m]arine mammals that are separated for nonmedical purposes must be held in facilities that meet minimum space requirements as outlined in § 3.104.”212 (Emphasis added.)

This provision strongly implies that variances are simply not available for pools holding solitary animals, yet the agency retains significant discretion in determining which species are “biologically related.” For instance, APHIS does not consider Lolita to be a solitary orca because she shares her tank with dolphins. Although some wild orcas consider dolphins prey, not family, the species are both classified under the Delphinidae family.213 Because killer whales are technically dolphins, they can be forced to live their entire lives in captivity without the company of another orca.

3. Enforcement Although no orca in America is kept in a pool that is impermissibly shallow, many argue

that Lolita’s enclosure at the Miami Seaquarium fails to meet the horizontal measurement requirement.214 The USDA, through the Animal Plant and Health Inspection Service (“APHIS”) has alternately rebuffed or ignored these persistent complaints.215 Even if APHIS inspectors agree that Lolita’s enclosure is too small, regulations allow exhibitors to apply for a variance from “one or more specified provisions of § 3.104,” which sets forth the space requirements.216

The regulations establish, however, that the Deputy Administrator “shall deny” an application for “if he determines that it is not justified under the circumstances or that allowing it will be detrimental to the health and well-being of the marine mammals involved.”217 (Emphasis added.) Although this language is mandatory, the Deputy Administrator has wide latitude to find that a variance is justified under certain circumstances. When the agency began regulating “swim with the dolphins” programs in 1998, it took economic limitations into consideration as it dismissed alternative standards that would have allowed dolphins more space.218 It is likely, then, that the agency would consider the price tag of a tank expansion when it determined if a variance was “justified under the circumstances.”


Although the AWA requires the inspection of display facilities, these inspections are discretionary.219 Only research facilities are subject to annual inspection.220 Because the USDA only employs about 100 inspectors, the inspection of display facilities is surely not a priority.221 Inspectors of display facilities tend to be quite generous anyway. For example, despite documented deaths and even significant penile scarring, no facility has been cited under the regulation that prohibits housing incompatible animals together, causing “stress or discomfort [or] interfer[ing] with their good health.”222

Violators who fail to meet structural requirements, such as the one requiring adequate shade for cetaceans,223 are rarely subject to fines or permit revocation. Instead, they are given time to remedy the situation. On at least one occasion, subsequent inspections indicated compliance, though no structural changes had been made.224 In Lolita’s case, inspectors have found that the fleeting shade provided by stadium seating satisfies the regulatory mandate.225 This shade, of course, is nonexistent at high noon.

Although APHIS apparently seldom uses this power, it does have the authority to suspend display permits and assess civil penalties against violators of “any provision” of the AWA.226 Fines can be stiff, up to $10,000 per violation, with each day counting as an additional offense.227 Knowing violators could even face up to one year in jail.228 Perhaps, though, the most powerful provision is this:

Whenever the Secretary has reason to believe that any . . . exhibitor . . . is placing the health of any animal in serious danger in violation of [the AWA] or the regulations or standards promulgated thereunder, the Secretary shall notify the Attorney General, who may apply to the United States district court in which such . . . exhibitor . . . resides or conducts business for a temporary restraining order or injunction to prevent any such person from operating in violation of [the AWA].229

Although the Attorney General’s role is discretionary, the language referring to the Secretary’s duty is mandatory. In theory, the Secretary could be compelled to notify the Attorney General about egregious violations of the AWA. Of course, the Secretary retains discretion as he is presumably allowed great latitude to define what constitutes a “serious danger” to the health of a captive animal.

VI. CONCLUSION

Agency discretion, regulatory capture, and zealous lobbying have bolstered the health of the captive display industry. Few legal avenues are open to advocates who hope to better the lives of orcas in captivity. Some potential causes of action have been alluded to above. They will be summarized and analyzed below. A. Lolita

Just as many consider Lolita the best candidate for release, Lolita may also be the most sympathetic plaintiff in a suit challenging the captive orca industry. Although she lacks any protection under the MMPA, she has a number of other potential legal remedies worth exploring.


1. Under the AWA Lolita lives in the smallest orca tank in America. Although agency discretion is

powerful, APHIS has offered conflicting explanations to justify their continued acceptance of her tank size. Lolita’s pool is interrupted by a solid island, her trainers’ platform. APHIS inspectors initially claimed that they did not count the area beyond the obstruction when calculating the pool’s dimension.230 Later, a different inspector claimed the island is “floating” and therefore it is only a “partial obstruction.”231 This inconsistency, coupled with photos that prove the platform is solid, may be enough to establish that APHIS has been arbitrary and capricious. Alternatively, a petition for rulemaking could be filed, asking the USDA to modernize the regulations governing tank size. Ideally, these new regulations should exceed even the exaggerated measurement of Lolita’s pool.

Similar arguments can be made about the lack of shade over Lolita’s pool. The agency’s position, that the incidental and intermittent shade from the surrounding stadium is sufficient to protect her from the hot Miami sun, cannot be considered a permissible interpretation of the statute or the regulations. This “interpretation” is really an abrogation of the duty to protect captive marine mammals from “weather or from direct sunlight.”232 Further, Lolita is regularly exposed to hurricanes. The agency’s interpretation of the shade requirement could be challenged directly or a petition could be filed asking the USDA to improve the standards themselves.

A victory on either of these requirements would be most useful if it were coupled with recognition that Lolita’s dolphin tank-mates are not sufficiently “biologically related” to provide her the companionship required under the AWA. With this ruling, the Seaquarium would be unable to simply apply for a variance from the housing requirements. Without this finding, the Seaquarium would be able to plead that Lolita’s substandard confinement is necessary under the crowded circumstances of their aging park. They might have to provide her some shade, but they would not likely be required to expand her tank.

Another approach would be to explore a violation based on Miami Seaquarium’s use of natural water. This water was polluted by the BP oil spill of 2010, and the harmful dispersants that were deployed. Lolita’s owner, Andrew Hertz, certainly thinks Lolita’s health is at risk. He planned to file a claim of up to $5 million against BP so that he could upgrade his filtration system to protect Lolita.233 Although further research is required to determine whether or not Hertz filed this claim, it is unlikely he has upgraded his filtration system. Because the presence of dispersants in her water might qualify as a “significant” threat to her health and safety, the USDA could conceivably be compelled to notify the Attorney General of this violation. An injunction might prompt her transfer to a bigger park.

Although Hertz is a powerful member of the Miami community, the Miami Dade County board has already ruled that the Seaquarium may not build any more cetacean tanks.234 Thus, any action that results in a finding that Lolita requires a bigger tank will require her transfer to a different park. In fact, Hertz opted to use his last available space to build a “swim with the dolphins” encounter, though he was well aware of the controversy surrounding Lolita’s tank size.235 Should the Seaquarium ever be found in violation of the AWA, this choice might be characterized as a “knowing” violation, subject to criminal penalties. Of course, because the choice was made before the violations were acknowledged by the agency, this harsh measure is unlikely. However, Hertz is on record having committed to expand Lolita’s tank.236 This concession, followed by the development of the lucrative interactive program, may be enough to paint Hertz as a willing violator of the AWA. Alternatively, any pressure applied to the


interactive program may reduce the long-term viability of the Miami Seaquarium. Lolita may benefit indirectly from actions that free the dolphins from this program.

The biggest hurdle to bringing a claim under the AWA, of course, is a familiar one for animal advocates. Because the AWA does not provide a private cause of action, it may be difficult for an interested party to show injury sufficient to satisfy the standing requirements. Litigants brining an administrative challenge will find that the AWA is riddled with discretionary language. This may make it difficult to show that the agency was acting outside the bounds of the discretion granted by Congress.

2. Explore Local Violations Instead, the Miami Seaquarium’s biggest vulnerability may not lie under any law passed

to protect a marine mammal or other animal. The Seaquarium holds a number of local permits that are crucial to its operation. For example, it is permitted to release limited levels of waste materials when it changes Lolita’s water.

The Seaquarium is also held to the usual building codes. As recently as 2003, the Seaquarium was cited for 127 safety violations.237 Although these are presumably long since remedied, the aging Seaquarium is likely to struggle to keep up with the safety code. A stack of safety violations alone, however, will do little to stop the Seaquarium machine. At most, an investigation into safety violations would act as a thorn in the Seaquarium’s side.

Perhaps more importantly, the Seaquarium holds a permit to sell alcohol. In 2005 it was cited for selling alcohol to minors.238 This prior violation leaves the Seaquarium vulnerable to more significant sanctions, should it be found in violation again. Of course, like the safety violations, there is little to no room for private action here, and the Seaquarium has the power to prevent future violations. However, if Seaquarium were to ultimately lose its liquor license, its operation would be significantly less lucrative.

Finally, the Seaquarium does not own the land underneath its park. Pressure from or on Miami Dade County may prove more persuasive than any federal regulatory action. If the County could somehow be held liable for some of the Seaquarium’s violations, they may be more willing to negotiate a settlement that involves moving Lolita. 3. Challenge her Exclusion from the ESA

Finally, as noted above, Lolita may qualify for protection under the ESA. A first step would be to challenge the rule making that excluded her from this listing. If this action is successful, a claim could be brought directly against the Miami Seaquarium for “taking” her without a permit. This plan may ultimately be defeated by the plain language of the ESA’s “pre-Act” exemption. However, because the ESA applies at least in part to “pre-Act” animals, the argument that Lolita should be covered is worth testing. The advantage of using the ESA to address Lolita’s condition, besides the obvious citizen suit provision, is that success could ultimately lead to Lolita’s release. All other avenues of relief will generally result in her transfer to another park. Although the release of captive orcas is controversial, particularly after Keiko’s death, many consider Lolita releasable.239 If nothing else, her transition to partial freedom in a sea pen would provide a great opportunity to study her interaction with her former pod. Ideally, Lolita should be released while she is still fertile. Her body, which is less polluted than her pod-mates, might be able to bear the first of a new generation of healthier Southern Residents. On the other extreme, Lolita may die as Keiko did – after a few years of solitary ocean living. Many of her supporters consider this worst-case scenario superior to the alternative – another decade spent in captivity.


B. Other Orcas While other orcas do not have the option of seeking protection under the ESA – unless, of

course, a court accepts the strained argument that the hybrid progeny of Lolita’s male relatives should count as Southern Residents – they have a number of potential causes of action available to them. These include challenges under the MMPA, under CITES, and under other laws unrelated to animal welfare. Because most other captive orcas are not great candidates for release, the focus of legal action should be to improve living conditions and reduce captive breeding.

1. Challenges under the MMPA Since the 1994 amendments, most roads to remedy under the MMPA lead directly to the

AWA. One exception is the provision that requires permit holders to provide NMFS with information to populate the Marine Mammal Inventory Report. The gaps in this database are too significant to stem only from the negligence of NMFS. Should these gaps be traced to individual park owners, pressure might be applied to suspend their permits. Without a valid permit, park owners could not ship orcas between facilities for breeding purposes. Similarly, the wasteful nature of the captive breeding industry would be better documented for public education and discussion.

To that end, a challenge could be brought arguing that the premature separation of mothers and calves is a “take” under the MMPA. Although aquarium owners are currently not required to get a separate permit to ship animals between permitted facilities, if this shipment resulted in a fresh “take,” it could be argued that an additional permit should be issued. Similarly, aggressive breeding programs, which result in the death or injury of animals that are bred too early and too often, could be challenged as impermissible takes. Again, however, litigants would face significant hurdles from agency discretion and standing requirements.

2. Challenges under CITES Captive breeding may be most vulnerable under CITES. Because foreign orcas are

generally “parked” and then “laundered” through foreign facilities, a win at the Hague might stem the flow of wild orcas into America. A successful claim might focus on the inhumane nature of shipping orcas by air. Alternatively, a claim could be made that exporting wild-caught animals for captive breeding is harmful to the wild population, and therefore contrary to CITES. Although the parties to CITES acknowledged this tension, it is unclear that they would find it requires a remedy.

Curiously, because CITES only regulates exports of these animals, a challenge under CITES would have to focus on violations of foreign permit holders. Some American animals might be exported under the guise of a “breeding loan,” but most orca traffic runs the other direction. Of course, the jurisdiction of the international arbiter is also entirely discretionary, so relief may be difficult to secure. 3. Other Litigation Two other areas of law may yet provide orcas relief. The Occupational Safety and Health Administration (“OSHA”) recently fined SeaWorld for violations related to the death of trainer Dawn Brancheau. Should OSHA determine that it is unsafe for workers to enter the pool with any orca, not just Tilikum, who drowned Brancheau, the display industry would be crippled. Unfortunately, all the orcas in captivity may then suffer Tilikum’s fate. They would be left to languish in their tanks, completely unstimulated, alienated from the human trainers they consider companions. Although this worst-case scenario would be tragic in its own way, it would bring


an end to the Shamu show and the excessive captive breeding that sustains it. Of course, the OSHA hearings are held in front of an Administrative Law Judge (“ALJ”) and it is unlikely that a private party could instigate such a hearing. Thus, this avenue for relief does not technically qualify as an available cause of action.

In contrast, false advertising claims may be brought by almost any citizen. A false advertising suit, brought by park goers who thought they would see happy orcas, might force SeaWorld to fulfill its mandate to operate an “education or conservation” program. Certainly such a suit would educate consumers indirectly. The financial impact of such a claim might be minimal, unless the case were brought as a class action. C. Alternate Avenues to Relief

The false advertising avenue is most attractive in part because it is an accessible cause of action. More importantly, it would serve as a vehicle to educate consumers. The captive display industry will remain profitable only as long as consumers want to watch Shamu leap from his tiny tank. Changing consumer expectations will reduce the allure of SeaWorld.

Educating consumers is also important because consumers are voters. Captive orcas would benefit most from a lobbying campaign that either restored the MMPA to its former glory or one that updated the AWA to reflect current views about cetacean captivity. An even greater victory could be had if states began banning dolphinaria altogether. Most states could pass a ban with no impact on their economy. These token laws would signal, however, that America is done keeping orcas in bathtubs. The big battles would be in Florida, Texas, and California, where SeaWorld is located. Although these states may never ban the parks that pay them taxes, voters would be informed by the debates held in other states.

Although SeaWorld surely pays a fair amount into the treasuries of Florida, Texas, and California, animal advocates would be wise to locate and publicize any areas where dolphinaria receive tax breaks. Particularly in the parched state of California, it is likely that SeaWorld pays a discounted rate for the water it consumes. This sort of negative publicity, which shows tax payers that the display industry is lucrative in part because individual tax payers prop it up, could be more valuable than any win before an ALJ.

Ultimately, the battle to end the captive cetacean industry will not be won in a courtroom. While a legislative victory might prove more powerful, the MMPA and the AWA serve as cautionary tales, warning that legislative protections can be eroded in an instant. Instead, the battle to spare orcas from a life in captivity must be won in the court of public opinion. Shamu should be pitied, not celebrated. Lolita, like “Willy,” should be freed.

J. James, Page i of ix

1 See Stefan Jacobs, Orcas in Captivity, http://www.orcahome.de/stataqua.htm. 2 See Stefan Jacobs, Orcas Deceased in Captivity, http://www.orcahome.de/orcadead.htm. 3 Id. See also Cetacean Cousins, Wanda, http://cetacousin.bplaced.net/orca/profile/wanda.html.

The orca, named Wanda, was caught off the coast of Newport Harbor, California and died at Marineland of the Pacific in Los Angeles, California.

4 Jacobs, Orcas Deceased in Captivity, supra note 2. 5 Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 4 (1996) available

at http://www.wdcs.org/submissions_bin/orcareport.pdf. 6 Jacobs, Orcas Deceased in Captivity, supra note 2. 7 Id. 8 Id. 9 Williams supra note 5 at 4. 10 Jacobs, Orcas in Captivity, supra note 1. 11 Id. 12 Williams supra note 5 at 28. 13 In 1989, an orca named Kandu died from injuries sustained after violently ramming Corky

during a show. Kandu’s death orphaned her eleven-month-old calf. Jerye Mooney, Captive Cetaceans: A Handbook for Campaigners 19 (1998) available at http://www.wdcs.org/submissions_bin/captivityhandbook.pdf.

14 Some animals require force-feeding to make the transition. Id. at 14-15. 15 Ker Than, Killer Whales Target Favorite Fish With Sonar?, National Geographic News,

Nov. 17, 2008, available at http://news.nationalgeographic.com/news/2008/11/081117-killer-whales-sonar.html.

16 See Center for Whale Research, Orca Facts, http://www.whaleresearch.com/facts.html (orcas can swim up to 160 kilometers a day), 9 C.F.R. 3.104(b)(1)(i) (setting the minimum horizontal dimension for a pool housing a Group I cetacean at 24 feet).

17 See SeaWorld, http://www.seaworld.org/animal-info/info-books/killer-whale/adaptations.htm (foraging orcas can dive 328 feet or more), 9 C.F.R. 3.104(b)(2) (“The minimum depth requirement for primary enclosure pools for all cetaceans shall be one-half the average adult length of the longest species to be housed therein.”).

18 Williams supra note 5 at 28. 19 Studies suggest that wild orcas first give birth at age 14. SeaWorld considers orcas sexually

mature at 6 years old. Mooney supra note 13 at 53. See also Williams supra note 5 at 59. 20 Mooney supra note 13 at 55-56. See also Williams supra note 5 at 59. 21 Corky, for example, has been pregnant seven times but has never born a successful calf. Lolita

is also not a mother, though she has been pregnant at least a few times. See Jacobs, Orcas in Captivity, supra note 1. Notably, only 38% of pregnancies result in live calf. Williams, supra note 5 at 56. Pregnancy in captivity can also be fatal. Five of SeaWorld’s breeding females have died giving birth or shortly thereafter. Williams, supra note 5 at 56.

22 Williams supra note 5 at 60. 23 Id. at 60-61. 24 Id. at 61. 25 Id.

J. James, Page ii of ix

26 Tyler Hayden, Cousteau on SeaWorld Tragedy, Santa Barbara Independent, Feb. 27, 2010,

available at http://independent.com/news/2010/feb/27/cousteau-seaworld-tragedy/ (Jean-Michel Cousteau estimates it would cost $50 million to rehabilitate and release Tilikum, the orca who killed trainer Dawn Brancheau on February 24, 2010.).

27 Associated Press, Keiko the killer whale dies, Dec. 13, 2003, available at http://www.msnbc.msn.com/id/3700297/ns/world_news/t/keiko-killer-whale-dies/ - .Tn-ewk_VxVc.

28 See Orca Network, Keiko’s Story, http://www.orcanetwork.org/captivity/keikostory.html. 29 See Hayden supra note 25. 30 Lolita is a member of the “L pod” of the Southern Residents that live in the waters of the

Pacific Northwest. The Orca Project, Lolita the Orca; Facts, Legal Issues and How To Get Her Home (2010), http://theorcaproject.wordpress.com/2010/09/01/lolita-the-orca-her-life-her-legal-issues-and-her-way-home/.

31 Williams supra note 5 at 16, 88 (Corky is a member of the A5 pod of the Northern Residents of Vancouver, which was decimated by early capture operations.).

32 See Would Lolita Remember Her Family?, http://www.youtube.com/watch?v=pQcy_bgzZZg (clip from NBC Dateline showing Lolita reacting to a recording of her family’s vocalizations), Williams supra note 5 at 88-89 (describing Corky’s response to a recording of her family’s vocalizations played by ABC’s Primetime Live in 1993). See also Orca Network, 2007 Proposal Draft, http://www.orcanetwork.org/captivity/2007proposaldraft.html (Lolita continues to use the dialect of her pod).

33 See Killer Whales of the Northern Resident Community, http://northenresidentorcas.blogspot.com/2007/12/a5-pod-a23-matriline.html (Corky’s mother, A23, died in 2000), Orca Network, Lolita Today, http://www.orcanetwork.org/captivity/lolitatoday.html (Lolita’s mother, L25, was still alive in 2011).

34 Center for Whale Research, Orca Facts, supra note 16. 35 See Orca Network, 2007 Proposal Draft,

http://www.orcanetwork.org/captivity/2007proposaldraft.html. 36 “Lolita has helped the Miami Seaquarium earn approximately or even more than $895,381,500

in the 39 years she has been held captive there.” Arthur Hertz, owner of the Miami Seaquarium, has a million dollar life insurance policy on Lolita. He has declined offers to match this amount in exchange for her freedom. The Orca Project, Lolita Facts, supra note 30.

37 The Marine Mammal Protection Act of 1972, 16 U.S.C. §§ 1361 et seq., originally enacted as Pub. L. No. 92-522, 86 Stat. 1027, on Oct. 21, 1972.

38 The Endangered Species Act of 1973, 16 U.S.C. §§ 1531 et seq., originally enacted as 93 Pub. L. 205, 87 Stat. 884.

39 The Convention on International Trade of Endangered Species of Wild Fauna and Flora (“CITES”), July 1, 1975, 27 U.S.T. 1087, available at http://www.cites.org/eng/disc/text.shtml.

40 The Animal Welfare Act (“AWA”), 7 U.S.C. §§ 2131 et seq., originally enacted as the Laboratory Animal Welfare Act of 1966, 89 Pub. L. 544, 80 Stat. 350.

J. James, Page iii of ix

41 Center for Whale Research, The First Captive Killer Whales – A Changing Attitude,

http://www.rockisland.com/~orcasurv/changing.htm. Although she responded violently to captivity, Wanda’s death was attributed to gastroenteritis and pneumonia, which may explain why she was swimming alone before her capture. See Public Broadcasting Service, A Whale of a Business, http://www.pbs.org/wgbh/pages/frontline/shows/whales/etc/cron.html.

42 Williams supra note 5 at 16-17. 43 Id. (discussing also how three orcas followed their captive relative, Namu, for four days,

travelling 150 miles, as he was “towed” in a floating pen to Seattle). 44 Id. 45 Id. at 17. See also Orca Network, Lolita’s Capture, http://www.orcanetwork.org/captivity/

lolitacapture.html. 46 Id. See also Orca Project, Lolita Facts, supra note 30. 47 Orca Network, Lolita’s Capture, supra note 45. 48 Williams supra note 5 at 18. One year earlier, Canadian legislators restricted capture permits

to Canadian operators. Id. 49 16 U.S.C. §§ 1361 et seq. 50 16 U.S.C. § 1372(a)(1). 51 16 U.S.C. § 1362(13). 52 Jamie M. Woolsey, Detailed Discussion of Dolphins Under the Marine Mammal Protection

Act, Animal Legal & Historical Center, Michigan State University College of Law (2002), http://www.animallaw.info/articles/ddusdolphins.htm.

53 16 U.S.C. § 1371. 54 16 U.S.C. § 1374(c). 55 16 U.S.C. § 1371(a)(1). 56 16 U.S.C. § 1361(6). 57 Williams supra note 5 at 26. NMFS is not totally ineffective. “In 1993, NMFS denied

dolphin import from Japan which didn’t comply with humane capture requirements.” Id. at 71.

58 16 U.S.C. § 1374(c)(10). 59 Id. 60 Id. 61 John Kielty, The Orca Project, Marine Mammal Inventory Report, (Mar. 3, 2011), available at

http://theorcaproject.files.wordpress.com/2011/03/mmir-deficiency-evaluation-killer-whales2.pdf. 62 Robert J. Small & Douglas P. DeMaster, Survival of Five Species of Captive Marine

Mammals, 11:2 MARINE MAMMAL SCI. 209, 210 (1995). 63 The Sun Sentinel offers a searchable website of the database as it existed on March 24, 2010,

available at http://databases.sun-sentinel.com/news/broward/ftlaudMarineMammals4/ftlaudMarineMammals_list.php.

64 16 U.S.C. § 1374(e)(1)(B). 65 16 U.S.C. § 1374(c)(10). 66 See Jacobs, Orcas in Captivity, supra note 1. 67 Williams supra note 5 at 18. 68 PBS supra note 41. 69 Id.

J. James, Page iv of ix

70 Id. 71 Id. 72 Williams supra note 5 at 18. 73 Id. 74 Jones v. Gordon, 792 F.2d 821, 823 (9th Circ. 1986). 75 792 F.2d at 828. 76 National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et seq., Pub. L. 91-190; Jones v.

Gordon, 621 F. Supp. 7, 11-13 (D. Alaska 1985). 77 792 F.2d at 825. 78 Id. at 825-27. 79 See 45 Fed. Reg. 49316 (creating an exemption for permits issued under the MMPA for public

display, but creating an exception to this exemption for projects that are controversial because of their possible environmental impact).

80 792 F.2d at 828. 81 16 U.S.C. § 1372(e). 82 See Jacobs, Orcas in Captivity, supra note 1. 83 58 Fed. Reg. 53,330-31 (Oct. 14, 1993). 84 58 Fed. Reg. 53,330. 85 See Jacobs, Orcas in Captivity, supra note 1. 86 58 Fed. Reg. 53,330-31. 87 Id. 88 58 Fed. Reg. 53,320. 89 Williams supra note 5 at 29. 90 Id. 91 61 Fed. Reg. 21,926 (May 10, 1996). 92 58 Fed. Reg. 53,337. 93 58 Fed. Reg. 53,330. 94 58 Fed. Reg. 53,337. 95 Id. 96 58 Fed. Reg. 53,331. 97 61 Fed. Reg. 21,932. 98 50 C.F.R. § 216.25(a)(1) n1 (“In the context of captive maintenance of marine mammals, the

only marine mammals exempted under this section are those that were actually captured or otherwise in captivity before December 21, 1972.).

99 Pub. L. 103-238, 108 Stat. 532, 532-36. 100 58 Fed. Reg. 53,336-37. 101 Pub. L. 103-238, 108 Stat. 532, 557, adding 16 U.S.C. § 1362(18)(A). 102 61 Fed. Reg. 21,926-27. 103 An “enhancement” activity is “necessary for the enhancement of the survival, recovery, or

propagation of the affected species or stock” and may include the shipment of “biological samples required for the conduct of breeding programs or the diagnosis or treatment of disease.” 50 C.F.R. § 216.41(b)(6)(i).

104 58 Fed. Reg. 53,339 (to be codified as 50 C.F.R. § 216.30).

J. James, Page v of ix

105 Mooney supra note 13 at 20. See also 58 Fed. Reg. 53,347 (cited language would have been

codified at 50 C.F.R. § 216.37(l)), 58 Fed. Reg. 53,361-63 (requiring compliance with 50 C.F.R. § 216.37 to satisfy permit conditions for animals subject to import, export, or public display).

106 58 Fed. Reg. 53,347 (to be codified as 50 C.F.R. § 216.37(l)(1)). 107 Id. (to be codified as 50 C.F.R. § 216.37(l)(2)). 108 See Orca Project, Lolita Facts, supra note 30 (Lolita has not lived with another orca since her

tank-mate, Hugo, died in 1980.). 109 See Jacobs, Orcas in Captivity, supra note 1. 110 Cetacean Cousins, About Shouka, http://cetacousin.bplaced.net/orca/profile/shouka.html. 111 61 Fed. Reg. 21,926-27. 112 61 Fed. Reg. 21,930. 113 61 Fed. Reg. 21,927. 114 61 Fed. Reg. 21,1935 (referring to 50 C.F.R. § 216.43). 115 16 U.S.C. § 1374(c)(2), as enacted in 1988, Pub. L. 100-711, 102 Stat. 4755, 4769-70. 116 Id. 117 58 Fed. Reg. 53,329. 118 Id. 119 Id. 120 58 Fed. Reg. 53,343, to be codified at 50 C.F.R. § 216.35(b)(3)(ii). 121 61 Fed. Reg. 21,926. 122 Id. 123 16 U.S.C. § 1374(c)(2)(A)(i). 124 Lori Marino, Scott O. Lilienfeld, Randy Malamud, Nathan Nobis, and Ron Brogliod, Do Zoos

and Aquariums Promote Attitude Change in Visitors? A Critical Evaluation of the American Zoo and Aquarium Study, 18:2 SOCIETY AND ANIMALS 126, 127 & 130 (2010), available at http://www.orcanetwork.org/nathist/scicaptive.html - captivityrationales.

125 Marino, Critical Evaluation, supra note 124 at 136, citing J. H. Falk et al., Why Zoos and Aquariums Matter: Assessing the Imapact of a Visit to a Zoo or Aquarium, Silver Spring MD; Association of Zoos & Aquariums (2007) at 10, http://www.aza.org/uploadedFiles/Education/why_zoos_matter.pdf.

126 Falk supra note 125 at 10. 127 Marino, Critical Evaluation, supra note 124 at 136. 128 Id. at 135. 129 Id. at 130. 130 Id. at 127, 130. 131 Lori Marino, Gary Bradshaw, and Randy Malamud, The Captivity Industry: The reality of

zoos and aquariums, Best Friends Magazine (March/April 2009) at 26, available at http://www.orcanetwork.org/nathist/scicaptive.html - captivityrationales, citing Bob Mullan & Garry Marvin, Zoo Culture, (1999).

132 “Shamu” is one of the trademarked names SeaWorld uses for its captive orcas. This practice not only improves branding, but it helps mask the death and transfer of individual captive orcas. See Williams supra note 5 at 52.

133 Pub. L. 103-238, 108 Stat. 532, 537, adding 16 U.S.C. § 1374(c)(2)(B).

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134 See PBS supra note 41 (citing $8,000 paid for Namu in 1965). 135 Williams supra note 5 at 29. 136 Pub. L. 103-238, 108 Stat. 532, 537, adding 16 U.S.C. § 1374(c)(2)(A). 137 58 Fed. Reg. 53,362 (If captive maintenance occurred at a facility that was “not required to be

licensed or registered under the Animal Welfare Act,” permit holders had to provide “sufficient information” for NOAA to “determine compliance with all applicable captive maintenance requirements.”).

138 58 Fed. Reg. 53,362 (If captive maintenance occurred at a facility that was “not required to be licensed or registered under the Animal Welfare Act,” permit holders had to provide “sufficient information” for NOAA to “determine compliance with all applicable captive maintenance requirements.”).

139 Id. at 539, adding 16 U.S.C. § 1374(c)(2)(D). 140 58 Fed. Reg. 53,330. 141 Williams supra note 5 at 29. 142 See also Lauren Tierney, Detailed Discussion of Laws Concerning Orcas in Captivity,

Animal Legal & Historical Center, (2010), Michigan State University College of Law, http://www.animallaw.info/articles/ddusorcas.htm (noting, for example, that scarcely 100 inspectors oversee the operations of every laboratory and display facility in America).

143 Id. 144 Williams supra note 5 at 27. 145 Id. at 70. 146 Id. at 26. 147 See Marine Connection, Free Morgan, http://www.freemorgan.com/. 148 Id. 149 Id. 150 Id. 151 Marine Connection supra note 147. 152 See Candace Calloway Whiting, SeaWorld’s Shell Game – Are They Trying to Get the

Young Orca That Stranded in Dutch Waters?, Seattle pi, July 20, 2011, available at http://blog.seattlepi.com/candacewhiting/2011/07/20/seaworlds-shell-game-are-they-trying-to-get-the-young-orca-that-stranded-in-dutch-waters/.

153 ESA supra note 38. 154 CITES supra note 39. 155 16 U.S.C. § 1538(a). See also 16 U.S.C. § 1532(19) (“take” defined). 156 16 U.S.C. § 1539. 157 16 U.S.C. § 1538(a). 158 Specifically, the pre-Act exemption applies to sections 16 U.S.C. §§ 1538(a)(1)(A), (G).

16 U.S.C. § 1538(a)(1)(G) references 16 U.S.C. § 1533, which authorizes regulations related to listing species, recovery plans, monitoring requirements.

159 American Society for the Prevention of Cruelty to Animals v. Feld Entertainment, Inc., 677 F. Supp. 2d 55 (D.D.C. 2009).

160 ASPCA v. Feld, 677 F. Supp. 2d 55, 61, citing American Society for the Prevention of Cruelty to Animals v. Ringling Bros. and Barnum & Bailey Circus, 502 F. Supp. 2d 103, 108 & 110 (D.D.C. 2007).

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161 70 Fed. Reg. 69,903 (Nov. 18, 2005). 162 See Orca Project, Lolita Facts, supra note 30. See also Center For Whale Research, Orca

Facts, supra note 30. 163 Williams supra note 5 at 16. See also Orca Project, Lolita Facts, supra note 30. 164 70 Fed. Reg. 69,911 (Nov. 18, 2005). 165 Id. 166 58 Fed. Reg. 53,330-31. 167 See Jacobs, Orcas in Captivity, supra note 1, Jacobs, Orcas Deceased in Captivity, supra

note 2. 168 16 U.S.C. § 1540(g)(1). 169 Sierra Club vs. Morton, 405 U.S. 727, 734 (1972), Animal Legal Defense Fund vs. Glickman,

154 F.3d 426, 429-30 (D.C. Circ. 1998) 170 Lujan vs. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). 171 504 U.S. at 560-61 172 Animal Legal Defense Fund vs. Espy, 23 F.3d 496, 502-05 (D.D.C. 1994). See also Michael

J. Ritter, Standing in the Way of Animal Welfare: A Reconsideration of the Zone-of-Interest “Gloss” on the Administrative Procedures Act, 29 Rev. Litig. 951, 980 (2010).

173 Ritter supra note 172 at 971. 174 CITES supra note 39. 175 Id. at Article IV. 176 Id. at Article XVI. 177 Id. at Article II (1). 178 CITES supra note 39 at Article III. 179 Id. at Article III § 5(c). 180 See CITES, http://www.cites.org/eng/app/appendices.shtml. See also National Geographic,

http://animals.nationalgeographic.com/animals/mammals/killer-whale/ (Orcas are a members of the order Cetacea. “Killer whale” is a misnomer, as orcas are not whales but are actually the largest species of dolphin.).

181 CITES supra note 39 at Article IV. 182 Id. at Article IV § 2(a)-(b). 183 Id. at Article VII (5). 184 Id. at Article VII (4) (“Specimens of an animal species included in Appendix 1 bred in

captivity for commercial purposes . . . shall be deemed to be specimens of species included in Appendix II.”).

185 CITES Resolution of the Conference 10.16 (Rev.) (2000) (“[M]uch trade in specimens declared as bred in captivity remains contrary to the Convention . . . and may be detrimental to the survival of wild populations of the species concerned.”).

186 Id. 187 CITES supra note 39 at Article IV § 2(a)-(b). 188 Id. at Article III (2-4), IV (2, 5-6), V (2), VII (7) (This provision applies to the import, export,

and re-export of Appendix I animals, the export and re-export of animals listed under Appendix II, the export of Appendix III animals, and to the movement of animals from any appendix that are part of travelling zoos or circuses.).

189 Id.

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190 Williams supra note 5 at 25. 191 Id. 192 Id. 193 Id. at 26. 194 Williams supra note 5 at 59. 195 CITES supra note 39 at Article XVII. 196 Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 et seq. 197 See Lab Animal Act of 1966, Pub. L. 89-544, 80 Stat. 350. 198 Tierney supra note 142. 199 7 U.S.C. § 2131(1). 200 See 107 Pub. L. 171, 10301 the 2002 “Farm Bill,” which changed the definition of “animal”

in 7 U.S.C. § 2132(g) to exclude mice, rats, and birds. 201 7 U.S.C. § 2133. 202 7 U.S.C. § 2134(a)(1). 203 7 U.S.C. § 2134(a)(2). 204 9 C.F.R. § 3.106(a). 205 9 C.F.R. § 3.103(b). 206 Compare space requirements in 44 Fed. Reg. 36877-78 (June 22, 1979) with those in

9 C.F.R. § 3.104(b). 207 9 C.F.R. § 3.104(b)(1)(i), (b)(2). 208 66 Fed. Reg. 243 (Jan. 3, 2001) amending 9 C.F.R. § 3.104(a). 209 Id. 210 9 C.F.R. § 3.109. 211 9 C.F.R. § 3.100(a). 212 Id. 213 See American Cetacean Society, Taxonomy,

http://www.acsonline.org/education/taxonomy.html. 214 See e.g. Wendy Cooke, It’s Time to Go Above and Beyond for Lolita (2009)

http://withoutmethereisnou.wordpress.com/2011/06/08/its-time-to-go-above-beyond-for-lolita/ (detailing administrative appeals urging the USDA to address Lolita’s insufficient tank size).

215 Tierney supra note 142. 216 9 C.F.R. § 3.100(a). 217 9 C.F.R. § 3.100(e). 218 See 63 Fed. Reg. 47148 (Sept. 4, 1998) (dismissing an alternative for being “unnecessarily

costly.”) 219 7 U.S.C. § 2146(a). 220 Id. 221 Tierney supra note 142. 222 Mooney supra note 13 at 19-20, citing 9 C.F.R. § 3.109. 223 9 C.F.R. § 3.103(b). 224 See http://withoutmethereisnou.wordpress.com/2010/09/12/an-experience-at-six-flags-

discovery-kingdom/ (detailing periodic inspections of the Shouka stadium which alternately find violations of and compliance with the shade requirement, despite no physical change in

J. James, Page ix of ix

the facility). Follow the hyperlink at the bottom of the article (“You can view the inspection report by clicking here.”) to download FOIA_Request_27924.pdf, which indicates that Shouka’s stadium lacked shade again on Nov. 24, 2010. Six Flags was given until May 23, 2011 to comply. An inspection on June 13, 2011 found “no non compliant items,” although concerned citizens believe no shade has been supplied.

225 See Orca Project, Justice for Lolita, (June 7, 2011), http://theorcaproject.wordpress.com/2011/06/07/usda-aphis-fails-killer-whale-lolita-at-miami-seaquarium/.

226 7 U.S.C. § 2149. 227 7 U.S.C. § 2149(b). 228 7 U.S.C. § 2149(d). 229 7 U.S.C. § 2159(a). 230 Orca Project, Justice for Lolita, supra note 227 (citing Mar. 3, 2010 letter from Dr. Chester

Gibson, Deputy Administrator of Animal Care). 231 Id. (citing a 2011 conservation and a subsequent letter from Dr. Elizabeth Goldentyer, Eastern

Regional Director of Animal Care). 232 9 C.F.R. § 3.103(b) (requiring “[n]atural or artificial shelter which . . . shall be provided for

all marine mammals kept outdoors to afford them protection from the weather or from direct sunlight.”). See also 7 U.S.C. § 2143(a)(2)(A) (requiring the promulgation of minimum standards to provide “shelter form extremes of weather and temperatures).

233 Press Release Log, Miami Seaquarium Plagued with Problems as BP Oil Contamination Looms – Orca Whale Lolita at Risk, (July 24, 2010), http://www.prlog.org/10814959-miami-seaquarium-plagued-with-problems-as-bp-oil-contamination-looms-orca-whale-lolita-at-risk.html.

234 About Lolita and the Miami Seaquarium, http://www.freewebs.com/let_toki_go_free/faq.htm. 235 Id. 236 Tia Lurie, Let Lolita Live, Examiner, Dec. 21, 2010, http://www.examiner.com/animal-

advocacy-in-west-palm-beach/let-lolita-live. 237 Miami Seaprison, http://www.miamiseaprison.com/hazzards.htm. 238 WSVN, Carmel on the Case: Miami Seaquarium Investigation, Apr. 27, 2005,

http://www.wsvn.com/features/articles/carmelcase/DBM1199/. 239 Howard Garrett, Orca Network, A Review of the Releasability of Long-Term Captive Orcas,

with special consideration of Lolita at the Miami Seaquarium, October (1997), available at http://www.orcanetwork.org/nathist/releasability/homepage.html.

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