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October 28, 2012Jennifer SkidmorePermits and Conservation DivisionOffice of Protected Resources NOAA Fisheries1315 East-West Highway, Room 13705Silver Spring, MD 20910RE: NOAA-NMFS-2012-0158, File No. 17324Dear Ms. Skidmore:The Animal Legal Defense Fund, a nonprofit with over 100,000 membersdedicated to protecting the lives and advancing the interests of animalsthrough the legal system, strongly opposes the Georgia Aquarium’sapplication to import 18 wild-captured beluga whales from Russia. Weappreciate this opportunity to add our voices to the chorus of those whocondemn the Aquarium’s plan.The Aquarium’s application is deeply flawed – both legally and logically.
A.
 
The Aquarium misinterprets NEPA and ignores precedent
Under the National Environmental Policy Act, agencies may consider theexistence of public controversy as a factor to determine whether anenvironmental impact statement is required. 40 C.F.R. § 1508.27(b)(4). TheAquarium misinterprets NEPA when they dismiss as legally insignificant thecontroversy generated by their unprecedented and unpopular plan.
1
Theycorrectly identify the standard – a matter is highly controversial when a“significant dispute” exists “about the size or nature of the impacts”
2
– yetthey fail to recognize that their critics are, indeed, disputing the true size andnature of the impacts of the proposed import.
1 Georgia Aquarium, Inc.,
 Application for a Permit to Import Certain Marine Mammals for  Public Display under the Marine Mammal Protection Act 
, NOAA-NMFS-2012-0158, File No. 17324, p. 17 (June 15, 2012). [Hereinafter “Application.”] (“The activities associatedwith the proposed importation will not result in effects that are considered highlycontroversial.”)2 Application p. 17;
See also
 
Town of Cave Creek v. FAA
, 325 F.3d 320, 331(D.C. Cir. 2002).
 
 
1.
 
A significant dispute exists about the size and nature of the plan’s impacts
The true scope of the project is obscured by faulty economic analysis
The Aquarium’s application focuses on a narrow set of impacts, examining only the effect of importing 18 captive belugas. The plan’s critics, applying basic economic principles, reveal a broader set of consequences. Put simply, because supply rises to meet demand, purchasingwild-caught belugas fuels the capture market. Should you choose to grant the Aquarium’s permit, more belugas will be captured to replace the ones imported. Thus, the proper scope of inquiry includes the impact of the capture industry on wild beluga populations.To support their incredible claim that the purchase of 18 belugas – in a market where on averageonly 22 belugas are captured annually
3
– does not contribute to the demand for future captures,the Aquarium cites Russian capture quotas. Inexplicably, they suggest that because the quotasregularly exceed the number of animals actually captured, the massive consumption of captivestock has no effect on the market.
4
The Aquarium ignores the effect of demand on supply.In fact, the availability of additional belugas to the Russian captors establishes only that the wildcapture market is best analyzed under the legal standards applied to volume sellers. Volumesellers, such as manufacturers, have the capacity to produce or acquire goods in quantitiessufficient to meet the demands of all buyers. Under the Uniform Commercial Code, § 2-708(2),volume sellers may collect lost profits after a seller’s breach, even after the item has been sold toa replacement buyer. Ordinarily, the profits from the later sale would be deducted from thedamages available. The volume seller enjoys a more generous legal position because every potential sale is significant when surplus stock is available to sell to subsequent buyers.
See
 
 Neri v. Retail Marine
, 30 N.Y.2d 393 (1972). Thus, the Aquarium’s claim that their purchasewill “not directly result in effects on the [wild] beluga whale stock”
5
is false. The wild stock will be affected when their Russian captors return to harvest more animals to replace the ones sold tothe Aquarium.
The Aquarium’s denial of the link between display and capture is disingenuous
The Aquarium’s effort to conceal the connection between wild capture and cetacean display isnothing new. In a practice known as “whale washing,” American aquaria attempt to avoid theintense criticism generated by wild capture. Rather than seek permits to directly capture theanimals they hope to display, aquaria quietly facilitate foreign capture. They need only wait afew years before seeking less controversial permits to import these now-captive animals.
3 Application p. 14. (“The average number of belugas collected over the last 5 years is 22.4.”)4
 
See
Application p.
 
12. (“This importation will not result in the taking of beluga whales from the wild to replacethe animals to be imported. The Russian authorities . . . issue a maximum number of capture permits each year which has ranged from 40 to 57, but that quota has never been fulfilled during this time. . . . It is not anticipatedthat the importation of 18 beluga whales under this permit will result in a greater demand for marine mammals.”(internal citation omitted).)5 Application p. 15.
 
The Aquarium facilitated the capture of these 18 belugas when it spent millions on so-called“conservation” research on “beluga migration patterns and genetic relationships in the Sea of Okhostk.”
6
Rather than serve to conserve these belugas, the Aquarium’s studies helped generatethe data required to satisfy the international standards governing the export of protected belugas.Somehow the Aquarium touts this as a win for education and conservation. Moreover, theAquarium plans to continue these studies, laying the groundwork for future import permitapplications.
7
 
2.
 
Anti-captivity concerns may constitute a public controversy under NEPA
In addition to discarding basic economic theory, the Aquarium ignores judicial precedent. Whenconsidering a legal challenge to a permit application filed for the capture of wild orcas, the NinthCircuit ruled that the concerns of opponents of cetacean capture could amount to a “publiccontroversy based on potential environmental consequences.”
 Jones v. Gordon
, 792 F.2d 821,828-29 (9th Cir. 1986). Among these concerns, all of which apply equally to the capture of wild belugas, were comments noting that:[K]iller whales in captivity cannot perform their ecological role; permitting Sea World to capture killer whales would severely undercut theUnited States position against whaling; killer whales do not survive longin captivity; issuing a permit would encourage further exploitation; anyexploitation would have long-term impacts on population size andstructure; removing a killer whale from a group (pod) may disrupt or destroy the group’s social structure.Id.
3.
 
Anti-captivity concerns are based in science
Although the Aquarium characterizes the arguments levied against them as differing“philosophical beliefs” rather than true “scientific controversy regarding the impacts of holdingwhales in captivity,”
8
many of these of concerns are clearly rooted in, and substantiated by,science. Prominent scientists, including Dr. Lori Marino and Dr. Naomi Rose, have studied anddocumented the devastating effects that wild capture and captivity have on individual cetaceansand on wild cetacean culture. Just months ago, an international group of neuroscientistssupported the work of Dr. Marino and Dr. Rose when they declared that:The absence of a neocortex does not appear to preclude an organism fromexperiencing affective states. Convergent evidence indicates that non-human animals have the neuroanatomical, neurochemical, andneurophysiological substrates of conscious states along with the capacityto exhibit intentional behaviors. Consequently, the weight of the evidenceindicates that humans are not unique in possessing the neurological
6
 
Application p. 21.7
 
Application pp. 21-22.
 
8 Application p.
 
17.
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