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James - Orcas

James - Orcas

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Published by ALDF
James - Orcas
James - Orcas

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Published by: ALDF on Jul 07, 2014
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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
 
 J. James, Page 2 of 17 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
 

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