You are on page 1of 46

BLACKFISH RESPONDS TO SEAWORLD’S LATEST CRITIQUE SeaWorld has issued yet another critique against the film, Blackfish

. This critique is more detailed, yet is equally specious and misleading. So, once again, the Blackfish production team has crafted a rebuttal. What makes this latest effort unique is the timing. It comes on the heels of AB2140, the groundbreaking legislation that seeks to bring an end to “orcas for entertainment” in California. Although Blackfish served as a portal of entry for the many controversial issues surrounding whales in captivity and trainer safety, the bill was introduced because millions have since chosen to seek their own answers. And they have largely come to the same conclusion as the film: killer whales are not suited to captivity and the trainers who work in close proximity to them aren’t safe (a conclusion reaffirmed by the recent U.S. Court Of Appeals rejection of SeaWorld’s appeal of OSHA’s citations). Furthermore, Blackfish exercised considerable discipline in its storytelling, choosing not to cover the many issues that are now surfacing about SeaWorld:      The administration of benzodiazepine (valium) to many killer whales who are said to be experiencing grief, stress or anxiety. The circumstances surrounding the deaths of multiple whales The circumstances involving the injuries of multiple trainers The scant amount of revenues (roughly .06% of $1.5 billion a year) that SeaWorld puts toward conservation. SeaWorld’s ongoing methods of obtaining marine mammals from the wild

Although the attention paid to these issues seems to be growing daily by an increasingly informed public, SeaWorld continues to deny—despite the evidence – that trainers assume an inappropriate amount of risk and that the welfare of its killer whales is compromised by captivity. The issue is not whether SeaWorld has world-class facilities, as it insists at every turn. The issue is whether the care and environment SeaWorld can provide its killer whales can meet their needs and whether trainers left to administer the care can do so safely. Blackfish—by documenting the health issues, the whale-on-whale and whale-on-trainer aggressions, as well as the compromised lives and social experience of SeaWorld’s killer whales—makes clear that SeaWorld cannot give its killer whales lives that are in any way adequate. That is the core issue raised by Blackfish, and that is an issue that SeaWorld never directly addresses in its critiques of Blackfish or in its public relations campaign in response to Blackfish. That said, we look forward to the day when they do. We can then stop engaging in these back-and-forth exercises and search for a solution together. We continue to invite SeaWorld

to be partners in an open discussion about a new business model, one that evolves away from animals for entertainment toward more dignified and sustainable models.

No.

Time Description Stamp

Misleading and/or Inaccurate

1.

:01-1:13

The Opening Sequence is false and misleading. It consists of separate pieces of innocuous training and show footage taken by SeaWorld’s underwater cameras cobbled together (under actual 911 calls regarding Dawn Brancheau) to mislead the audience into believing it is viewing footage of the fatal incident between Ms. Brancheau and Tilikum on February 24, 2010. However, the Opening Sequence does not contain footage of an attack, and neither Ms. Brancheau nor Tilikum are depicted in the Opening Sequence. Opening Sequence: Under soundtrack In addition, the Opening Sequence casts SeaWorld in a false light, misleading the consisting of actual 911 calls, five separate pieces of footage combined to audience into believing that SeaWorld trainers, including Ms. Brancheau, swam depict (1) trainer (presumably Dawn Brancheau) swimming in a tank with a with Tilikum, which never occurred. From whale (presumably Tilikum); (2) various the date that Tilikum arrived at SeaWorld in 1993, SeaWorld had special safety interactions between the trainer and protocols for the care and handling of the whale in the water, including the whale circling trainer; and (3) the whale Tilikum which prohibited any employee making aggressive move towards the from conducting waterwork with Tilikum at any time. trainer. Evidence: 1. 1/6/93 Memorandum from Brad Andrews (See BF Index #1) 2. Shamu Stadium Orientation Checklist (See BF Index #27) 3. SeaWorld Animal Training SOP Section XI – Tilikum Protocol (See BF Index #32) 4. References in OSHA Trial Record to Tilikum and his protocols (Testimony of Schaber, Grove & Mairot) (See BF Index #25, 10, 14)

Blackfish Response

This criticism is somewhat puzzling. The film reveals that the trainer in the water was in fact not a victim of an attack at all, but that the interaction was part of a SeaWorld show. It is likely SeaWorld understands the intention of the opening, which suggests that underneath the spectacle lies the reality that any interaction between a killer whale and a trainer can go wrong at any given moment. It is misleading to suggest otherwise. In addition, the voice-over clearly states that someone is in the pool with “the whale that they’re not supposed to be in the pool with,” so there was no attempt to mislead people into thinking trainers did waterwork with Tilikum. Mr. Hargrove worked at SeaWorld San Introduction to cast member John Diego from 1995 until 2001 and SeaWorld Hargrove, who throughout Film speaks Texas from 2008 through August, 2012. about Tilikum. Hargrove never worked at SeaWorld Florida, and never worked with Tilikum. Blackfish Response This statement of Mr. Hargrove's experience is inaccurate. Mr. Hargrove was also a trainer for SeaWorld of Texas during the time period of 1993-1995 as well as a Supervisor of Killer Whale Training during 2001 and 2002 with Marineland in France. Since Mr. Hargrove was a Senior trainer at SeaWorld of Texas during the time of Ms. Brancheau’s death, he was privy to the details of her death. The former trainers in the film talked about their work at SeaWorld, which combined spans the better part of 20 years, and includes knowledge and direct experience at all three SeaWorld parks. Their work histories include direct experience with many SeaWorld whales, including Tilikum, and all have direct knowledge of serious whale welfare issues as well as many incidents of killer whale aggression against trainers. Furthermore, the former trainers discuss information that is corroborated by others who worked at the park, by eyewitnesses, even by SeaWorld’s own documentation in many cases. Blackfish also relies on input from diverse individuals and we cover a 40-year span of time. Whether these individuals captured killer whales for SeaWorld decades ago, researched them in the wild or trained killer whales at SeaWorld as recently as 18 months ago, they have independently come to a conclusion that is not favorable to SeaWorld. Attempts to discredit them on this basis are simply an attempt to avoid addressing the uncomfortable facts that they bring to light in the film.

2.) 1:40

10752.00002/208769.1 1 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content No. Time Description Misleading and/or Inaccurate

Stamp Ms. Berg has not worked at SeaWorld in over 20 years. Ms. Berg worked at SeaWorld Florida from February 1990 until August 1993. She worked primarily with dolphins, beluga whales and sea lions, and had very limited experience with killer whales. Ms. Berg was not assigned to Tilikum’s team and did not work with Tilikum. Ms. Berg has conceded her lack of expertise in the context of offering opinions in the zoological area. In an email dated September 7, 2011 to John Black, OSHA’s Lead Trial Lawyer in the Department of Labor’s case against SeaWorld, Ms. Berg offers to critique the expert report of Introduction to cast Jeff Andrews, Sea World’s Zoological expert in the trial, member Samantha but conceded: “Mainly, I am concerned that because I Berg, who throughout only worked at SWF for 3 1⁄2 years – and one year at Film speaks about Shamu Stadium that my testimony may not be credible Tilikum. compared to a guy with 25 years of zoological experience.” She also admits: My direct knowledge of SeaWorld’s Procedures for training their staff only extends to what was in place up until August of ’93 – I question whether this qualifies me to speak to SeaWorld’s current safety or training procedures.” Although Counsel for OSHA rejected Ms. Berg as a witness at trial, Ms. Berg repeatedly opines on these topics throughout the Film. Evidence: 1. Email chain from Samantha Berg dated September 7, 2011 (See BF Index #39)

3. 1:54

Blackfish Response Please see Blackfish Response #2. SeaWorld is incorrect. Samantha Berg did swim with whales, did work whales in shows, and she herself claimed she would not declare herself to be a zoological expert after her tenure at SeaWorld. This does not mean her knowledge and experience at SeaWorld Florida isn’t of value when discussing trainer safety and whale welfare. Furthermore, OSHA counsel did not “reject” Samantha Berg as a witness. OSHA counsel did not call any of the former trainers seen in Blackfish as witnesses at the Sanford hearing. Instead, OSHA counsel called current SeaWorld trainers to the stand and their testimony, under oath and under penalty of perjury, led Judge Ken Welsch to rule in favor of OSHA and against SeaWorld. Again, this is simply an attempt to avoid the facts and issues raised by Blackfish by trying to discredit the source of the facts.

4. 2:10

Ms. Ashdown worked at SeaWorld Florida primarily with Introduction to cast dolphins, beluga whales and sea lions, and with killer whales for only approximately 4 months. Ms. Ashdown member Kim was not assigned to Tilikum’s team and did not work with Ashdown, who throughout the Film Tilikum. Ms. Ashdown never performed waterwork with speaks about Tilikum. killer whales.

Blackfish Response Ms. Ashdown was speaking of her own experience while she worked at SeaWorld. In fact, the entire opening sequence with each trainer (including Mark Simmons, who supports SeaWorld) explaining how he or she started at SeaWorld, serves to explain how the qualifications for becoming an entry-level trainer are very minimal. Although Blackfish chose not to cover the following controversial subject matter about a trainer’s willingness to assume significant risks for their job, documentation shows that while at Shamu Stadium in SeaWorld Orlando, Ms. Ashdown voiced that she was uncomfortable and frightened of working not just with Tilikum, but with all killer whales. For that reason, she requested a transfer out of Shamu Stadium. SeaWorld rejected her transfer and instead warned her that any mistakes she might now make while working at Shamu Stadium would be grounds for termination. This is not responsible management. 10752.00002/208769.1 2 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Time No. Description Misleading and/or Inaccurate Stamp Mr. Jett has not worked at SeaWorld in over 17 years. Mr. Jett worked at SeaWorld Florida from Introduction to cast member 1992-1996, and had limited interaction with killer John Jett, who throughout whales. Mr. Jett worked for a short period of time 5. 2:12 the Film speaks about killer with Tilikum under the supervision of a senior whales and Tilikum. trainer. Mr. Jett was never the trainer in charge of any session with Tilikum, and had no decision on how or when Tilikum would be worked. Blackfish Response Having worked directly with Tilikum and having worked at SeaWorld Orlando 17 years ago, Dr. Jett is uniquely qualified to speak of his own first-hand experiences with both, which are corroborated by many other SeaWorld trainers. Since Blackfish committed to following a 40-year history of SeaWorld practices in order to understand both whale welfare and trainer safety, Dr. Jett’s experiences are wholly relevant to what happens in present day SeaWorld. It is important to note that several former trainers who appear in Blackfish have over a decade of experience. Others, who might otherwise have moved up

SeaWorld’s management ladder, sought out an exit plan very soon after they witnessed trainer safety and whale welfare issues. For SeaWorld to imply that if a trainer did not have senior management authority, their experiences as trainers at SeaWorld have no validity, suggests that most of their anti-Blackfish video testimonials given by trainers currently employed at SeaWorld should be discounted.

6. 2:43

Introduction to cast member Mr. Gomersall worked at SeaWorld Florida with sea Dean Gomersall, who lions, beluga whales and dolphins, and never throughout Film speaks worked with killer whales. He never worked with about killer whales and Tilikum. Tilikum. Blackfish Response

Again, discounting the many eyewitnesses who together account for decades of SeaWorld practices in all three of the parks simply because they’ve arrived at conclusions unfavorable to SeaWorld is simply a way of not addressing the issues raised. The fact that SeaWorld chooses to try to attack Mr. Gomersall’s credibility instead of trying to address the points he makes is in and of itself, revealing. This is false and highly misleading. The path to becoming a killer whale trainer is lengthy and demanding, and the Film ignores the ladder of employment -- the many beginning and intermediate steps necessary to be promoted through the ranks to attain the level of killer whale interaction trainer. For example, Mr. Gomsersall Using Ms. Ashdown, Film never attained the position of killer whale trainer, suggests that the only and was not permitted to interact with any killer 2:54- qualifications to become a whales. Ms. Berg, Ms. Ashdown and Mr. Hargrove 7. 3:12 killer whale trainer is to be a did work with killer whales but did not interact with good swimmer and have a Tilikum. good personality. Evidence: 1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 87-92 (See BF Index #8) 2. OSHA Hearing Testimony of Jenny Mairot Tr. 1271-1295 (See BF Index #14) 3. OSHA Hearing Testimony of Lynn Schaber Tr. 292306 (See BF Index #25 ) Blackfish Response See Blackfish response to #4. Again, the entire opening sequence, with each trainer (including Mark Simmons, who supports SeaWorld) serves to explain how the qualifications for becoming an

entry-level trainer are actually very minimal. Ventre has not worked for SeaWorld for over 18 years. Mr. Ventre was employed by SeaWorld from November 1987 through December 1995. Mr. Ventre worked with killer whales for approximately three years, and while he excelled physically at in-water interaction, he was not a decision maker, did not plan the day, and was considered a junior level trainer.

8. 2:08

Introduction of Jeff Ventre

See Blackfish response to #6. 10752.00002/208769.1 3 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Time No. Description Misleading and/or Inaccurate Stamp This sequence misleads the audience into believing that Ms. Berg is the trainer depicted as riding the whale (i.e. engaging in “waterwork” with the whale) thereby making it appear that Ms. Berg had relevant Voice of Ms. Berg over Film experience. In fact, the trainer is not Ms. 9. 4:48 showing female trainer riding a whale. Berg, it is Holly Byrd, and is footage recorded at SeaWorld more than 10 years after Ms. Berg left SeaWorld. SeaWorld has no record of Ms. Berg doing waterwork with killer whales; even if she did, it was very limited. Blackfish Response This criticism reveals a basic misunderstanding of film-making technique. This is standard documentary practice, where b-roll illustrates an event being described in voice-over. The film is describing a universal SeaWorld experience many trainers share, which ironically, was a positive experience for Ms. Berg. Ms. Berg swam with whales and did the exact same behavior as depicted in the scene in Blackfish. In fact many trainers went through that exact introductory waterwork sequence. SeaWorld seems to be accusing Ms. Berg of lying about an event to which many bore witness. This is an ad hominem attack.

10. 8:24

Interview of George Tobin, who states that Tilikum ate Ms. Brancheau’s arm.

This is false. Tilikum did not eat Ms. Brancheau’s arm; The Coroner’s Report is clear that Ms. Brancheau’s entire body,

including her arm was recovered. Evidence: 1. Sheriff’s Investigative Report at pg. 28 (Witness Valerie Greene). (See BF Index #20) Blackfish Response The interview between the sheriff’s office representative and the paramedic did occur and this is what the paramedic said. Blackfish included this interview to illustrate the intensity during this tragic day. To quibble about whether the whale actually ate Ms. Brancheau’s arm or “merely” tore it off (which he did – as SeaWorld admits here when they correctly claim that “Ms. Brancheau’s arm was “recovered”) is mystifying.

11. 8:56

Film incorrectly states that OSHA stopped the waterwork at SeaWorld. In fact, John Jett: OSHA’s conclusion to halt SeaWorld voluntarily suspended waterwork waterwork with killer whales “will with killer whales at each of its three parks on February 24, 2010, the day of the incident have a ripple effect through the whole industry,” and various clips with Ms. Brancheau, over six months before SeaWorld was cited by OSHA, and over two are used to imply that SeaWorld years before trial commenced on the OSHA only suspended waterwork after being cited by OSHA and as a result citation. of public outrage. Evidence: 1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 78-80. (See BF Index #8) Blackfish Response

SeaWorld is correct. The company voluntarily suspended waterwork and kept its trainers out of the water before the OSHA citation. However, while SeaWorld has never explained its decision-making with regard to the suspension of waterwork, it seems pretty clear that it was at least in part affected by the fact of the OSHA investigation. After Alexis Martinez was killed by a SeaWorld killer whale at Loro Parque two months earlier, SeaWorld suspended waterwork at its parks for only a few days. The difference between the two incidents? There was no OSHA investigation, or much public attention, following the death of Mr. Martinez. 10752.00002/208769.1 4 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Time No. Description Misleading and/or Inaccurate Stamp 10:12 – Film implies, through David Duffus This implication is false. SeaWorld has not 12. 14:02 (“it’s not a singular event”) and captured whales in nearly 34 years. The last

Howard Garrett (“Without missing such collection by SeaWorld took place in a beat they went from 1979. Washington to Iceland and began Evidence: capturing there”), that SeaWorld 1. NMFS Data Sheet for Permit #240 (Kasatka) continues to capture whales in the (See BF Index #16) 2. NMFS Data Sheet for wild. Permit #268 (Katina) (See BF Index #17) Blackfish Response Dave Duffus’ statement about “it’s not a singular event” was not in reference to captures. It was in reference to Ms. Brancheau’s death. Howard Garrett’s comment, which is quoted verbatim, is in the past tense. The historical footage on screen and his comment make it clear this was a historical SeaWorld practice. Most important to note (and Blackfish does not cover the following highly controversial ground) is that while it is true that SeaWorld itself no longer captures wild whales, SeaWorld continues—in an effort to promote genetic diversity within its animal “collection”--to bring wild whales into its parks through other captors, and other means. In other words, SeaWorld no longer has to capture its own animals. It has other people do it for them. SeaWorld is currently part of a consortium led by the Georgia Aquarium that is trying to import 18 wild-caught beluga whales into the United States. If they succeed, SeaWorld will introduce new wild belugas into its pools. In addition, in recent years SeaWorld has added stranded wild pilot whales to its animal holdings. Finally, SeaWorld has also laid claim to a stranded killer whale called Morgan, who was rescued near the Netherlands in 2010, and instead of being released back into the wild was transported to Loro Parque in the Canary Islands to join SeaWorld’s killer whale group there.

This is false. There is no court order ejecting or banning SeaWorld from the State of Washington. To the contrary, the court dismissed the case because of a stipulated settlement between the parties in which Garrett states: “They [SeaWorld] SeaWorld voluntarily agreed not to exercise its were finally ejected from the state 13. 13:40 rights under the valid permit issued to of Washington by a court order in SeaWorld by the State of Washington to 1976.” capture whales. Evidence: 1. State of Washington v. Sea World, Inc. Stipulation of Dismissal (See BF Index #28) 2. State of Washington v. Sea World, Inc. Motion

for Order of Dismissal (See BF Index #29) Blackfish Response It is important to note SeaWorld did not “voluntarily” choose to stop capturing whales in U.S. waters as the prior statement may suggest. Due to public outcry and ongoing legal action SeaWorld chose to no longer operate in Washington state waters as part of a settlement, and began capturing killer whales in Iceland instead. 10752.00002/208769.1 5 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Time No. Description Misleading and/or Inaccurate Stamp This implication is false. Tilikum arrived at SeaWorld weighing 7,700 pounds, and currently weighs 12,000 pounds. SeaWorld has never deprived Tilikum of food for any Discusses training technique of reason, training or otherwise. Prior to punishing whales by food deprivation. Tilikum’s arrival at SeaWorld and The Film implies that all institutions continuing to this day, SeaWorld has only with captive whales, including utilized operant conditioning, a scientific SeaWorld, use this technique. For method that professional animal trainers example, later in the Film, when have used for decades. Through rigorous discussing the incident involving Dawn efforts, trainers gradually increase the 14. 15:39 Brancheau, the issue of food is frequency of desired animal behavior, and brought up (1:08:47. 1:09:13) (the minimize the occurrence of undesirable sound of ice at the bottom of the behavior, by encouraging the former with bucket means that food is running out) “positive reinforcement” and ignoring with the misleading implication that (and thereby discouraging) the latter. SeaWorld deprived Tilikum of food or Punishment is never part of operant otherwise used a deprivation type of conditioning, and punishment is never training technique. employed at SeaWorld. SeaWorld pioneered and is the recognized world’s leader in the use of operant conditioning principles for the training of killer whales. Blackfish Response The film merely discusses the fact that food deprivation was a known tactic employed by Sealand of the Pacific, where Tilikum spent his early years in captivity. In addition (though the filmmakers chose not to mention this in Blackfish), SeaWorld, while it does not use food as punishment, does manipulate food rations for performance reasons. According to testimony of present-day trainers, for example, SeaWorld trainers are encouraged to withhold food from killer whales in advance of important VIP shows to promote a whale’s “performance edge” (to increase the likelihood that the hungry killer whales will perform to a higher

standard). Further discussion of food deprivation See Box 14 above. at Sealand of the Pacific. See Blackfish Response above 10752.00002/208769.1 6 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Time No. Description Misleading and/or Inaccurate Stamp Duffus lacks requisite expertise to opine about the behavior of whales in captivity. Duffus’ experience is limited to the observation of wild whales to predict their seasonal movements and to understand whether whale-watching “disturbs” the whales. He has not conducted “any studies” on captive whales, and has no experience related to the interaction of any animals in a zoo or aquarium setting nor any expertise related to the safety of those employees who work with such animals. In addition, Duffus has admitted that he does not know whether being in captivity alters a killer whale’s behavior, and he also has no experience training whales. When questioned by Sea World’s lawyer at the OSHA proceeding, Duffus testified that Sea World is the expert and he suggested SeaWorld “go to work” and think about David Duffus is how they can “balance stuff”. He further testified “I’ve got identified as “OSHA no particular bone to pick with the citation and Sea World 16. 8:53 Expert Witness, and the corporate behavior and the governance of these Whale Researcher.” operations...” “I’ve got no particular issue with SeaWorld, their shows. I guess my main concern is the bar - - is the height of the bar for safety”. SeaWorld challenged Duffus’ qualifications at the OSHA hearing, and Duffus’ lack of relevant expertise is an issue currently pending before the appellate court. In an Order dated August 6, 2013, OSHA Administrative Judge Kenneth Welsch clarified that Duffus “is an expert in the behavior of killer whales in the wild, but he has no expertise in the training of captive killer whales.” Evidence: 1. David A. Duffus Deposition taken August 30, 2011, Pgs. 3842; Pgs. 128-130. (See BF Index #7) 2. August 6, 2013 Decision and Order Granting Petition for Modification of Abatement Date (See BF Index 18) Blackfish Response

15. 17:22

During the OSHA vs. SeaWorld trial, Judge Welsch accepted Dave Duffus, a killer whale expert, as OSHA’s expert witness although it was noted that indeed Duffus had not trained killer whales to perform. However, Judge Kenneth Welsch did express concern over SeaWorld’s expert witness Jeff Andrews, who had significant conflicts of interest. Mr. Andrews was a former employee of SeaWorld and received information about what happened the day Tilikum killed Ms. Brancheau from SeaWorld staff who were not eyewitnesses to the events. Interestingly, after the hearing, Jeff Andrews took on a new position as Vice President of Zoological Operations at Busch Gardens Tampa – SeaWorld Parks and Entertainment. 10752.00002/208769.1 7 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Film misleadingly fails to disclose that David Duffus was the foreman of the five person jury at the 1991 Coroner’s Inquest into the death of Keltie Byrne. The Film also fails to disclose the official Verdict of the Inquest. The Verdict reached by Duffus and his fellow jurors, after considering the testimony of nineteen witnesses, was that Ms. Byrne’s cause of death was “drowning DUE TO or as a consequence of forced submersion by Orca (killer) whales, falling into Interview of Corrine Cowelle and the whale pool.” Duffus and his fellow jurors Nadine Kallen, interspersed with found that Ms. Byrne “fell into the whale pool . . interview of David Duffus. and while attempting to get out the whales Cowelle/Kallen purport to intervened,” and that “rescue attempts . . . were 18:47- provide eyewitness account of 17. thwarted by the whales.” (Emphasis added.) 21:58 Keltie Byrne incident, stating Contrary to the account of Cowelle/Kallen in the unequivocally (22:08) that film, Duffus and his fellow jurors did not find that Tilikum went after Byrne while Ms. Byrne was pulled into the pool by a whale, the other two whales “kind of that Tilikum was the instigator, or that Tilikum circled around” was otherwise more to blame than the other two whales for the death of Keltie Byrne. Consistent therewith, Duffus testified at his deposition in the OSHA hearing that Ms. Byrne “slipped into the water,” “the whales didn’t pull her into the pool. She slipped and fell . . . She did attempt to get out of the water. That’s when the whales pulled her back in.” (Emphasis added). These critical omissions from the Film are highly misleading because the account of Cowelle/Kallen is flatly

inconsistent with the official Verdict of the Coroner’s Jury, for which Duffus served as the foreman of the jury. Presenting the true facts concerning Duffus, the Coroner’s Jury and the Verdict would either undercut the veracity of Cowelle and Kallen or undercuts the competence and veracity of Duffus. Moreover, it appears Ms. Cowelle and Ms. Kallen first came forward with their story 20 years after the incident, on the eve of the 2011 OSHA hearing against SeaWorld, at which time they contacted David Kirby, a known anti-captivity activist and adversary of SeaWorld. They informed Mr. Kirby they were six feet away from the attack when it occurred and that Tilikum was primarily responsible for the incident, which is directly contrary to the evidence elicited during the 1991 Coroner’s Inquest. Mr. Kirby passed this story along to Jeff Ventre, one of the former trainers featured in the Film. Mr. Ventre passed the information on to Lara Padgett, the OSHA Investigator assigned to the SeaWorld case, and John Black, the Department of Labor Senior Trial Lawyer who tried the case at the 2011 hearing. Significantly, neither Ms. Cowelle nor Ms. Kallen were called to testify under oath at the 1991 Coroner’s Inquest or the 2011

Blackfish SeaWorld’s account is both incomplete and misleading. Eyewitnesses Corinne Cowell and Nadine Kallen claim it was Tilikum who instigated the attack by pulling Keltie Byrne into the pool at Sealand of the Pacific. Dr. Duffus, who served on the coroner’s jury for that incident, claims that the jury, having had no access to these eyewitnesses, never determined who instigated the attack, though Duffus did note the coroner’s jury knew Tilikum was the key player in the attack. Nevertheless it has been made clear that the jury did know more about the attack than SeaWorld suggests. Dr. Duffus attests in his full length interview with the filmmakers, “(Tilikum) was the main player unquestionably. He had her in his mouth the whole time.” SeaWorld bought Tilikum as a breeding and performance whale after this tragic incident and therefore may have wanted to characterize him as an innocent bystander. The facts simply do not support this characterization. 10752.00002/208769.1 8

BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content OSHA hearing, however the Film presents their contradictory story as fact. Evidence: 1. 6/5/91 Verdict of Coroner’s Inquest (See BF Index #26) 2. Duffus Deposition at 55, 58 (It should be noted that after being hired by OSHA as an expert witness, Duffus changed his testimony to suggest that Tilikum was primarily responsible for the death of Ms. Byrne, which testimony is flatly contradicted by Duffus’ work and conclusions as foreman of the Coroner’s jury twenty years earlier.) 3. Email from Lara Padgett dated August 1, 2011 (See BF Index #41) Cowelle/Kallen: “No one ever contacted us. There 18. 21:28 was an inquest. No one See Note 17. ever asked us to say what happened.” Blackfish Response The film agrees with SeaWorld’s take, that the coroner’s jury did not have access to the eyewitnesses who claimed Tilikum instigated the attack. However, as previously stated, it was clear to the jury that “(Tilikum) was the main player unquestionably. He had her in his mouth the entire time.” An important note: Chuck Tompkins, Corporate Head of Animal Training for SeaWorld, testified in court that SeaWorld never investigated Keltie Byrne’s death or looked into what role their newly purchased whales played in it. They felt that what happened at Sealand was immaterial to what might happen at SeaWorld because Sealand was a substandard park. (That same attitude was in evidence after SeaWorld’s Keto killed trainer Alexis Martinez at Loro Parque, and was part of the context in which SeaWorld management sent trainers back into the pools to perform waterwork after just a few days. Again, according to SeaWorld, this tragedy was the result of the inexperience of the trainers at Loro Parque. It was only when Dawn Brancheau was killed two months later, and in the face of an OSHA investigation, that SeaWorld suspended waterwork indefinitely.) 10752.00002/208769.1 9 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content See 17. This account, which implies both a cover-up Cowelle/Kallen: “So, in the and that one whale (Tilikum) was to blame, is newspaper articles the cause of inconsistent with the official Verdict of the 19. 21:49 death was that she accidently Coroner’s Jury, of which Duffus was the foreman, drowned, but she was pulled which found that Ms. Byrne drowned as the result under by the whale.” of “forced submersion by killer whales.” (Emphasis added.) The Cowelle/Kallen account is also

inconsistent with the account of Sealand of the Pacific trainer Eric Walters in the article “The Killer in the Pool” by Tim Zimmerman, published 7-30-10 in Outside Magazine. Mr. Walters, who also appears in the Film (15:06, 15:32) stated in the article that the female Nootka, not Tilikum was the aggressive of the three whales: “Each whale had a distinctive personality. Tilikum was youthful, energetic, and eager to learn. ‘Tilikum was our favorite,’ says Eric Walters. ‘He was the one we all really liked to work with. Nootka, with her health issues, was the most unpredictable.’” Prior to the incident involving Ms. Byrne, “according to Walters, Nootka pulled a trainer into the water. (He quickly yanked her out.) Twice she tried to bite down on Walters's hands. Not even the audience was safe. A blind woman was once brought onto the stage to pat Nootka's tongue. Nootka bit her, too.” The Film misleadingly omits this account by Mr. Walters. Blackfish These quotes from Eric Walters are not about the incident with Keltie Byrne. Mr. Walters simply claims Tilikum seemed the most predictable or likable of the three whales. This assessment of Tilikum’s “personality” is also underscored by the former SeaWorld trainers in Blackfish. Tillikum was consistently described as “eager to please” before he killed two more people. See 17. Again, neither Duffus nor the Film disclose that Duffus was the foreman of the Coroner’s Jury. Duffus implies here that a particular “whale pulled Keltie in” however, Duffus’ own verdict as foreman in the Coroner’s Inquest was that Ms. Byrne fell into the pool, and was not “pulled in,” and that her forced submersion thereafter was by the “whales,” not by one whale.

Duffus: You know there’s a bit of smoke and mirrors going on. One of the fundamental facts is 20. 21:59 that none of the witnesses were clear about which whale pulled Keltie in.”

Blackfish Response Once again, the film gained access to eyewitnesses who claim it was Tilikum who pulled Keltie Byrne in. The eyewitnesses were not contacted by investigators in the Keltie Byrne case. “Yes, yeah it was the large whale, Tilikum, the male is the 21. 22:08 one that went after her and the other two just kind of circled See 17-20. In the 1991 interview of the sister that recently played on Nightline, she says that a whale “pulled her under.” She did not identify which whale. She did not state that it was the “large

around, but he was definitely the instigator.”

whale Tilikum,” or state that it was the “male.”

Blackfish response Corinne Cowell claims to remember perfectly which whale pulled Keltie in. The fact that she did not identify “Tilikum” in a 1991 interview is likely indicative of the fact that she was not aware of the whales’ names at the time. Once again, no one investigating Ms. Byrne’s death ever interviewed Cowell or Kallen officially. Nor, as far as we know, did SeaWorld ever make much effort to interview potential witnesses. Cowell and Kallen’s account added new information to what was known about the Keltie Byrne tragedy, which was the reason we included their accounts in Blackfish. We are unclear as to whether SeaWorld is accusing these two women of fabricating a story. Blackfish pursued interviews with the eyewitnesses when their names were discovered by a journalist. Neither Kallen nor Cowell ever sought to retell this traumatic story on their own. 10752.00002/208769.1 10 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is not accurate, and appears to a mis-statement concerning the permits issued to bring Tilikum and the other Sealand of the Pacific whales into the United States. Tilikum was initially brought into the United States on an Emergency Permit based on the Huxter: “My understanding of fact that the two female Sealand whales were the situation is that Tilikum pregnant and would not allow Tilikum to leave their 22. 22:51 and others would not be used tank. Pending the official permitting process, Tilikum in shows, they would not be was given an emergency permit which allowed him to performance animals.” be moved to SeaWorld, but which did not permit public display. The final permit ultimately obtained for Tilikum and the other Sealand whales was for the public display of all three animals. Evidence: Export Permit. (See BF Index #31) Blackfish Response As Former Sealand Director, Steve Huxter was privy to circumstances involving their killer whales, the death of Keltie Byrne, the closing of the park and the subsequent transfer of the whales. SeaWorld claims there was a permit obtained for the whales to be displayed, not necessarily to perform. So it is unclear why SeaWorld finds fault with Huxter’s statement. Ironically, in this criticism, SeaWorld seems to finally acknowledge that they were willing to allow a whale who they knew had recently killed a human being to perform in close proximity to trainers.

10752.00002/208769.1 11 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. There are documented instances of killer whales attacking humans in the wild. • In the 1910s, the Terra Nova Expedition recorded that killer whales had attempted to tip ice floes on which an expedition photographer and a sled dog team were standing. • On June 15, 1972, 43-foot-long (13 m) wooden schooner Lucette (Lucy) was holed by a pod of killer whales and sank approximately 200 miles west of the Galapagos Islands. The group of six people aboard escaped to an inflatable life raft and a solid-hull dinghy. “And to this day, there’s no record of • On September 9, 1972, a Californian surfer named Hans 23. 24:35 an orca doing any Kretschmer reported being bitten by a killer whale at Point harm to any human Sur. His wounds required 100 stitches. in the wild.” • In August 2005, while swimming in four feet of water in Helm Bay, near Ketchikan, Alaska, a 12-year-old boy named Ellis Miller was "bumped" in the shoulder by a 25-foot transient killer whale. The boy was not injured. • During the filming of the third episode of the BBC documentary "Frozen Planet" (2011), a group of orcas were filmed trying to "wave wash" the Film crew's 18-foot zodiac boat as they were filming. The crew had earlier taped the group hunting seals in the same fashion. It was not mentioned if any of the crew were hurt in the encounter. Blackfish Response None of the incidents listed by SeaWorld other than the surfer who required stitches is of “harm” to a person. These incidents were apparently cases of mistaken identity in which the whales targeted supposed prey and promptly broke off the attacks as soon as they realized their error (including the incident with the surfer). However there is no record of a person being killed in the wild by killer whales. This is over the course of millennia of encounters between killer whales in the wild and mariners, scientists, surfers, swimmers etc. Yet in only 50 years, four people have been killed by captive killer whales, and many others injured severely enough to require hospitalization. SeaWorld does not address that here. In addition, SeaWorld seems to be underscoring the important point that killer whales are in fact dangerous and unpredictable animals, which seems to contradict their claim that it is safe to have unprotected contact with these animals. The Film offers no scientific basis for this statement, SeaWorld “[t]he adult is aware of none, and the statement defies logic. If no adult offspring never 24. 24:35 offspring ever leave their mother, there would be no genetic leave their mother’s diversity necessary for survival or separate pods of killer side.” whales. It is estimated that there currently exists thousands of

pods of killer whales in the wild. Blackfish Response SeaWorld’s comment on this is simply incorrect. Males do not disperse from their mothers. This is an established scientific fact in the Pacific Northwest populations and in several other populations where photo-ID catalogues have been and are being established. SeaWorld’s criticism here demonstrates a fundamental lack of understanding of the natural history of this species. The males do not mate with their mothers, they just live with her. They mate with other unrelated females during social encounters when pods mix. Genetic evidence supports this. There are clearly (currently unidentified) cultural and behavioral mechanisms that keep sons from mating with their mothers just as there are in other species like humans and bonobos, which also share this social structure. These mechanisms break down in captivity, where at least one son has mated with his mother. This incest is as unnatural in killer whales as it would be in people. 10752.00002/208769.1 12 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content There is no scientific support for this assertion. The most recent study on life expectancy of southern resident killer whales is that females live between 30 and 46 years and males 19 to 31 years. Garret stated in an interview for the film Lolita: Slave to Entertainment that “in the wild female [killer whales] Garret: “they have average 50 years of age,” which is consistent with the lifespans very similar to scientific evidence upon which SeaWorld bases its human life spans. The 25. 24:35 numbers. females can live to about Evidence: 100, maybe more – males 1. Paper from the Canadian Science Advisory to about 50 or 60.” Secretariat; (See BF Index #4) 2. orcahome.de/lifeexpectancy.htm: “Researchers have determined an average life expectancy for wild killer whales of about 30 years for males and 50 years for females.” 3. Lolita Slave to Entertainment DVD Copyright 2003. Blackfish Response This is false. Mr. Garrett says “they can live to about 100” which is accurate. Please see the Encyclopedia of Marine Mammals, where Dr. John Ford’s entry clearly notes that “Mean life expectancy for females (calculated at age 0.5 years, following the period of high neonate mortality) is estimated to be approximately 50 years, and maximum longevity is 80–90 years. Mean life expectancy for males (calculated at age 0.5 years) is estimated to be about 30 years, with maximum longevity of about

50–60 years.” This is misleading. The most recent scientific research demonstrates that cetacean behaviors used to argue Marino: “The orca brain for high levels of intelligence are found commonly just screams out across mammals and vertebrates, and that cetacean intelligence awareness. We intelligence is qualitatively no different than other took this tremendous brain vertebrates. 26. 25:38 and put it in a magnetic Evidence: resonance scanner. What 1. P.R. Manger, Questioning the interpretations of we found is just behavioural observations of cetaceans: is there really astounding. . .” support for a special intelligence status for this mammalian order?, Neuroscience (2013) Blackfish Response SeaWorld’s suggestion that orcas are no more intelligent than many other vertebrates (a taxonomic group that includes lizards, hummingbirds, frogs and so on) is a perfect example of how SeaWorld’s twists scientific evidence. SeaWorld cites Manger et al. but ignores Marino et al. (with co-authors such as Richard Connor, Louis Herman, David Lusseau, Luke Rendell and Hal Whitehead), which was a rebuttal of this highly controversial paper – a paper that has been largely rejected by the marine mammal science community. Moreover, dolphins (killer whales are large dolphins) are one of only a handful of species that has demonstrated self-awareness via the mirror self-recognition test. This alone puts killer whales in a special group that includes most prominently humans and great apes. This suggests that killer whales, more than most species, have a more developed understanding of the nature of captivity. The idea that killer whales are no more intelligent than many other vertebrates in general is also incongruous with SeaWorld’s own depiction of its killer whales as magnificent and highly intelligent in their literature, in their marketing, and in their sworn testimony. 27. 26:29 Photo of mass stranding. The whales depicted in the photograph are pilot whales, not killer whales. Blackfish Response The film never says otherwise. The film is illustrating mass strandings, which do occur with several species of cetaceans, including killer whales (most notably the nine killer whales who stranded and died in New Zealand this past February). Duffus: “I’ve spent a lot of Contradicted by Garrett (24:09): “What we learned is time with killer whales and 28. 27:42 that they are amazingly friendly and understanding and they’re always in charge, I intuitively want to be your companion.” never get out of the boat

and I never mess with them.” Blackfish Response These ideas do not contradict one another and the comments by Dr. Duffus and Howard Garrett are not mutually exclusive. Mr. Garrett speaks of “personality” while Dr. Duffus refers to the apex predator instincts of the species. Both are consistent with how human beings have come to understand killer whales. 10752.00002/208769.1 13 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This misleadingly suggests that Ventre was present at Tilikum’s arrival at SeaWorld in 1992. However, killer whales are housed at Shamu Stadium, not at Whale and Dolphin Stadium. By his own admission, when Ventre: He arrived I think in Tilikum arrived in 1992, Ventre did not work at Shamu Stadium and he had no firsthand knowledge of 1992. I was at Whale and Dolphin Stadium when he Tilikum’s arrival. 29. 28:52 arrived and he was twice as large as the next animal in the facility.”

Blackfish Response Dr. Ventre recalls his experience of working at SeaWorld when Tilikum arrived. SeaWorld is implying that if a trainer did not work at Shamu Stadium, then they can’t know how big Tilikum was when he arrived. This is not a logical assumption, and in fact, everything Dr. Ventre says in this quote about Tilikum is factual. The assertion regarding Tilikum is misleading, and the implication is false. Tilikum was not immediately introduced to the other whales upon his arrival at SeaWorld. When he was introduced, he did not receive Jett: Tilikum was raked rakes right away. As social hierarchy was established, upon arrival at SeaWorld, in order to establish dominance, the females did on 30. 29:08 with implication that killer occasion give Tilikum superficial rake marks, none of whales are not raked in the which affected his health. The raking stopped within a wild. few weeks. Ultimately, the females bred with Tilikum. There is scientific evidence that raking occurs in the wild (see nos. 43 and 44, infra), and that because whales generally travel in pods, whales do not “run

away” from their pod to escape raking. Evidence: Ingrid Visser Paper (1998) (See BF Index #38) Blackfish Response Once again, having worked with Tilikum, Dr. Jett is qualified to speak of his firsthand experiences with Tilikum. His claims regarding Tilikum’s treatment by the other whales are corroborated by multiple trainers and help explain why Tilikum was and continues to be separated for prolonged periods from the other animals. As for SeaWorld’s characterization of raking in the wild, this varies depending on the population. Some populations, such as the residents in the Pacific Northwest, have very few rake marks. Other populations, such as some in New Zealand, have more rake marks. Icelandic whales appear to be more like Pacific Northwest whales than New Zealand whales in this regard. SeaWorld’s whales are either from Iceland or the Pacific Northwest. Therefore, comparing these animals and their behavior to New Zealand whales is not meaningful. Also, due to the necessity of having certain whales available for shows, SeaWorld constantly moves their whales around and this likely interferes with the whales’ ability to work out a dominance hierarchy and puts a constant strain on their social situations. They don't get to choose their social companions; management does that. This is wholly unnatural for the animals and causes tremendous social strife. 10752.00002/208769.1 14 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. Ventre joined SeaWorld in 1987, four years before Tilikum’s arrival. All new trainers, including Ventre when he was transferred to work with killer whales years after Tilikum’s arrival, received the “Tili Talk,” which included Tilikum’s history. New trainers must complete the Shamu Stadium Orientation Checklist that tests their mastery of necessary skills. They must also demonstrate an understanding of SeaWorld’s Animal Training SOP (standard operating procedures), including a dedicated chapter on Tilikum-specific protocols. Eventually, new trainers sign a form Ventre: “we stating their understanding of the SOP. Each year, they must weren’t given the 31. 31:21 review and re-sign the SOP. In no case may a trainer with fewer full details of than eighteen months’ experience have close contact with a Keltie’s situation.” whale, nor may a trainer with fewer than three years’ experience work without the supervision of a senior trainer. Once a trainer is assigned to a whale’s “team,” he must familiarize himself with its “profile” and “incident reports” and may only progress from nontactile to tactile work depending on senior trainers’ approval. Because Mr. Ventre was permitted to work with Tilikum, he was responsible for complete knowledge of Tilikum’s history, including the incident at Sealand of the Pacific. Evidence:

1. Shamu Stadium Orientation Checklist (See BF Index #27) 2. Tilikum Animal Profile (See BF Index #30) 3. SeaWorld Animal Training SOP Section XI – Tilikum Protocol (See BF Index #32) 4. References in OSHA Trial Record to Tilikum and his protocols (Testimony of Schaber, Grove & Mairot) (See BF Index #25, #10 and #14) Blackfish Response The Tilikum protocol and the script for the “Tili Talk” are part of the materials that were turned over during discovery for the OSHA hearing in Sanford. While the “Tili Talk” makes clear that Tilikum has a history of “being possessive of items in the water” and that should a trainer find him/herself in the water with Tilikum, “you will likely not survive,” the actual history of what happened at Sealand is not recounted. In fact, as Chuck Tompkins of SeaWorld testified, SeaWorld never separately investigated what actually happened with Keltie Byrne. SeaWorld refers solely to the verdict of the coroner’s jury when considering what happened at Sealand . Having done that, what’s of greater concern is that SeaWorld does not actually include those details in the “Tili Talk.”

10752.00002/208769.1 15 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. At the time of Tilikum’s arrival, all trainers and zoological personnel (which included Ms. Berg) received a memo discussing the circumstances of Keltie Byrne’s death: “Haida, Nootka and Tilikum were involved in an incident at Sealand of the Pacific, Ltd. in which a trainer fell into the pool with the animals, could not be rescued because of the animals’ activity and drowned.” In addition, Ms. Berg was a named plaintiff in a 2011 federal court lawsuit, along with Berg : “I was under the PETA, on behalf of Tilikum and four other killer whales. Ms. impression that Berg’s Complaint in that action (paragraph 92) directly 32. 31:35 Tilikum had nothing to contradicts her statement in the Film: “As an associate orca do with [Keltie trainer . . .Ms. Berg was not permitted to conduct direct Byrne’s] death. training with Plaintiff Tilikum due to his known aggression towards humans.” Evidence: 1. 1/6/93 Memorandum from Brad Andrews (See BF Index #1) 2. Complaint in Tilikum et al v. SeaWorld Parks & Entertainment, U.S. District Court for the Southern District of California, Case No. 11-CV-2476 JM WMC (October 25, 2011) (See BF Index #22)

Blackfish Response Nothing SeaWorld quotes here contradicts Ms. Berg’s statement. The memo they cite “Haida, Nootka and Tilikum were involved in an incident at Sealand of the Pacific, Ltd. in which a trainer fell into the pool with the animals, could not be rescued because of the animals’ activity and drowned” is singularly uninformative and mis-states how Keltie Byrne ended up in the pool. They omit the fact that she was pulled in (a perfect example of how SeaWorld massages the facts and did not convey accurately the circumstances of the Byrne tragedy). In addition, this memo was actually written in 1993. Ms. Berg was at Shamu Stadium in 1992 and therefore could not have seen it. Ms. Berg’s statement that she was “under the impression” that Tilikum was not directly involved in Ms. Byrne’s death is also not contradicted by the quote from the lawsuit mentioned, as this was the rationale for not allowing associate trainers to interact with Tilikum. Ms. Berg was left with the impression that this was less because of anything Tilikum had done himself and more because of what had happened at Sealand while he was held there. As mentioned before, SeaWorld bought Tilikum as a breeding and performance whale after the tragic incident of Keltie Byrne’s death. There exists the suggestion that SeaWorld may have had a vested interest in underplaying Tilikum’s direct role in Byrne’s death – an incident SeaWorld admittedly never investigated. It has always been SeaWorld’s “area safety protocol” that a trainer walking around or near any of the whale pools must have a zipped up wet suit; this was not a policy instituted solely with respect to Tilikum. The screen shot at 31:55 Berg’s account of a depicts two trainers whose wetsuits are completely zipped trainer being yelled at up. Berg’s account demonstrates that supervisors had a 33. 31:35 for walking near heightened awareness around Tilikum. The incident with the Tilikum’s pool with wetsuit demonstrates that the supervisors made this wet suit unzipped. awareness very clear to all personnel present. Evidence: 1. Shamu Stadium Orientation Checklist (“wetsuits zipped poolside”) (See BF Index #27) Blackfish Response Ms. Berg was describing that after what she had been told about Tilikum’s involvement in Ms. Byrne’s death, she was surprised at the way management reacted to a trainer walking across a gate with her wetsuit down. While it was protocol for wetsuits to be zipped up, Ms. Berg recalls that many senior trainers and supervisors ignored this rule on occasion. Ms. Berg claims she actually downplayed the event for the film. The supervisor yelled, appeared panicked and used an expletive and Ms. Berg felt that he feared for the trainer’s life. This seemed an overreaction, given that she had been told that

Tilikum hadn’t killed Ms. Byrne, but merely carried her body around after she was already dead. 10752.00002/208769.1 16 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content By splicing together two disparate pieces of film, the viewer is misled into thinking that the trainer in the red wetsuit was in the water with Tilikum. This casts SeaWorld in a false light, misleading the audience into believing that SeaWorld trainers swam with Tilikum, which never occurred. From Trainer in red wetsuit in the the date that Tilikum arrived at SeaWorld in 1993, water, then cuts to segment showing a large whale jumping. SeaWorld had special safety protocols for the care and handling of Tilikum which prohibited any 34. 32:47 The whale is Tilikum in the employee from swimming with Tilikum at any show pool, and gives the impression that the trainer is in time. No water work (except for the desensitization safety training conducted with the water with Tilikum. Tilikum in a controlled environment prior to February 24, 2010 in pools equipped with a lift floor) was ever done with Tilikum.

Blackfish Response This is SeaWorld’s interpretation of a segment of the film. Tilikum was a nonwaterwork whale and the film does not state otherwise. This is false. Tilikum never lunged at trainer Liz Berg: Tilikum lunged at trainer Morris. In the late 1980’s, before Tilikum arrived at 35. 33:04 Liz Morris (now Thomas). SeaWorld a male killer whale named Kanduke lunged at Ms. Morris. Blackfish Response Ms. Berg remembers this incident very clearly and remembers that the animal in question was Tilikum. There is no reason to assume that this incident is not accurate simply because there is no corporate incident report. SeaWorld’s own animal profile for Tilikum notes that he is known to lunge at the control trainer. These lunges do not always appear in the corporate incident reports. In fact many incidents never get written up, a fact admitted by Chuck Tompkins of SeaWorld when he testified during the OSHA hearing that “we missed a few” incidents in the corporate incident log. SeaWorld brings up an important note: Kanduke apparently also came out of the water at Liz Morris. He was also a killer whale who lunged at control trainers. He was also a killer whale with a history of aggression with whom trainers were not allowed to swim. There have been and are still several whales deemed too

dangerous to swim with. Tilikum isn’t the only one. This is false. Kanduke incident occurred before Ventre: Tilikum lunged at Liz Ventre worked at Shamu Stadium. Tilikum never Morris, and he was instructed 36. 34:19 lunged at trainer Liz Morris. SeaWorld to destroy his tape of the management never told Ventre (and would never incident. tell any trainer) to destroy a tape. Blackfish Response Dr. Ventre remembers this event clearly. He was making the 8mm tape to share with SeaWorld San Diego. The entire Shamu crew watched the film after the show. When Chuck Tompkins saw Tilikum lunge toward a trainer, Dr. Ventre remembers Mr. Tompkins looked visibly disappointed that the perfect show was not usable as there was always a “big ego” competition between SeaWorld Orlando and SeaWorld San Diego. Dr. Ventre remembers using two Sony Hi8 players to delete the lunge in order to render the clip usable. To suggest this did not happen is simply trying to wish away another inconvenient fact. This is misleading. Ms. Clark testified for three days at the OSHA hearing. Film uses this one sentence of testimony to evoke emotional bias, and omits all of Ms. Clark’s testimony regarding the lack of whale aggression.

37. 33:42 Kelly Clark “rape” testimony.

Blackfish Response Ms. Clark did make this statement and the statement is in context. When asked whether Tilikum was capable of pulling a trainer into the water Clark responded that her OSHA cross-examiner was capable of rape. SeaWorld may not have liked this unpleasant redirect when it happened in the courtroom but the film was perfectly factual about this. Kalina was disruptive to her mother and the other whales, and at the age of 4 1⁄2 was moved to another park. The Film misleadingly depicts a calf that is only days old, not 4 1⁄2 years old.

36:3938. Separating calf from mother 39:26

Blackfish Response SeaWorld’s view of “disruptive” is not substantiated by any biological, behavioral, or natural history information. What SeaWorld is saying is that Kalina disrupted her mother during shows. Calves at that age in the wild are very active and can be

“disruptive.” This is normal and natural and the solution in wild orca society is to tolerate it, just as it is in human society. Instead of giving Kalina the time and space to mature through this phase, SeaWorld made the integrity of its shows a priority over the integrity of the mother-calf bond, and shipped Kalina off to another park. Children are not permanently sent away to another household if they are disruptive at 4-5 years of age and it is similarly obvious that the practice is damaging and entirely unadvisable for orcas. This was a decision on SeaWorld’s part that was inappropriate. It is unnatural when they separate mothers and calves, at any age. Separation occurred at SeaWorld San Diego in April of 2004 when daughter Takara was 12 years old. Takara, at the time of the move, had her own calf, Kohana, who went with her to Orlando. At the time of the move, John Hargrove was not even working for any SeaWorld park, much less Sea World San Diego. By that point, he had not worked for SeaWorld in 3 years. Blackfish Response SeaWorld has attempted to downplay these traumatizing events by saying they don't separate mothers from their calves, and that Takara was 12 when they took her away from her mother Kasatka. SeaWorld further suggests that it was proud to have sent Takara to Florida with her own calf, Kohana. What they fail to tell you is the rest of this story: Kohana was indeed sent with her mother Takara to Florida but at only three years of age they then took her from Takara and sent her to Spain. There, they bred her unnaturally young. By the age of eight she had already given birth to two calves. With no mother or matriarchal figure to teach her how to be a mother she rejected both calves. The second died within a year. Evidence exists that Takara and Kasatka were still traumatized long after their separation. Years later, simply hearing one another’s recorded vocalizations was visibly distressing to both animals. Takara was still Kasatka’s calf. In fact, she had been allowed to form a more natural bond with her mother by being left with her for 12 years. SeaWorld simply does not exhibit an understanding of the natural history of these animals. The issue is not what age SeaWorld separates calves or offspring from mothers. The issue is that the separations occur at all. In the wild, most offspring stay with their mothers for many years, and family bonds are central to orca culture and social organization. It is as traumatic to separate a 12-year-old orca from her mother as it is to separate a 6-year-old orca from his mother as it is to separate a 3-year-old orca from his mother as it is to separate a newborn orca from her mother. SeaWorld seems to think it is only a problem to

39. 38:05

Separating Kasatka (mother) and Takara (daughter).

separate a newborn from its mother (and yet they do this too, when the mother abnormally rejects her calf), but in fact it is traumatic to separate any aged offspring from his or her mother in orca society. 10752.00002/208769.1 17 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. SeaWorld did not call in a scientist to analyze Kasatka’s vocals. There is no evidence, scientific or otherwise, that these were “long ranged vocals . . .looking for Takara.” During this narration, the Film shows footage of a killer whale, leaving the viewer with the impression that the whale is Hargrove: SeaWorld Kasatka. The whale is at what appears to be underwater brought in a viewing glass and is opening and closing its mouth, which scientist to analyze leaves the impression that the whale is “vocalizing” and 40. 38:05 the vocals. “They otherwise “calling for Takara”. However, this footage is not were long- ranged Kasatka, nor was this even taken at SeaWorld San Diego, vocals . . .looking for which is where Kasatka lives. In fact, whales do not vocalize Takara.” through their mouths. Rather, they vocalize through their blowholes. John Hargrove was not working for SeaWorld at the time of Takara’s move, and would not have known what behavioral reaction, if any, Kasatka had to Takara’s move. Blackfish Response SeaWorld is assuming that trainers do not communicate with each other when they are not at the same park. Mr. Hargrove was in communication with friends and colleagues during his years at Marineland Antibes. Mr. Hargrove also came back into the SeaWorld corporation to Shamu stadium at SeaWorld of Texas. He was privy to the history of Takara since he had worked closely with her in California and would now be working with her and swimming with her in Texas. SeaWorld's own management team from Shamu stadium in California communicated this important information to him as a Senior 1 trainer at Shamu stadium in Texas. This is false. There is no scientific evidence to support Garrett’s assertion. The most recent study on life expectancy of Garrett: We knew by southern resident killer whales is that females live on average 1980, after half a between 30 and 46 years and males 19 to 31 years. dozen years of the Evidence: 41. 41:05 research, that they 1. Paper from the Canadian Science Advisory Secretariat; (See live the equivalent BF Index# 4) to human life spans. 2. orcahome.de/lifeexpectancy.htm: “Researchers have determined an average life expectancy for wild killer whales of about 30 years for males and 50 years for females.” Please see Blackfish Response #25.

Ventre: “Dorsal collapse happens in 42. 41:31 less than 1 percent of wild killer whales. We know this.”

This is false. There is no scientific evidence to support this claim of less than 1 percent. To the contrary, there is scientific evidence that nearly one-quarter of adult male southern resident killer whales in the wild have collapsing, collapsed or bent dorsal fins. Evidence: 1. Ingrid Visser Paper (1998) (See BF Index #38) Blackfish Response

SeaWorld has misrepresented the science on this for years. Full dorsal fin collapse is rare in the wild; as Dr. Ventre says it is “less than 1%”. It is not even close to onequarter. The paper SeaWorld cites is a paper about one population of New Zealand whales (not Southern Resident whales), in which one-quarter of the adult males in a single family (that is, seven individuals) have wavy or misshapen fins, not fully collapsed fins – almost certainly from a genetic anomaly. In fact, by simple observation of hundreds of killer whales in several different populations, less than 5% of adult males have fully collapsed fins, where the fin wraps over the back of the animal. SeaWorld fails to mention that in captivity, 100% of adult males have fully collapsed fins. 10752.00002/208769.1 18 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. There is scientific evidence (including photographs) of orca-on-orca raking in the wild. Marino: “A lot of violence Evidence: 43. 42:19 that you don’t ever see in 1. Ingrid Visser Paper (1998) (See BF Index #38) the wild.” 2. Balcomb III, et al Technical Report: Killer Whales of Southern Alaska photos (See BF Index #3) Please see Blackfish Response See #44 This implication is false. There is scientific documentation of whale-on-whale orca aggression in the wild. Single example of a Evidence: whale dying in captivity 1. Ingrid Visser Paper (1998) (“Scarring on cetaceans has 43:29- from whale-on-whale been recorded for a wide range of species with many of 44. 43:56 aggression with these scars attributed to inter-male aggression [citation implication that this does omitted], but prolific scarring has also been reported on not occur in the wild. females of some species. [citations omitted]. The extensive scarring of the two adult male killer whales reported here cannot be positively attributed to one sex or the other, but it is highly probable that conspecifics

[the same species] caused the parallel tooth rakes, due to the spacing of the rake marks. Scheffer (1969) reports a killer whale marked with regular lines suggesting scars made by the teeth of another killer whale. . . It is likely that any other killer whale involved in a mutually aggressive interaction would also show some scarring. . .Rake marks from killer whales are not uncommon on other species of cetaceans, e.g., . . . humpback whales, . . . gray whales, . . .bowhead whales. These scars all resemble those reported on the two adult male killer whales in this paper.” 10752.00002/208769.1 19 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Blackfish Response SeaWorld cites a paper talking about two individuals in the wild with rake marks as evidence that aggression is common in the wild. However, rake marks on two animals are in no way comparable to some of the intense whale on whale violence documented at SeaWorld, which includes an incident where one captive whale rammed another so violently she broke her own jaw and severed an artery and died, a whale that lost a dinner-plate sized piece of its jaw as a result of trying to flee aggression, and a male killer whale that inflicted a severe bite on the penis of another male – to name a few. In addition to the intensity of the violence, it is clear that some killer whales, such as Tekoa at Loro Parque, experience routine and frequent aggression, resulting in a multitude of visible rake marks. Numerous trainers have made clear that SeaWorld has to work daily to manage the social conflicts within its artificial killer whale groupings, and sometimes the conflicts are severe enough that whales are moved to other parks in the SeaWorld system. Video footage of John Sillick None of the trainers critiquing this incident whale incident in 1987 (26 years worked at SeaWorld San Diego or were present for ago). this incident. The rehearsed routine called for the Jett: “I saw that there was just trainer to ride once around the perimeter of the a lot of things that weren’t pool on the back of the whale. Making a poor right and there was a lot of judgment call based on the routine, Mr. Sillick misinformation.” decided to ride a second perimeter –facing 43:57 Berg: “John Sillick was the guy backward -- and took the whale around a second 45. – time. This act threw off the timing of the send who in 1987 was crushed 47:29 between two whales at signal given to the other whale, which performed SeaWorld of San Diego . .. and the behavior exactly as requested, resulting in the accident, not an act of aggression. the SeaWorld party line was that was a trainer error.” The footage is misleading because it does not Gomersall: It was John’s fault show what occurred in the stadium prior to the and he was supposed to get off incident, it does not explain the rehearsed routine for the behavior, and it fails to disclose that the that whale. And for years I believed that and I told people trainer failed to get off the whale after the first

that.” Ventre: “We weren’t told much about it. Other than it was trainer error. . .” Gomersall: “Years later you look at the footage and you go, you know what, he didn’t do anything wrong.”

perimeter. These omissions enable the cast to falsely claim that SeaWorld is guilty of “misinformation,” that Mr. Sillick “didn’t do anything wrong,” and that the incident was an act of aggression. Jeff Ventre admitted in a November 16, 2011 email directed to OSHA Trial Lawyers John Black and Tremelle Howard-Fishburne and OSHA Investigator Lara Padgett, that the Sillick accident was “not even an act of whale aggression”. He goes on to say that “It was a trainer being in the wrong place and getting smashed while riding a whale.” Nevertheless, the Film portrays the incident as an act of aggression. Following this 1987 incident, and throughout the 26 years since, SeaWorld has developed and incorporated formal protocols for all waterwork interactions to minimize trainer discretion with respect to rehearsed routines. Evidence: Jeff Ventre November 16, 2011 email. (See BF Index #40)

Blackfish Response First, SeaWorld repeatedly suggests that trainers who were not working at a particular park are not qualified to discuss an incident at that park. However, SeaWorld also claims that all of its corporate incident reports are reviewed periodically by all of its trainers as part of their training protocol. Therefore, all of their trainers should be qualified to discuss all corporate incidents, regardless of which park was involved. Second, SeaWorld actually confirms the statements of the trainers – that SeaWorld believes this incident was the result of trainer error. Third, none of the quotes SeaWorld offers actually make the claim SeaWorld is accusing the film of making – that the incident with John Sillick was an act of aggression by the whale. In fact, the quotes simply make the claim that Mr. Sillick was not to blame for his injury – that he did nothing wrong. It is the opinion of the four trainers quoted here that Mr. Sillick did nothing wrong. SeaWorld disagrees. 10752.00002/208769.1 20 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Video footage shows that Ms. Tollison broke SeaWorld’s Home video footage safety protocols, including interacting with a killer whale of incident between 46. 47:26 (Orkid) without a spotter, and repeatedly stepping on Orkid’s trainer Tamarie rostrum. The Film misleadingly portrays this incident as an act Tollison and Orkid. of whale aggression, when the incident could have been

avoided entirely had the trainer followed SeaWorld’s protocols. Blackfish Response The film did not misrepresent this incident. In fact, Mr. Hargrove clarifies that Tamarie Tollison made a mistake and “was lucky to be alive.” However, just because the incident was the result of a trainer breaking protocol does not mean the whale’s reaction to that error is not aggression. Orkid’s behavior was in fact aggression. And in fact both Splash and Orkid exhibited aggression in this incident. After Orkid pulled Ms. Tollison in, Splash bit her arm resulting in the massive compound fracture we see clearly in the film. This occurred in 1971 – 42 years ago – at a time when Footage of employee SeaWorld was owned by the original owners (the first of at SeaWorld San three prior owners), and prior to the current safety protocols 47. 49:13 Diego riding a killer that have long been in place. This employee was a secretary, whale while wearing not a trainer, and the event was a publicity stunt/photo a bikini. opportunity. No such incident could possibly occur at SeaWorld today. Blackfish Response In 2006, four years before the death of Dawn Brancheau, NBC reporter Peter Alexander swam with, hugged, and jumped off a killer whale’s back at SeaWorld San Diego (a killer whale who had a history of aggression toward trainers). Again, Blackfish deliberately delves into SeaWorld’s 40-year history as it serves to shed light on tragic events that have occurred more recently. This is a history Corporate SeaWorld bears responsibility for and the implication that because that incident was 42 years ago it would not have happened today, is clearly false. Finally, Blackfish was made in large part because a senior SeaWorld trainer was killed. That happened in “today’s” SeaWorld. It is surprising that SeaWorld would continue to make ironclad assumptions about what can or can’t happen when captive killer whales are in close proximity to humans. Blackfish suggests this is not a safe assumption, a conclusion that is also reflected in the repeated legal affirmations of OSHA’s original citation of SeaWorld for putting its trainers at risk. 10752.00002/208769.1 21 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Berg: “I believe that it’s 70 This is inaccurate and highly misleading. The Film plus maybe even more, just makes it appear that the depicted documents are killer whale/trainer incident reports relating solely to SeaWorld. However, 48. 49:23 accidents.” Visual: the document depicted in the visual is an index documents purporting to be maintained by a third party (not SeaWorld), and it incident reports. refers to other parks in addition to SeaWorld. For

example the very first entry says “Windsor Safari Park, England” (not affiliated with SeaWorld) which closed in 1992. Most of the entries on the list relate to the 1980’s. Sea World Corporate Curator Charles Tompkins testified during the OSHA hearing that SeaWorld had 98 documented incidents involving its parks and its killer whales during the 21 year time period of 1988 to 2009. As Mr. Tompkins explained, the fact a situation was called an “incident” does not mean that it involved whale contact with a trainer or trainer injury for that matter. In fact, of those 98 incidents, only 12 incidents in 21 years involved actual injury to a trainer. Mr. Tompkins further testified that the number of incidents decreased over time as SeaWorld’s safety program became more sophisticated: Sea World Orlando hadn’t experienced any incident for 5 years before the tragic incident with Ms. Brancheau. The Film misleadingly fails to disclose that evidence. Evidence: 1. OSHA Hearing Testimony of Charles Tompkins Tr. 369-376; 487. (See BF Index #33) Blackfish Response SeaWorld submitted reports on more than 70 incidents for the OSHA hearings. These reports totaled more than 100 and the time frame SeaWorld cites (1988-2009) conveniently excludes all incidents prior to 1988 (which includes three near-fatal incidents in 1987), and subsequent to 2009 (which of course excludes the deaths of both Alexis Martinez and Dawn Brancheau). Moreover, as noted earlier, during the OSHA appeal SeaWorld’s Chuck Tompkins (the Corporate VP of Animal Training) acknowledged that some number of incidents were never written up in incident reports. Former and current SeaWorld trainers interviewed by the Blackfish production team have made clear that in fact MANY injuries and incidents were never formally documented. Some believe that the total number of aggressive incidents between SeaWorld’s killer whales and its trainers could number in the high hundreds. Dawn Brancheau’s tragic death is a perfect example of how SeaWorld is not rigorous in its incident reporting. To our knowledge a formal incident report analyzing her death has still never been created or shared with SeaWorld’s training staff. With regard to incidents at other parks, SeaWorld Orlando attempted to claim in court testimony that what happens at other SeaWorld parks or parks supervised by SeaWorld employees is irrelevant to what happens in SeaWorld Orlando. However, Judge Welsch ruled that what happens at other parks is in fact highly relevant to SeaWorld Orlando, as the legal standard is the “industry norm”. SeaWorld Orlando should have realized the risk of working with whales based on

what happens at all their parks and with all their killer whales whether in the U.S. or abroad. This footage is misleading because Hargrove’s injury had nothing whatsoever to do with any whale. Hargrove was doing a footpush into a stage slide and Video of John Hargrove with when he slid across the stage, he hit his head on the bloody face. Film implies 49. 50:30 concrete slideover because he didn’t perform the that Hargrove was injured maneuver correctly. In the correct maneuver, the by a whale. trainer would keep his head up as he enters the slideover area. Hargrove basically dove into the concrete, injuring himself. Blackfish Response Mr. Hargrove’s injury directly involved a whale and SeaWorld documentation supports this. The maneuver he was performing started with propulsion from a 8000 lb. whale moving at rapid speed which resulted in him slamming into the concrete slideover. To claim it had nothing to do with any whale is false. In short, as the former trainers in the film state, SeaWorld continues to blame trainers for their own injuries. 10752.00002/208769.1 22 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content As can be seen in the video, Duffus’ statement is not accurate. The whale Ken Peters incident. Duffus: “The (Kasatka) crossed over but did not jump over 50. 51:09 whale jumped over [the net] and the net, and did not “come after” Peters came right after him.” once Peters crossed the net. The whale did not even swim all the way to the slideout. Blackfish Response Kasatka without question came over the net. This was the net that the whale was supposed to see as a barrier and not come over. And regardless of how SeaWorld chooses to try to spin and minimize Kasatka’s behavior, it is clear that Mr. Peters believed she was coming after him, because despite his severely injured foot he jumped up and tried to scramble away when he saw Kasatka come over the net. Ventre was no longer employed at SeaWorld at the time of this incident in 1999, so he has no personal knowledge of the facts. His Daniel Dukes incident. Ventre: “Well, assertion of a “public relations version” is all I know is the public relations false and misleading. The official Sherriff’s 51. 55:12 version of it. . . he climbed the barbed report includes a detailed timeline of the wire fence around the perimeter and events: SeaWorld employees first noticed stayed after hours.” Dukes in the pool around 7:20 am. 911 was called at 7:25 am and an officer was dispatched to SeaWorld at 7:26 am. When

the sheriff arrived the body was still in the pool on Tilikum’s back. There was no barbed wire fence. Evidence: 1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19) Blackfish Response Once again, SeaWorld is agreeing with what the film says but is presenting it as a rebuttal. Dr. Ventre clarifies he was not there when Daniel Dukes was killed. He is recounting his recollection of what he learned about the incident. Moreover, John Hargrove was a trainer at Shamu stadium in California when this happened and agrees with Dr. Ventre's assessment of what was being communicated to trainers about the Daniel Dukes incident at the time. Jett was no longer employed at SeaWorld at the time of this incident in 1999, so he has no personal knowledge of the facts. The implication that SeaWorld concocted a story is false and designed to cast SeaWorld in a negative light. In fact, as set forth in the official sheriff’s investigative report, Dukes was mentally ill and had a criminal history. He had just gotten out of jail two days before he came to SeaWorld. He had undressed, and his clothes were found on the north side of the pool deck. He had put on a swimsuit. The cause of death was determined by the Medical Examiner to be an accidental drowning. Further demonstrating the falsity of the Film’s claim that Dukes’ death was a case of whale aggression, Naomi Rose, Ph.D. of the Humane Society of the United States, an outspoken critic of SeaWorld, was quoted as saying “since the body was found on Tilikum’s back, it’s unlikely the whale was behaving aggressively. . .The whale was probably playing with the man and continued to play with the body after the man died.” Evidence: 1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19) 2. Orlando Sentinel Article dated July 7, 1999

Daniel Dukes incident. Jett: “Perfect storyline” suggesting that SeaWorld concocted a story. “A mentally disturbed guy hides in the park after 52. 55:44 hours and strips his clothes off and decides he wants to have a magical experience with an orca and drowns because he became hypothermic.

(See BF Index #21) Blackfish Response Daniel Dukes’ autopsy report is publicly available. This was not an “accidental” drowning. The forensic evidence very clearly shows that Tilikum inflicted premortem and post-mortem wounds on Mr. Dukes’ body. What his motivation was or his level of aggression at the time was unknown. A captive whale does not have to be acting in an aggressive manner to kill a human being. As Blackfish simply states, Tilikum killed Mr. Dukes and SeaWorld’s statements subsequent to Mr. Dukes’ death seemingly aim to once again minimize Tilikum’s role in a human death. 10752.00002/208769.1 23 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. In 1999, there was no night trainer or watchperson stationed at Tilikum’s pool. Rather, there was a night watchman responsible for walking the Ventre: He was not detected by the entire perimeter of the stadium and pools. 53. 56:00 night watch trainers who were Evidence: presumably at that station. 1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19) 2. Orlando Sentinel Article dated July 7, 1999 (See BF Index #21) Blackfish Response SeaWorld is claiming here that there was a night watchman making rounds. Missing a body in the pool for many hours seems highly unlikely and that no evidence of any activity was captured on SeaWorld’s multiple cameras seems also highly unlikely. That nobody checked on Tilikum between 10pm and 7am seems improbable given SeaWorld's own protocols. That is what Drs. Ventre and Jett are suggesting in the film. Mr. Hargrove notes that a calf had just been born less than a month prior to this incident. Mr. Hargrove further states that not having any trainers there observing the mother (Kalina) and a newborn calf (Tuar) at night would go against any SeaWorld protocol he has ever followed. This is false. There were no cameras pointing to the back area at Shamu Stadium. In the various still photographs used in the Film at 56:10, there is no photograph of the back area of the stadium. Evidence: 1. Orange County Sheriff’s Office

Jett: There were cameras all over the back of Shamu’s Stadium, pointing every which way. . .I find it hard to 54. 56:07 believe that nobody knew until the morning that there was a body in there.”

Investigator’s Report (See BF Index #19) 2. Orlando Sentinel Article dated July 7, 1999 (See BF Index #21)

See Blackfish Response #53 10752.00002/208769.1 24 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. There was no “public relations spin.” The official Orange County Sheriff Investigator’s Report indicated that Dukes was a “transient” who was arrested for retail theft and spent three days in jail in Vero Beach, Florida and was released two days before arriving in Orlando where he was observed at SeaWorld (due to strange clothing and lack of personal hygiene) the day before his death. The Report further provided that at 7:20 am on July 6, 1999, SeaWorld employee Michael Dougherty headed to the underwater viewing area where the Ventre: “The public relations fitness facility is located when he noticed human spin on this was that he was legs in the tank with Tilikum. He knew this was a kind of a drifter and died of problem because of SeaWorld’s safety protocol that 55. 56:30 hypothermia but the medical no one is allowed in the water with Tilikum. examiner’s reports were more Dougherty alerted security. At the same time, Arturo graphic than that.” Cordoba, another employee charged with cleaning the pools and deck was on the deck and observed a white male on the back of Tilikum. Orange County Sheriff was contacted immediately and arrived on the scene while Dukes was still on the whale’s back. The cause of death was determined by the County Medical Examiner to be drowning and the manner of death to be an accident. Evidence: 1. Orange County Sheriff’s Office Investigator’s Report (See BF Index #19) Blackfish Response The autopsy report was certainly more detailed and disturbing than the description offered here by SeaWorld. Notably SeaWorld does not cite the autopsy report, only the sheriff’s report. Jett: So why keep Tilikum there? This guy . . his proven 56. 57:22 track record of killing people . . .he is clearly a liability to the The statement “proven track record of killing people” is false and highly misleading. Regarding Keltie Byrne, the verdict of the Coroner’s Jury did not find that Tilikum was the instigator or more

institution.

responsible than the other whales. Regarding Dukes, there is no evidence of what happened to Dukes other than the Medical Examiner’s finding that Dukes accidentally drowned. Blackfish Response

There were eyewitnesses to the Keltie Byrne incident that were not considered by the coroner’s jury (this was the reason Blackfish included Ms. Cowell’s and Ms. Kallen’s interview). Mr. Dukes’ autopsy report offers considerable forensic evidence that Tilikum was actively involved in his death. SeaWorld’s implication that the lack of eyewitnesses means we cannot know what happened to Mr. Dukes beyond the sheriff’s report is completely unreasonable. Forensic science is entirely based on determining what happened (e.g., cause of death) when there are no witnesses. There is no scientific or other evidence linking the “Family Tree” of breeding by 57. 58:21 few incidents of whale aggression at SeaWorld to a Tilikum. whale’s genetic connection to Tilikum. Blackfish Response SeaWorld has repeatedly bred Tilikum, a whale that has a history of killing people. By their own admission, if you end up in the water with Tilikum, “you will likely not survive”. This would be considered irresponsible breeding by any dog kennel or horse farm. One does not continue to inject questionable genes into a gene pool. SeaWorld never addresses this simple fact and it continues to be of great concern that any institution would take this chance.

58. 59:31 Loro Parque sequence.

This emotional part of the Film falsely implies that SeaWorld was involved in a cover- up to hide the circumstances surrounding the trainer’s death. SeaWorld leases whales to Loro Parque for breeding and display purposes, and supplies a trainer to Loro Parque to provide oversight of the training program for SeaWorld’s whales. SeaWorld has nothing to do with the management of Loro Parque, and had no involvement with the notification given to the trainer’s family immediately following the incident. Blackfish Response

The whale that killed Alexis Martinez was a SeaWorld whale and the supervisor in charge of the session was a SeaWorld trainer. SeaWorld distanced itself from what

happened at Loro Parque. They continue to do it here and they also did it in court. Judge Welsch made it very clear that they were clearly connected to what happened with their whales at Loro Parque. 10752.00002/208769.1 25 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This statement is false. SeaWorld has never denied that it has a business relationship with Loro Parque, however there is no formal affiliation between the two parks. Duffus misstates the trial record; there was no question posed regarding “linkage.” Kelly Clark correctly testified at the OSHA trial that four of the whales at Loro Parque belonged to SeaWorld. She also made clear that Sea World had provided trainers to assist Loro Parque. When asked whether Loro Parque was owned by SeaWorld, Ms. Clark correctly testified “no.” When asked whether SeaWorld is “affiliated” with SeaWorld, Ms. Flaherty Clark correctly answered “no.” When asked further questions about the relationship, Ms. Flaherty Clark made it clear she was not the proper Loro Parque / Duffus: “For person to answer such questions. She somebody to get up and say in a testified: “I actually don’t know that I’m the court of law that they had no right person to answer this question. I can knowledge of the linkage between answer anything you want to know about Sea 59. 1:05:37 SeaWorld and this park in Tenerife World of Orlando and how I supervise my is well either, she doesn’t know supervisors, but . . .I did not have direct line when she is telling the truth or it’s reports at Loro Parque and have not.” a bold face lie.” Moreover, the Film ignores the fact that the SeaWorld trainer on loan to Loro Parque at the time of this incident, Brian Rokeach, testified extensively at the OSHA hearing concerning this incident. In addition, Michael Scarpuzzi, the Vice President of Zoological Operations at Sea World San Diego testified that he oversaw Brian Rokeach, participated in weekly calls with Loro Parque related to the training process and Sea World’s whales, and actually made regular visits to Loro Parque. He was informed of the incident by Mr. Rokeach, traveled to Loro Parque himself, reviewed the video of the incident and actually went to each Sea World park afterwards to discuss the incident with all Sea World curators. Rather than use this testimony, the Film features the

testimony of Kelly Clark, who, of the three trainers, knew the least about SeaWorld’s relationship with Loro Parque in order to falsely and misleadingly portray Ms. Clark as “lying” about the business relationship between SeaWorld and Loro Parque. Evidence: 1. OSHA Hearing Testimony of Kelly Flaherty Clark Tr. 38-39; 133; 165-67 (See BF Index #8) 2. OSHA Hearing Testimony of Brian Rokeach Tr. 1175-76; 1181-88; 1202-26 (See BF Index #23) 3. OSHA Hearing Testimony of Michael Scarpuzzi Tr. 1109-36. (See BF Index #24) Blackfish Response Dr. Duffus was addressing what Kelly Flaherty Clark said in her testimony. It remains difficult to imagine that she was not aware of the close relationship between the two parks. SeaWorld was intimately involved with almost every aspect of the care and training of its killer whales at Loro Parque. It had an obvious affiliation with Loro Parque and to say otherwise is misleading to say the least. During the course of the hearing, SeaWorld’s own attorney stated, “Judge, may I raise an objection to questioning on Loro Parque because Loro Parque is clearly not an issue in this case, and I would like Counsel to explain the basis for the questioning of a park not owned by Sea World in a matter that involves Sea World of Florida LLC specifically.” SeaWorld counsel repeatedly tried to argue that what happened at Loro Parque was irrelevant to the situation at SeaWorld Orlando, even though the death of Alexis Martinez occurred only nine weeks before Ms. Brancheau’s death and trainers were kept out of the water for only a matter of days. (Mr. Hargrove testified before the California State Assembly that he was back swimming with killer whales in shows for weeks before having been given any details about this incident.) The film depicts this attempt by SeaWorld to distance itself from what happened at Loro Parque perfectly accurately. An important note was that this attempt failed in court. 10752.00002/208769.1 26 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Ms. Allie was a videographer with no knowledge Suzanne Allie discussing Loro or expertise in the training of killer whales. She Parque, its reputation, has no foundation or education whatsoever to 1:00:25, facilities, training and the offer her critiques or conclusions. Ms. Allie, 60. 1:02:31 quality of trainers, the whales, alongside Naomi A. Rose Ph.D. of the Humane and SeaWorld’s purported Society of the United States, has made similar responsibility for the incident. claims to United States governmental agencies. All such claims have been rejected.

Blackfish Response Ms. Allee worked at Loro Parque for several years and her claims about the inexperience at Loro Parque are corroborated by Jenny Mairot, a supervisor at SeaWorld Orlando who testified during the OSHA hearing that one of the reasons for the incident at Loro Parque was the inexperience of the trainers. Ms. Allee’s statement is similarly corroborated by Jeff Andrews, SeaWorld’s expert witness during the OSHA hearing. Mr. Andrews claimed that “due to the inexperience of some of the people there that there were just simply too many mistakes…and that that type of scenario would never occur at a Sea World Park due to the extensive experience and greater skill.” As for the complaints made to US governmental agencies, they were not “rejected.” No final decision has been made on these complaints. This segment is highly misleading because it is placed in the Film immediately before Jett states that he had been expecting somebody to be killed by Tilikum (1:06:26). Therefore, the whale coming on stage is depicted as a dangerous moment/act of aggression imperiling the trainer (Ventre). In fact, this is a scripted part of the show, and was entirely expected by the trainer (Ventre), who was never in danger.

A whale comes out onto 61. 1:05:39 stage while Ventre is talking into the microphone.

Blackfish Response The filmmaker uses this behavioral sequence in exactly the same way it is used by SeaWorld – to make the audience feel it is an unscripted, menacing moment. SeaWorld is criticizing the filmmaker for doing exactly what SeaWorld did by including this behavioral sequence in the show. Ms. Berg last worked at SeaWorld in 1993, seventeen years before the incident with Dawn Berg Interview re Brancheau Brancheau. Ms. Berg never worked with Tilikum 62. 1:06:54 incident and only worked with killer whales for a very brief period. Ms. Berg has no personal knowledge regarding the incident. Blackfish Response SeaWorld continues to claim that the former trainers have no basis for their opinions, given how long ago they worked at SeaWorld and that some of them did not work directly with Tilikum. However, these former trainers did work as trainers at SeaWorld and that is the basis for their opinions. SeaWorld can disagree with those opinions but they cannot claim the former trainers have no basis for them.

63. 1:07:01

Ventre Interview re Brancheau incident

Mr. Ventre last worked at SeaWorld in 1995, fifteen years before the incident with Dawn Brancheau. Mr. Ventre has no personal knowledge regarding the incident. Although Mr. Ventre purports to critique the incident, Mr. Ventre had at most, three years’ experience working with killer whales at a very junior level, and never in the role of trainer-in-charge of any encounter. By comparison, Dawn Brancheau, whom Ventre purports to critique, had 16 years’ experience, was one of SeaWorld’s most senior and experienced trainers, attained the title of Supervisor of Animal Training, and was the senior trainer on Tilikum’s team. See Blackfish Response #62

10752.00002/208769.1 27 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content Cast members purport to criticize Dawn Brancheau for her handling of Tilikum. None of the cast members was present at the incident or had recent first-hand experience with Tilikum and are engaged in pure speculation. During the OSHA hearing, there was extensive eye-witness testimony from trainers who were present for the Dine with Shamu show and Ms. Brancheau’s interactions with Tilikum both during and after Jett: “There is no food left . . . the show. Lynn Schaber, then a Senior Trainer she kept asking him to perform approved to work on Tilikum’s team, served as a more behaviors . . . he was not spotter that day. She testified that she believed 64. 1:09:13 getting reinforced for the Tilikum performed correctly during the Dine with behaviors that he was doing Shamu show. Jan Joseph Topoleski was an correctly; he probably was additional spotter for that show and the frustrated toward the end . .. interaction that followed. He testified, referring to Dawn, “I remember she said she was really proud of the interaction that we did; nothing really out of the ordinary”. Evidence: OSHA Hearing Testimony of Lynne Schaber Tr. 277; 284-287; 320 (See BF Index #25) OSHA Hearing Testimony of Jan Topoleski Tr. 741745 (See BF Index #35) Blackfish Response

See #62. The opinions of the former trainers who were not there during the death of Dawn Brancheau do not have a conflict of interest, a desire to remain employed or a vested interest in forming a specific conclusion on what might have happened on that day. They are simply theorizing based on their collective experiences and based on having worked at SeaWorld Orlando with Tilikum. 10752.00002/208769.1 28 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. Jett had not worked at SeaWorld in 17 years and had limited interaction with killer whales. His account is pure speculation. At the OSHA hearing, two witnesses testified to the way in which Tilikum pulled Ms. Brancheau into the water. The first was SeaWorld trainer Jan Topoleski, who was acting as Ms. Brancheau’s spotter, who testified that Ms. Brancheau was pulled into the water by her ponytail. The second was a SeaWorld security guard (Mr. Herrera) who testified that he saw Tilikum grab Ms. Brancheau’s arm and pull her into the water (Tr. 247). However, on the date of the incident, Mr. Herrera had told the Orange County detective that the whale grabbed “either her hair or her arm.” On cross-examination during the OSHA hearing, Mr. Herrera admitted that he could not see Ms. Brancheau clearly from his vantage point and that “I’m Jett: “Tilikum at some not sure if he grabbed her arm or her hair, I don’t know. point grabbed a hold of “(Tr. 249) OSHA concluded from this testimony that the her left forearm and way in which Ms. Brancheau entered the water “was 65. 1:09:46 started to drag her and not established as a fact at the hearing, and it is in dispute.” A third witness, Valerie Green, reported to the eventually did a barrel Orange County Sheriff that she saw “a woman’s roll and pulled her in.” ponytail in the whale’s mouth.” Ignoring the express OSHA finding and the overwhelming evidence that Ms. Brancheau was pulled in by her hair, the Film falsely states as “fact” that Tilikum grabbed Ms. Brancheau by the arm, for which there is no competent evidence. Evidence: 1. Jan JosephTopoleski handwritten statement – February 24, 2010; (See BF Index #36) 2. Jan Joseph Topoleski: transcript of recorded statement – February 24, 2010; (See BF Index #37) 3. Jan Joseph Topoleski: OSHA testimony; (See BF Index #35) 4. Fredy Herrera: Witness Statement; (See BF Index #13) 5. Fredy Herrera: OSHA testimony; (See BF Index #12) 6. Valerie Green: Witness Statement; and (See BF Index #19) Blackfish Response

As the OSHA hearing acknowledged, there is no conclusive proof establishing how Dawn Brancheau was pulled into the pool, which makes it a matter of subjective debate. But it is important to note that Ms. Brancheau’s hair was not a novel stimulus, as SeaWorld has tried to maintain (see #67). 10752.00002/208769.1 29 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. Ms. Berg has not worked at SeaWorld in over 20 years and has no knowledge of the incident. As Berg: “At first Sea World demonstrated in the Film immediately preceding this reported that a trainer statement, it was the Orange County Sheriff, not slipped and fell into the SeaWorld, that reported this (1:11:38). This account of the 66. 1:11:48 water and was drowned. incident by the Sheriff was clearly a mistake as it was So, that was the first directly contradicted by the eyewitness statement given report.” to the Sheriff’s office by SeaWorld’s employee Jan Topoleski immediately following the incident (see below). Blackfish Response This does not seem to follow. The Orange County sheriff’s office would know only what SeaWorld witnesses had told them. In fact, SeaWorld representatives were standing with the sheriff’s office spokesman when he stated that the trainer slipped and fell in. Those representatives did not do anything to correct or contradict him. He would have only reported this version of events based on what he had been told only moments earlier by those same representatives. Those representatives included the Curator of Animal Training and the corporate VP of Animal Training. 10752.00002/208769.1 30 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content This is false. There is no evidence whatsoever that the statements regarding Tilikum grabbing Ms. Brancheau’s ponytail were concocted by SeaWorld. To the contrary, an Jett: “It wasn’t until eye witness eyewitness to the incident, spotter Jan accounts disputed that, that they Topoleski, testified under oath at the OSHA had to go back into their huddle and hearing that Ms. Brancheau was pulled into said wait a minute, we’ve got to 67. 1:11:55 the water by her ponytail. He stated under come up with a new plan. . . The new oath that he saw Ms. Brancheau get up on plan is that he grabbed her ponytail. her knees and put her hands to her pony tail: This is a subtle way of placing the ‘She could not break free. She had both blame on Dawn’s shoulders.” hands on her pony tail being pulled toward the water’ (Tr. 745-746). Significantly, Mr. Topoleski provided the identical report – that Tilikum had Ms. Brancheau by the hair -- to

the Orange County Sheriff’s office only minutes after the incident. Mr. Topoleski’s written and audio statements under oath to the Sheriff were part of the OSHA record. Less than 90 minutes following the incident, Mr. Topoleski wrote in his Statement to the Sheriff that Tilikum had “bit down on a piece of her hair. Within the span of 2 seconds she was pulled into the pool, unable to get her hair released.” Within a few hours of the incident, Mr. Topoleski gave a taped, oral statement in which he recounted: “All I saw was her grabbing her hair and trying to pull it out of his mouth.” The Detective asked Mr. Topoleski: “so you think the hair was the only reason he grabbed her?” Mr. Topoleski responded: “Yes. Absolutely.” Mr. Topoleski has gone on to a distinguished career in animal training, currently working with the Federal Bureau of Investigation training bomb- sniffing dogs. Finally, the Film omits other evidence corroborating Mr. Topoleski’s testimony, including the Coroner’s Report itself. When read in its entirety, the Coroner’s Report disproves the Film’s claims that SeaWorld concocted the ponytail theory and/or that SeaWorld had lied. Evidence: 1. Jan Joseph Topoleski handwritten statement – February 24, 2010; 2. Jan Joseph Topoleski: transcript of recorded statement – February 24, 2010; 3. Jan Joseph Topoleski: OSHA testimony; and 4. Coroner’s Report. 5. Orange County Sheriff’s report pg. 26 of 43 Blackfish Response Mr. Topoleski said that the only reason Tilikum grabbed Ms. Brancheau was because of her hair. That is an unsubstantiated opinion from someone who later claimed he wasn’t sure if this is exactly how it happened. Furthermore, female trainers, including Ms. Brancheau often wore their hair in ponytails. This would not be a novel stimulus to Tilikum and indeed Jenny Mairot, who worked and still works with Tilikum testified in the Sanford hearing that Tilikum was fully desensitized to ponytails (“No, he knew how to work with us when we had our whistles on, he knew how to work with us when we had our hair in ponytails, he knew how to work with us with other things”).

Claiming Ms. Brancheau’s ponytail instigated the attack tends to suggest that Ms. Brancheau could have done something differently. It also makes the incident look like curious play, when the subsequent aggressive attack was anything but.

10752.00002/208769.1 31 BLACKFISH ANALYSIS: Misleading and/or Inaccurate Content The Film portrays Marino’s statement as if it is the opinion of the scientific community, and as such is false and misleading. There is no scientific evidence to support such a blanket statement. To Marino: “All whales in captivity the contrary, the Journal of Zoo and Aquarium have a bad life. They’re all Research recently published a paper that emotionally destroyed. They’re discusses the history of this very issue. Killer 68. 1:14:32 all psychologically traumatized. whales in captivity have an excellent standard of So, they are ticking time bombs. living and have access to food and state of the art medical care. It’s not just Tilikum. Evidence: Fay E. Clark: “Marine mammal cognition and captive care: A proposal for cognitive enrichment in zoos and aquariums” July 24, 2013 Blackfish Response If SeaWorld believes its killer whales lead such healthy, normalized lives, why won’t it share necropsies or medical records? Moreover, there is a statement now available signed by 35 leading cetacean scientists, including several orca biologists, most of whom are unaffiliated with NGOs, which clarifies that in fact the quality of life for these animals in captivity is considered poor. Anything claimed by a zoo publication has a clear conflict of interest. As is shown in the Film, the filmmakers had complete access to the transcript and other materials from the OSHA hearing. SeaWorld’s trainers and veterinary staff provided over 71 hours of recorded testimony under oath before OSHA, yet the Film misleadingly incorporates only Scrolling Statement: “SeaWorld several sentences – each taken out of context – in repeatedly declined to be a transparent attempt to cast SeaWorld in a false interviewed for this film.” and extremely negative light. In addition, in the days, weeks and months following Ms. Brancheau’s death, SeaWorld personnel and executives, including CEO Jim Atchison, COO Dan Brown and Chief Zoological Officer Brad Andrews gave hundreds of media interviews. Chuck

69.

Tompkins, Head of Animal Training, gave more than 50 interviews, most of which were via satellite link, and Mr. Atchison gave a press conference, broadcast live via satellite around the world, at which he took questions from more than 30 media outlets. Accordingly, had it been the purpose of the Film to fairly and legitimately present SeaWorld’s position on the various issues and events portrayed in the Film, there was a mountain of testimony and interview material from which to choose. However, as was apparent from the filmmaker’s very first communication with SeaWorld, and as is obvious from the Film and the comments of the filmmakers, the cast and third parties such as PETA in the media, the purpose of the Film was not to present a balanced treatment of the issues, but to pursue an antiSeaWorld agenda. Under these circumstances, SeaWorld correctly chose not to participate in the Film. Blackfish Response The filmmakers pored through SeaWorld’s interviews which were largely found to repeat the same “ponytail” talking points and to express sadness over the tragedy. There was almost no revelatory information divulged as one can only assume it was not in SeaWorld’s best interest to discuss anything of consequence with the media prior to heading to court against OSHA. Futhermore, the “mountains” of testimony were also pored over by the filmmakers. This information enabled the filmmakers to reach the same conclusion as Judge Welsch did in his verdict about the unacceptable state of trainer safety. In other words, it is unclear why SeaWorld would have wanted more of its testimony included in Blackfish when this is precisely the testimony that caused the court to rule that SeaWorld consistently failed to protect its trainers. The filmmakers did not collaborate with animal activist groups in the making of Blackfish, and in fact, most of the film’s interviews came from individuals who had worked for SeaWorld or Sealand of the Pacific. The Blackfish director has repeatedly clarified that she is not an animal rights activist. That is a matter of record. She went into this intending to make one film and ended up making another based on the facts she learned while researching the film. 10752.00002/208769.1 32

Related Interests