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-West Highway, Room 13705 Silver Spring, MD 20910 RE: NOAA-NMFS-2012-0158, File No. 17324 Dear Ms. Skidmore: The Animal Legal Defense Fund, a nonprofit with over 100,000 members dedicated to protecting the lives and advancing the interests of animals through the legal system, strongly opposes the Georgia Aquarium’s application to import 18 wild-captured beluga whales from Russia. We appreciate this opportunity to add our voices to the chorus of those who condemn the Aquarium’s plan. The Aquarium’s application is deeply flawed – both legally and logically. A. The Aquarium misinterprets NEPA and ignores precedent
Under the National Environmental Policy Act, agencies may consider the existence of public controversy as a factor to determine whether an environmental impact statement is required. 40 C.F.R. § 1508.27(b)(4). The Aquarium misinterprets NEPA when they dismiss as legally insignificant the controversy generated by their unprecedented and unpopular plan.1 They correctly identify the standard – a matter is highly controversial when a “significant dispute” exists “about the size or nature of the impacts”2 – yet they fail to recognize that their critics are, indeed, disputing the true size and nature of the impacts of the proposed import.
1 Georgia Aquarium, Inc., Application for a Permit to Import Certain Marine Mammals for Public Display under the Marine Mammal Protection Act, NOAA-NMFS-2012-0158, File No. 17324, p. 17 (June 15, 2012). [Hereinafter “Application.”] (“The activities associated with the proposed importation will not result in effects that are considered highly controversial.”) 2 Application p. 17; See also Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2002).
1. A significant dispute exists about the size and nature of the plan’s impacts The true scope of the project is obscured by faulty economic analysis The Aquarium’s application focuses on a narrow set of impacts, examining only the effect of importing 18 captive belugas. The plan’s critics, applying basic economic principles, reveal a broader set of consequences. Put simply, because supply rises to meet demand, purchasing wild-caught belugas fuels the capture market. Should you choose to grant the Aquarium’s permit, more belugas will be captured to replace the ones imported. Thus, the proper scope of inquiry includes the impact of the capture industry on wild beluga populations. To support their incredible claim that the purchase of 18 belugas – in a market where on average only 22 belugas are captured annually3 – does not contribute to the demand for future captures, the Aquarium cites Russian capture quotas. Inexplicably, they suggest that because the quotas regularly exceed the number of animals actually captured, the massive consumption of captive stock has no effect on the market.4 The Aquarium ignores the effect of demand on supply. In fact, the availability of additional belugas to the Russian captors establishes only that the wild capture market is best analyzed under the legal standards applied to volume sellers. Volume sellers, such as manufacturers, have the capacity to produce or acquire goods in quantities sufficient to meet the demands of all buyers. Under the Uniform Commercial Code, § 2-708(2), volume sellers may collect lost profits after a seller’s breach, even after the item has been sold to a replacement buyer. Ordinarily, the profits from the later sale would be deducted from the damages available. The volume seller enjoys a more generous legal position because every potential sale is significant when surplus stock is available to sell to subsequent buyers. See Neri v. Retail Marine, 30 N.Y.2d 393 (1972). Thus, the Aquarium’s claim that their purchase will “not directly result in effects on the [wild] beluga whale stock”5 is false. The wild stock will be affected when their Russian captors return to harvest more animals to replace the ones sold to the Aquarium. The Aquarium’s denial of the link between display and capture is disingenuous The Aquarium’s effort to conceal the connection between wild capture and cetacean display is nothing new. In a practice known as “whale washing,” American aquaria attempt to avoid the intense criticism generated by wild capture. Rather than seek permits to directly capture the animals they hope to display, aquaria quietly facilitate foreign capture. They need only wait a few years before seeking less controversial permits to import these now-captive animals.
3 Application p. 14. (“The average number of belugas collected over the last 5 years is 22.4.”) 4 See Application p. 12. (“This importation will not result in the taking of beluga whales from the wild to replace the animals to be imported. The Russian authorities . . . issue a maximum number of capture permits each year which has ranged from 40 to 57, but that quota has never been fulfilled during this time. . . . It is not anticipated that the importation of 18 beluga whales under this permit will result in a greater demand for marine mammals.” (internal citation omitted).) 5 Application p. 15.
The Aquarium facilitated the capture of these 18 belugas when it spent millions on so-called “conservation” research on “beluga migration patterns and genetic relationships in the Sea of Okhostk.”6 Rather than serve to conserve these belugas, the Aquarium’s studies helped generate the data required to satisfy the international standards governing the export of protected belugas. Somehow the Aquarium touts this as a win for education and conservation. Moreover, the Aquarium plans to continue these studies, laying the groundwork for future import permit applications.7 2. Anti-captivity concerns may constitute a public controversy under NEPA In addition to discarding basic economic theory, the Aquarium ignores judicial precedent. When considering a legal challenge to a permit application filed for the capture of wild orcas, the Ninth Circuit ruled that the concerns of opponents of cetacean capture could amount to a “public controversy based on potential environmental consequences.” Jones v. Gordon, 792 F.2d 821, 828-29 (9th Cir. 1986). Among these concerns, all of which apply equally to the capture of wild belugas, were comments noting that: [K]iller whales in captivity cannot perform their ecological role; permitting Sea World to capture killer whales would severely undercut the United States position against whaling; killer whales do not survive long in captivity; issuing a permit would encourage further exploitation; any exploitation would have long-term impacts on population size and structure; removing a killer whale from a group (pod) may disrupt or destroy the group’s social structure. Id. 3. Anti-captivity concerns are based in science Although the Aquarium characterizes the arguments levied against them as differing “philosophical beliefs” rather than true “scientific controversy regarding the impacts of holding whales in captivity,”8 many of these of concerns are clearly rooted in, and substantiated by, science. Prominent scientists, including Dr. Lori Marino and Dr. Naomi Rose, have studied and documented the devastating effects that wild capture and captivity have on individual cetaceans and on wild cetacean culture. Just months ago, an international group of neuroscientists supported the work of Dr. Marino and Dr. Rose when they declared that: The absence of a neocortex does not appear to preclude an organism from experiencing affective states. Convergent evidence indicates that nonhuman animals have the neuroanatomical, neurochemical, and neurophysiological substrates of conscious states along with the capacity to exhibit intentional behaviors. Consequently, the weight of the evidence indicates that humans are not unique in possessing the neurological
6 Application p. 21. 7 Application pp. 21-22. 8 Application p. 17.
substrates that generate consciousness. Non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates. THE CAMBRIDGE DECLARATION ON CONSCIOUSNESS para. 6 (UK 2012).9 In short, these scientists agree that animals, including cetaceans, have consciousness. With consciousness comes the capacity for immense suffering. The Cambridge Declaration bolsters – with science – the arguments made by critics of cetacean captivity, including the 65 NGOs, who argued persuasively in their comment opposing the Aquarium’s application that cetacean capture violates the Marine Mammal Protection Act because it is inherently inhumane.10 B. The Aquarium’s argument is logically inconsistent 1. Captive breeding requires wild capture Perhaps the most glaring error in the Aquarium’s application is the failure to address the inherent tension between their assertion that captive breeding is a sustainable alternative to wild capture and their insistence that a massive influx of wild-caught belugas is required to resuscitate their breeding program.11 In order to decrease the need for wild capture, the Aquarium requires the capture of wild animals. This tortured logic is particularly egregious in light of the Aquarium’s claim that these wild-caught belugas are required to “enhance the North American beluga breeding cooperative.”12 More accurately, they require these belugas to enhance the American breeding program. In its application, the Aquarium glosses over its failure to work out cooperative breeding arrangements with Marineland of Canada.13 Despite the fact that more belugas languish in captivity there than in all American aquaria combined, the Aquarium argues that the acquisition of 18 wild-caught belugas is the only way to breathe life into their dying industry. Wild capture is clearly not a requirement here. It is simply a way to avoid further negotiation. 2. Captive breeding is not sustainable Similarly flawed is the Aquarium’s assertion that their breeding program would be self-sustaining if only it were larger.14 The Aquarium’s current failure to create a self-sustaining captive population is not the result of a limited gene pool. Captive breeding has failed because
9 Cambridge Declaration on Consciousness attached as Appendix A. 10 See Joint Statement, NGO Statement Against Proposed Beluga Imports by Georgia Aquarium, NOAA-NMFS2012-0158-5583 (Oct. 18, 2012). Attached as Appendix B. 11 Application p. 12. (“Thus, by supplementing the North American beluga breeding cooperative . . . the permit activity will reduce the demand for wild-caught beluga whales for public display.” 12 Id. 13 Application, Appendix E, Alternatives Evaluation p. E-14. (“Georgia Aquarium Inc. (GAI) had numerous discussions with Marineland of Canada regarding the potential for acquiring beluga whales. . . . The end result of these efforts was an incompatible relationship, both financially and philosophically.”) 14 Application p. 12. (“The purpose of the proposed import is to promote conservation and education and to enhance the North American beluga breeding cooperative by increasing the population base of captive belugas to a self-sustaining level.”)
the stress of captivity kills cetaceans faster than they can be created. The Marine Mammal Inventory Reports reveal the truth. Only 24 belugas have been born in American aquaria since 1994. During the same period, 27 belugas died. Of the 71 belugas ever held in captivity in America, only half remain. The majority of these surviving animals are past childbearing age. This staggering rate of loss is not sustainable by anyone’s standards. The Aquarium is asking to import young, fertile belugas not to add to its captive breeding population, but to replace the population that it failed to sustain. Conclusion The Aquarium’s application is a desperate and deceptive attempt to revive a captive breeding program that is misguided, wasteful, and incredibly inhumane. The Aquarium asks you to suspend logic, abandon economic theory, undermine the Marine Mammal Protection Act, and ignore your obligations under NEPA – simply so they can avoid negotiating with Marineland of Canada. With unclean hands, they ask you to bless their support of the wild capture industry, despite the fact that doing so would offend the public sentiment and compromise America’s stance against whaling. Cetaceans are sentient beings with complex social lives and an untold capacity for suffering. Their capture and display is exploitation, not education. We urge you to shut down the Aquarium’s attempt at whale washing. We urge you to exercise your considerable discretion to reject the Aquarium’s outrageous request. Respectfully submitted,
Jenni James Litigation Fellow firstname.lastname@example.org THE ANIMAL LEGAL DEFENSE FUND 170 E. Cotati Ave. Cotati, CA 94931 Tel: (707) 795-2533 Fax: (707) 795-7280
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