Although the Endangered Species Act may encourage extraordinary
efforts to save Puget Sound’s killer whales from extinction, it
cannot be used to bring home the last Puget Sound orca still in
captivity, a court has ruled.
A 51-year-old killer whale named Lolita, otherwise called
Tokitae, has been living in Miami Seaquarium since shortly after
her capture in 1970. Her clan — the Southern Resident killer whales
— were listed as endangered in 2005, but the federal listing
specifically excluded captive killer whales.
In 2013, People for the Ethical Treatment of Animals (PETA)
successfully petitioned the National Marine Fisheries Service to
have Lolita included among the endangered whales. But the
endangered listing has done nothing to help those who hoped
Lolita’s owners would be forced to allow a transition of the whale
back into Puget Sound.
This week, the U.S. Eleventh Circuit Court of Appeals in Atlanta
reiterated its earlier finding that Lolita has not been injured or
harassed to the point that her captivity at the Miami Seaquarium
violates the federal Endangered Species Act, or ESA.
Killer whales are not people, so they cannot benefit from full
protections provided to humans under the U.S. Constitution.
That was essence of a ruling handed down yesterday by U.S.
District Judge Jeffrey Miller. The case was brought in the name of
five captive orcas by a group that includes People for the Ethical
Treatment of Animals.
I had not planned to write about this case, because the outcome
seemed rather obvious. But I must take note of how seriously Miller
handled this constitutional claim. In a seven-page ruling, he
reviewed the history of the 13th Amendment, which outlawed slavery,
and found that it applies only to humans. The following is the
conclusion of the decision, the full text of which can be downloaded
by clicking here:
“Even though Plaintiffs lack standing to bring a Thirteenth
Amendment claim, that is not to say that animals have no legal
rights; as there are many state and federal statutes affording
redress to Plaintiffs, including, in some instances, criminal
statutes that ‘punish those who violate statutory duties that
protect animals.’ … While the goal of Next Friends in seeking to
protect the welfare of orcas is laudable, the Thirteenth Amendment
affords no relief to Plaintiffs.”
SeaWorld, which holds the five orcas, issued a statement noting
that the judge took little time to issue his ruling, which
“provides reassurance of the sanctity of the 13th Amendment and the
absurdity of PETA’s baseless lawsuit,” according to the statement
quoted by
Huffington Post reporter Joanna Zelman.
“There is no question that SeaWorld enslaves animals, even
though the judge in this case didn’t see the 13th Amendment as the
remedy to that. Women, children, and racial and ethnic minorities
were once denied fundamental constitutional rights that are now
self-evident, and that day will certainly come for the orcas and
all the other animals enslaved for human amusement.
“This historic first case for the orcas’ right to be free under
the 13th Amendment is one more step toward the inevitable day when
all animals will be free from enslavement for human entertainment.
Judge Miller’s opinion does not change the fact that the orcas who
once lived naturally, wild and free, are today kept as slaves by
SeaWorld. PETA will continue to pursue every available avenue to
fight for these animals.”
Morgan, the young orca rescued at sea and nursed back to health
in a Dutch marine park, will stay put in the Netherlands while an
Amsterdam judge considers her ultimate fate.
Killer whale activists around the world are thrilled that Morgan
will not be shipped this week to a marine park in the Canary
Islands of Spain, where she reportedly would become part of
SeaWorld’s corporate collection of captive orcas.
A judge in Amsterdam District Court ruled today that more
research should be done to determine whether Morgan should be set
free or stay in captivity. For now, the judge said, Morgan should
remain in Harderwijk Dolphinarium but be moved into a larger tank
with other marine mammals.
“This is a massive victory,” Wietse van der Werf of Orca
Coalition told a reporter outside the courtroom. (Read the story in
Stuff from New Zealand.) “This is the first time in history
that the export of an orca has been blocked by a judge. It exposes
the international trade among dolphinariums as a very lucrative
industry.”
The judge ruled that advocates in the case — including Orca
Coalition, Free Morgan and the dolphinarium — should work together
to find a common solution. Also the Agriculture Minister in
Holland, which last week issued a permit to move Morgan, must take
more responsibility in deciding the future of the whale and not
abdicate his decisions to the dolphinarium, according to the
judge.
A statement from Orca Coalition includes
this comment from van der Werf:
“Of course the fact that she now remains in the Dolphinarium for
the short term is not ideal and it is definitely not a solution.
But as she is temporarily moved to a larger tank and we continue to
fight for her freedom, this really is an important first step in
the right direction.
“It is clear that the judge saw a lot of dubious things in the
Dolphinarium’s plans, and his ruling now opens the door to the
possibilities of release. The decision today is definitely an
unprecendented one and puts a spanner in the works for the ongoing
lucrative and illegal trade in these magnificent animals.”
Moving Morgan to the larger tank will allow her to socialize
with dolphins that she has heard from a distance.
According to a report by Jason Garcia of the
Orlando Sentinel, SeaWorld Parks & Entertainment was behind the
proposed move to Loro Parque on the Canary Island of Tenerife,
where five other SeaWorld-owned killer whales are on display. Many
killer whale advocates assert that SeaWorld is eager to obtain
Morgan for breeding purposes.
A plan
to release the whale (PDF 552 kb) was developed by a group of
killer whale supporters, including Ken Balcomb of the Center for
Whale Research and Robin Baird of Cascadia Research, both in Puget
Sound. The idea would be to place her in a good-sized sea pen,
where she would be trained to follow a boat and respond to acoustic
signals. Morgan could then be released with observers nearby to see
how she responds to other killer whales.
On the other side of the argument is a report
(PDF 1.6 mb) from seven killer whale experts who said Morgan
was not a good candidate for release, because:
She had already imprinted on humans and probably would approach
boats, which would create a hazard,
She may lack the appropriate hunting skills,
There may be a reason, psychologically or socially, that she
became separated from her pod, and
Returning her to her home region would be difficult challenge
because of rough winds and waters.
For background on this story, see my previous entries in
Water Ways:
With our widespread affection for killer whales in the
Northwest, it is not easy to hear the news about the death of a
human who worked closely with these powerful and intelligent
animals.
If you haven’t heard, a veteran orca trainer at Seaworld
Orlando, 40-year-old Dawn Brancheau, was apparently petting the
whale, named Tillikum, when the incident occurred.
Witnesses told the
Orlando Sentinel that the whale grabbed Brancheau by the arm,
tossed her around in his mouth and pulled her under water during a
scheduled program about 2 p.m. today at Shamu Stadium.
Reporter Jason Garcia of the Orlando Sentinel described how
Tillikum, a 12,000- pound male known as “Tilly,” was considered a
dangerous whale. Only select trainers were allowed to handle him,
and nobody was allowed to swim with him.
Chuck Tompkins, in charge of animal behavior for SeaWorld Parks
& Entertainment, told Garcia that Tilikum worked well with
Brancheau. “He knew her, and he liked working with her,” Tompkins
was quoted as saying.
But many killer whale advocates were quick to argue that orcas
don’t belong in captivity and that their confinement in close
quarters can lead to psychological problems for the orcas.
The following are statements from OrcaNetwork of Washington
state and Lifeforce of British Columbia, followed by a couple of
opinion polls on this issue and links to the most informative news
reports. Continue reading →
