Captive Whales, Dolphins, and Porpoises: Legal and Ethical Considerations

by Ashley Landwerlen Vol. 98, No. 4   July/August 2024   Pg 40

February 24, 2010, is a day forever imprinted on the hearts and minds of the members of the zoological and aquaria community.^[1] Dawn Brancheau, a senior marine mammal trainer at SeaWorld Orlando, dedicated her 15-year career to caring for animals, inspiring millions of park guests to love and respect marine life.^[2] However, on that fateful day in 2010, Dawn horrifically lost her life after Tilikum, a wild-caught 12,000-pound male orca with whom Dawn had formed a strong relationship, violently grabbed her from a poolside platform, fatally drowning her.^[3] Dawn was the third death associated with Tilikum over his 33 years under human care.^[4]

Dawn’s death sent shockwaves throughout the zoological and animal rights communities, thereby invigorating an intense and longstanding debate concerning the ethics and legality of whales, dolphins, and porpoises (collectively “cetaceans”) possessed and publicly displayed under zoological care, commonly referred to as captivity.^[5] Now, 14 years after Dawn’s death and with Miami-Dade County’s recent lease termination and order to evict the Miami Seaquarium, one of Florida’s largest marine parks, the debate rages on.^[6]

On one side of the debate, the accredited zoological and aquaria community maintains it implements the highest standards of animal welfare and that seeing living cetaceans provides the viewing public with an education that, ultimately, contributes to the overall conservation of the species displayed.^[7] On the other side, animal rights groups insist marine parks fail to provide an accurate picture of cetacean welfare, the legality of their treatment, and the ethics of a life not lived in the ocean.^[8]

This author, as a former professional marine mammal trainer having worked directly with zoological cetaceans, and a recent Florida State University College of Law graduate, takes a multidisciplinary approach — encompassing law, ethics, and marine mammal science — to analyze the complex and contentious issue of cetaceans kept for public display. This column provides an overview of the federal laws protecting cetaceans; also, the legal and ethical considerations are discussed regarding a cetacean’s current legal status, the challenges of releasing a long-term captive cetacean into the wild, and the complexities of seaside sanctuaries as an alternative form of zoological housing and care.

Federal Legal Protections

As one of four taxonomic groups of marine mammals, cetaceans are protected under the Marine Mammal Protection Act of 1972 (MMPA),^[9] the Animal Welfare Act of 1966 (AWA),^[10] and, if listed as endangered, the Endangered Species Act of 1973 (ESA).^[11] Cetacean species kept under zoological care include common bottlenose dolphins (Tursiops truncatus), Pacific white-sided dolphins (Lagenorhynchus obliquidens), orcas (Orcinus orca or “killer whales”), belugas (Delphinapterus leucas), and porpoises (family Phocoenidae).^[12]

The Marine Mammal Protection Act

The MMPA establishes a national policy to protect marine mammal species and wild population stocks that “are, or may be, in danger of extinction or depletion as a result of man’s activities.”^[13] The MMPA ensures wild marine mammal stocks maintain an optimum sustainable population by implementing a sweeping moratorium against taking, importing, exporting, and selling any marine mammal, including their parts or products.^[14] To “take” means “to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, or kill any marine mammal.”^[15]

Nevertheless, the MMPA provides exceptions from its general take and import moratorium for qualifying public display facilities.^[16] The act’s implementing regulations define “public display” as “an activity that provides opportunities for the public to view living marine mammals at a facility holding marine mammals captive.”^[17] The National Marine Fisheries Service (NMFS or NOAA fisheries) is responsible for administering and enforcing the MMPA.^[18] NMFS issues permits for the taking and importation of cetaceans for public display purposes based on: 1) the receiving facility must offer an education or conservation program based on industry standards; 2) the facility must be open to the public on a regularly scheduled basis; and 3) the facility must be licensed or registered by the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service (APHI) under the AWA.^[19]

However, certain permit limitations and issuance criteria apply based on the individual animal and proposed activity at issue.^[20] The MMPA explicitly prohibits imports of marine mammals that are: 1) pregnant at the time of taking; 2) nursing or less than eight months old at the time of taking, whichever occurs later; 3) taken from a species or population stock that the secretary has designated as “depleted;”^[21] or 4) taken in an inhumane manner.^[22] Also, an applicant must demonstrate adequate expertise, facilities, and resources.^[23]

The permit applicant carries the burden of proof to demonstrate that “[t]he proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock.”^[24] Thus, the MMPA protects against a market effect of continued demand to capture (i.e., take) wild marine mammals for import and public display by requiring an applicant to demonstrate that the proposed activity will not likely result in the taking of subsequent marine mammals beyond those authorized by the proposed permit.^[25]

The Animal Welfare Act

While the MMPA requires a permit to take or import a cetacean, the act does not generally require a permit to maintain one for public display.^[26] Instead, the AWA and its accompanying regulations set the minimum standards governing the humane care, housing, treatment, handling, sale, and transport of cetaceans bred and maintained for commercial exhibition.^[27] The AWA requires exhibitors to acquire a valid USDA Class C license to lawfully display cetaceans to the public.^[28] Licensed exhibitors must comply with water quality, feeding, sanitation, veterinary care, habitat construction, and, if applicable, “swim-with-the-dolphin” program requirements.^[29]

Notably, the AWA does not provide a civil suit provision.^[30] Thus, as part of the USDA, APHIS administers enforcement of the AWA by conducting pre-licensing and unannounced compliance inspections.^[31] Failure to correct non-compliance identified during an inspection may result in warnings, animal confiscations, fines, cease-and-desist orders, license suspension or revocation, civil penalties, or criminal prosecution.^[32]

The Endangered Species Act

Under the ESA, it is unlawful to possess, sell, import, export, transport, or take an endangered species.^[33] The term “take” means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.”^[34] Of the cetacean species common to public display, specific ecotypes of belugas (the Cook Inlet population)^[35] and orcas (the Southern Resident population) are listed as endangered.^[36] Several courts have held that the ESA does not allow captive animals to be assigned separate legal status from their wild counterparts solely based on their captive status.^[37] Thus, where a captive cetacean shares a demonstrable genetic heritage with its endangered wild counterpart, it enjoys the protections granted by the act and, therefore, may require an exhibitor to obtain ESA permits and authorizations to lawfully conduct its activities.^[38]

Legal and Ethical Considerations

In the eyes of the law, nonhuman animals are considered no more than mere property, in essence, a thing.^[39] When an animal is injured, the law generally sets damages based on the animal’s fair market value before the harm occurred.^[40] Florida’s anti-cruelty statute defines “animal” as “every living dumb creature.”^[41] While current law forbids treating an animal however one may wish, the property status of animals offers minimal protection of their interests, allowing them to be used as a commodity to serve the needs of humans.^[42]

However, various jurisdictions (domestic and abroad) are beginning to recognize an animal’s sentience as a living, feeling being and should, therefore, be treated as such under the law.^[43] In Nonhuman Rights Project, Inc. ex rel. v. Lavery 124 A.D.3d 148 (N.Y. App. Div. 2014), Judge Fahey (concurring) said, “[w]hile it may be arguable that a chimpanzee is not a ‘person,’ there is no doubt that it is not merely a thing.”^[44] Judge Fahey’s observation draws on an important consideration: law and policy should formally recognize that nonhuman animals possess an intrinsic value in their own right, independent from their economic, practical, or aesthetic usefulness to humans.^[45]

While U.S. law lags in its recognition of nonhuman animal sentience, the field of marine mammal science does not. Like humans, cetacean brains are large in absolute and relative size, with a structural complexity that supports complex information processing, enabling intelligent, rational, and self-aware behavior.^[46] Studies on captive bottlenose dolphins demonstrate they possess profound intellectual and cognitive abilities.^[47] Dolphins understand symbolic representations of things and events, possess a procedural knowledge of how to work and manipulate objects, form a complex social understanding of the activities, identities, and behaviors of others, and can recognize and respond to gestural instructions.^[48] Other than humans, dolphins are the only mammals capable of extensive vocal and behavioral mimicry (i.e., imitation), which scientists consider the highest form of social learning.^[49]

A dolphin not only mimics others, but also forms a self-image based on its appearance, behavior, and body parts, which gives rise to an ability to monitor and evaluate its behavior.^[50] This is demonstrated by the fact that bottlenose dolphins have the rare ability to recognize themselves in a mirror. Mirror self-recognition not only indicates the animal’s capacity to interpret information accurately, but also suggests another rare individual motivation to use the mirror as a tool to observe oneself.^[51]

However, perhaps most profound in the discussion of cetacean sentience is their behavioral and psychological capacity to grieve, mourn, and experience bereavement toward the dead or dying.^[52] Known as “epimeletic” behavior (i.e., supporting, nurturing behavior), several cetacean species, particularly adult caregiving females, show human-like grief with the loss of a calf.^[53] In fact, other than primates, no other mammal is known to carry or refuse to let go of a dead calf as long as a cetacean.^[54] Wild cetacean populations have been observed carrying the dead for weeks even where the deceased offspring is in advanced, even unrecognizable, stages of decomposition.^[55] Thus, when a living being can look in a mirror, recognize oneself, and grieve the loss of an offspring, might the current status of the law be inaccurate and unjust in valuing him or her as no more than a piece of furniture?

“Free” Willy and the Power of Individual Learning History

Only one long-term captive orca has ever been released back into the ocean, and his name was Keiko (Keh-ee-koh).^[56] As the star of the Warner Brothers blockbuster movie Free Willy, Keiko is one of the most famous whales in history, identified by his iconic three black spots on his lower white jaw.^[57] In 1978, at approximately two years old, Keiko was captured off the coast of Iceland and lived in concrete pools at numerous zoological facilities in Canada, Mexico, and the U.S.^[58] In 1993, Keiko starred in Free Willy, a movie depicting a lone captive orca who is befriended by a young boy and eventually released back into the ocean, where he swims off happily ever after.^[59]

After the movie, non-profit animal rights groups lobbied for Keiko to follow the plotline of his fictitious character by returning him to the wild.^[60] In 1998, Keiko was transported to a sea pen in Vestmannaeyjar, Iceland, and received training aimed at reintroducing him into the wild.^[61] However, according to those who worked with Keiko, the managers of his release project expected him to take the initiative in his own release.^[62] It was hypothesized that Keiko would recognize the calls of his wild relatives, thereby triggering his instinct to return to an ocean environment he knew as a calf almost 25 years earlier.^[63]

Ultimately, Keiko’s release project cost him his life.^[64] In August 2002, Keiko traveled offshore, swimming from Iceland to Norway.^[65] It is unknown if he fed himself during this time, but he never integrated with other orcas.^[66] Once in Norway, Keiko initially sought the company and attention of humans.^[67] However, Keiko soon became less active as his health progressively declined from the stress triggered by the extreme rate of public interactions, physical exhaustion, and dehydration caused by lack of food.^[68] In September 2002, Keiko’s release project built a free-access bay pen and resumed feeding until his death from pneumonia in December 2003 at approximately 26 years old.^[69]

According to U.S. Standards of Release, effective marine mammal release programs involve a young stranded or distressed wild animal kept under professional care for a limited duration, kept in sea pens rather than concrete habitats, and released with conspecifics.^[70] A release program is considered successful when the animal demonstrates the capacity to feed itself, maintains its health and hydration, displays stress levels comparable to its wild counterparts, exhibits normal predator avoidance behavior, and, if physically capable, eventually reproduces.^[71] Thus, according to peer-reviewed research of Keiko’s release project, and contrary to claims by anti-captivity groups,^[72] Keiko’s release was not a success.^[73]

Keiko’s legacy points to a profound lesson when assessing the ethics and legality of captive cetaceans — the power of one’s individual learning history.^[74] The longer an animal is under zoological care, the more likely it will form relationships with human caretakers and its normative environment, thereby shaping behavior and complicating the probability of a successful reintroduction into the wild.^[75] Given a cetacean’s social complexity and ability to form intricate relationships, the strength of the human-cetacean bond, once formed, is extremely difficult, and perhaps unethical, to fully extinguish.^[76] Moreover, under U.S. Standards of Release, regulatory agencies would have likely never approved Keiko’s release from U.S. waters precisely for the aforementioned reasons.^[77]

Cetacean Sanctuaries: A Natural Existence or Unknown Welfare Consequences?

The AWA sets the minimum housing and husbandry requirements for cetaceans.^[78] However, AWA standards and enforcement by APHIS are often criticized as being too lax to sufficiently provide for a cetacean’s unique needs.^[79] Some zoos and aquariums are accredited by professional organizations such as the Association of Zoos and Aquariums (AZA) and the Alliance of Marine Mammal Parks and Aquariums (AMMPA).^[80] Accreditation raises the bar from the minimum AWA standards by implementing heightened enrichment criteria, husbandry training, and space and environmental complexity requirements.^[81] However, not all U.S. facilities housing cetaceans meet or maintain accreditation.^[82]

Social media campaigns, documentary films, and legal challenges by anti-captivity groups have given rise to a push to relocate long-term captive cetaceans to seaside sanctuaries.^[83] Conceptually, proponent groups suggest sanctuaries act as retirement facilities for captive cetaceans by offering a compromise between concrete pool enclosures with entertaining performances on the one hand and full-release attempts, as seen with Keiko, on the other.^[84]

Nonetheless, as netted ocean enclosures, if sited in U.S. waters, cetacean sanctuaries must meet governmental sea pen standards.^[85] Thus, the only distinguishable aspect of a cetacean “sanctuary” from a netted sea pen is a set of ethics that seeks to mimic a cetacean’s natural existence.^[86] As such, tension exists between the philosophical ideals of what sanctuary organizers define as a “natural existence” and the practical realities of ensuring the long-term welfare of a cetacean once transported to a sanctuary setting.^[87]

For instance, on June 28, 2023, the Global Federation of Animal Sanctuaries (GFAS), a non-profit group certifying “true sanctuaries,” released its accreditation standards.^[88] Generally, GFAS standards seek to house cetaceans in expansive naturalistic enclosures, implement a strict no-breeding policy, limit the public’s interaction with sanctuary residents (i.e., no touching, feeding, or swimming with animals), espouse a donation-based business model, and, in some cases, decrease animal training.^[89]

However, GFAS standards fail to cite peer-reviewed studies or a history of best practices to support its criteria.^[90] Sanctuary proponents responsible for developing and implementing GFAS standards have fervently opposed the zoological and aquaria community for decades and, therefore, generally lack professional expertise in zoological animal husbandry, behavior, and training.^[91] Thus, it is entirely unknown if the current standards that set cetacean sanctuaries apart from accredited zoos and aquariums equate to best welfare practices.^[92]

For example, GFAS standards prioritize replicating a vast natural ocean habitat.^[93] On its face, because of the vastness of the ocean, maximizing a cetacean’s naturalistic living space is an ideal policy.^[94] However, similar to hypotheses of Keiko’s release discussed above, upon closer scrutiny, it appears the GFAS maximum-naturalistic-space policy is misguided in its assumption that a long-term captive cetacean will tap into its instinctual genetics, thereby breaking from a learned behavioral history with its normative environment and relationships, and simply be “happy” living in the ocean.^[95] Thus, while one does not seek to defend the status quo concrete habitat design of several zoological facilities, one can challenge the assumption that any given cetacean, regardless of its behavioral or medical history, will seamlessly thrive once transported to a naturalistic habitat.^[96]

In addition to requiring maximum naturalistic space, GFAS standards require a strict no-breeding policy.^[97] Again, on its face, no-breeding is a sound sanctuary policy, as it would undoubtedly lower the future population of captive cetaceans, thereby furthering anti-captivity objectives.^[98] However, on an ethical level, denying an entire class of cetaceans the enriching biological and behavioral experience of breeding or calf rearing entirely contradicts the objectives of providing them with a natural existence.^[99] Thus, a strict no-breeding policy fundamentally undermines the actual welfare of living cetaceans for the perceived benefit of those never born.^[100]

Further, on a practical level, a strict no-breeding policy may carry substantial negative welfare impacts, considering the only means of implementation is to either 1) sex segregate the population, or 2) administer hormonal birth control.^[101] Very few studies exist to support long-term sex segregation of cetaceans.^[102] However, what is clear, especially where an animal can chemically, visually, or auditorily sense a member of the opposite sex, is that engaging in mixed-sex groups is an essential aspect of a cetacean’s natural existence.^[103] Alternatively, the use of hormonal birth control relies on the ingestion or implantation of pharmaceutical medications to suppress female ovulation, which is costly and requires trained staff to administer it safely.^[104] Altrenogest (Regu-mate) is one of the most commonly used short-term contraceptive medications in bottlenose dolphins, belugas, orcas, and Pacific white-sided dolphins.^[105] However, altrenogest is approved and intended for use in horses, so few studies exist to support its long-term or indefinite use as a hormonal birth control in cetaceans.^[106]

Putting aside the current need to develop research-supported best practices when codifying cetacean sanctuary standards, might efforts to create seaside sanctuaries in U.S. waters be, nonetheless, frustrated by the MMPA’s and the ESA’s general prohibition against “take”?^[107] For example, in March 2023, before her death from chronic illness, Miami Seaquarium announced its intention to relocate its 56-year-old killer whale, Tokitae (also known as Lolita), to a seaside sanctuary in her native waters off the coast of Washington.^[108] According to updates made by animal rights groups responsible for establishing Tokitae’s seaside sanctuary, NOAA Fisheries, in its preliminary permitting discussions, was especially concerned with the potential harm, such as disease transmission, Tokitae may cause to the nearby endangered Southern Resident killer whale population.^[109] NOAA Fisheries’ concern with disease transmission as a potential “taking” of an endangered species raises an intriguing question and conceivable obstacle to the future creation of U.S.-based cetacean sanctuaries.^[110]

Conclusion

Irrespective of one’s position in the debate on cetacean captivity, one thing is clear — it is much more complicated than mainstream narratives suggest. Moving forward, U.S. law should strive to align a cetacean’s legal status from an antiquated position of mere property to one that more accurately reflects the animal’s sentience and intrinsic value. Also, legal and ethical considerations of zoological cetaceans should respect an animal’s individual behavioral and medical history while carefully scrutinizing philosophical ideals and anthropomorphic connotations of what it means for a cetacean to be “captive,” “free,” or live a “natural existence.” Last, like other zoological welfare and husbandry standards, regulators should demand that sanctuary organizers provide and implement cetacean sanctuary standards supported by peer-reviewed research and best welfare practices.

This column is submitted on behalf of the Animal Law Section, Ashley Baillargeon, chair, Macie J. H. Codina, editor, and Ralph A. DeMeo, special editor.