A Legal Victory and a Strong Message

Beluga whales are the large, white, rubbery-looking dolphins found in Arctic seas in the Northern Hemisphere. Their whimsical faces and white, supple bodies make them a favorite of aquariums around the world. Unfortunately, the trade in captive beluga whales, like dolphins and orcas, is growing tremendously as new aquariums are being built, especially in Asia and the Middle East. Beluga whales require special conditions, including chilled seawater, and they still do not thrive - nor are they ever likely to - in small tanks in captivity.

Hence the proposal in June 2012 by the Georgia Aquarium to import 18 beluga whales caught in Russia to replenish the captive population in the US. The Georgia Aquarium itself lost two newborn beluga whales that died shortly after birth. Just in the past month, two adults have recently died at SeaWorld and the Georgia Aquarium. Almost half of all beluga whales brought into captivity in the US have already died.

On Sept. 28th, in a huge win for those of us who believe that beluga whales should not be removed from the wild for captivity, federal Judge Amy Totenberg denied the Georgia Aquarium the permit they sought to import the wild-caught beluga whales from a population in Russia that is severely depleted.

"This federal court ruling is a stunning rebuke to every captive whale facility that tries to profit off ripping belugas, orcas and other marine mammals from the wild, despite cruel capture methods and damage to their populations," commented David Phillips, Director of the International Marine Mammal Project (IMMP) of Earth Island Institute. IMMP opposes keeping cetaceans in captivity.

The court victory has many ramifications. Russia, along with Taiji, Japan, and Cuba, is becoming a major source of captive marine mammals, as other sources around the world have either been depleted or closed to the dolphin captivity trade by activists and governments.

In 2012, the Georgia Aquarium, representing the three SeaWorld parks, the Shedd Aquarium of Chicago, and Mystic Aquarium, applied for the beluga import permits to the US National Marine Fisheries Service (NMFS), claiming the belugas would help improve the genetic diversity of captive belugas in US aquariums and be a boon to the viewing public. (SeaWorld recently announced they would no longer accept any of the beluga whales from the Georgia Aquarium, but were active from the beginning in the requested permit.)

NMFS, however, denied the permit request in August 2013 after long deliberations, the first time in the history of the Marine Mammal Protection Act (MMPA) that NMFS denied an import permit for the captive dolphin trade. NMFS received approximately 9,000 public comments about the permit request, most of them opposed.

The NMFS decision was based on the science behind the beluga import: The agency scientists expressed concern for the depleted population of beluga whales in the Sea of Okhotsk and how the catching of 18 belugas would harm that population, already threatened by pollution and local hunting. (Earth Island Institute and our coalition of groups that are active with the NMFS lawsuit have filed a petition to list this population of beluga as "depleted" under provisions of the MMPA. A decision on the petition is still pending. If the population is listed as depleted, the MMPA would prohibit import of any belugas from this area in the future.) NMFS further raised the concern that the import would spark other aquariums to catch beluga whales in Russia for their own collections of marine mammals, and noted that, contrary to the MMPA, five of the 18 beluga appeared to be too young (estimated 1.5 years old), having been separated from their mothers while still dependent.

Georgia Aquarium took the rejection with an ill will, filing a lawsuit against NMFS in court in Atlanta in 2014, claiming the permit denial was "arbitrary and capricious." Their lawyers went further in accusing NMFS of "cooking the books" to come up with their population numbers for beluga in Russia. Earth Island's IMMP joined Animal Welfare Institute, Cetacean Society International and Whale & Dolphin Conservation in intervening in the case in support of the NMFS position.

What was especially heartening to activists is that Judge Totenberg took on the Georgia Aquarium rhetoric, showing how hollow their arguments were from the start. Rarely does a judge dress down attorneys arguing cases before them - Judge Totenberg made an exception, as the Georgia Aquarium's lawyers' rhetoric was so inflammatory and very typical of the way the captivity industry treats opponents with complete disdain and false claims.

"Like something out of a Russian spy novel.... Georgia Aquarium launched a wholesale attack on NMFS, accusing the Agency of `cooking the books' to fabricate its rationale in a deliberate and conspiratorial effort to deny Georgia Aquarium's import permit," Judge Totenberg caustically wrote in her decision against the aquarium. "Having carefully reviewed the administrative record in this case and all parties' arguments, the Court finds that NMFS properly reviewed Georgia Aquarium's permit application."

Judge Totenberg further noted that the Georgia Aquarium lawsuit "casts a wide net but catches little of substance". She further stated that, "everyone involved but GA Aq agrees that human activity is ...significant." She finally concluded by calling the Aquarium's arguments "applesauce."

The attacks and aggressiveness by Georgia Aquarium are right out of the playbook of SeaWorld and other captive industry supporters. They are personal, vindictive, and deliberately hostile to anyone raising questions - scientists, former staff members or environmentalists. It is nice to see, for once, one of the industry groups get called on their vicious and empty attacks.

Some have expressed concerns about what happens to the 18 beluga whales, now in a holding facility in Russia. Our organizations did not put the 18 beluga whales in this fix. The Georgia Aquarium and the Russian captors did by having the beluga caught and put in captivity before the aquarium applied to NMFS for an import permit.

The proper response by the Georgia Aquarium would be to fund the rehabilitation and release of these captive beluga whales back into the wild. Such releases have been done for many dolphins over the years and with Keiko, the orca star of the hit movie "Free Willy." There is no reason why a rehab and release program for these beluga could not restore them to their home waters.

Now, at least, this case will help us to make sure the US will not become a major market for overseas groups to exploit by catching more wild dolphins and other cetaceans. Indeed, we suspect that, had Georgia Aquarium prevailed with this beluga whales import, Russian orcas would be next on the agenda for the US captive industry to import. Several facilities have expressed interest in having captive orcas for display, such as the Six Flags Discovery Kingdom in Vallejo, CA. Russian captivity agents have captured a number of wild orcas in recent years, opening up the first orca display in Moscow earlier this year.

We need to work even harder to shut down the captive industry and stop the captures of marine mammals from the wild altogether. Environmental groups have made a lot of progress, shutting down the captivity trade and captures in the United States' waters and, more recently, in the Solomon Islands. We have worked with many nations and local activist groups to end captivity, such as in India and in Switzerland. Every step is important, and the winning of the beluga lawsuit helps us immensely to prevent the lucrative United States captive industry become a major market to encourage further wild captures.

Our legal victory also sends a strong message to the captive industry and other nations that captures of these animals is a violation of scientific protocols and inhumane in the extreme.

Make no mistake: Capturing wild belugas, orcas, and dolphins is a terrible invasive and inhumane process, where many animals die from shock and injuries.

"The US NMFS deserves credit for standing up to this sham proposal from the captivity industry," added David Phillips. "And thankfully the court was not swayed by the Georgia Aquarium's phony arguments and cruel and unscientific raid on wild whale populations."

Our thanks to our partners Animal Welfare Institute, Cetacean Society International, and Whale & Dolphin Conservation.

A special thanks to our lawyers, Attorneys Tyler Sniff and Don Stack with the law firm of Stack & Associates PC, Atlanta, GA. They did an excellent job of arguing in support of the NMFS decision. And thanks to all our supporters who have helped move this case to a successful conclusion for the beluga whales.