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Reflections On Our Key Beluga Lawsuit Victory

| Mark J. Palmer, International Marine Mammal Project
Topics: Dolphins, International Whaling Commission, SeaWorld

We at Earth Island and activists dedicated to ending the captivity of cetaceans are celebrating the victory in federal court in Atlanta.  In a huge win, Judge Amy Totenberg denied the Georgia Aquarium the permit they sought in order to import 18 wild-caught beluga whales from a population in Russia that is sorely 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,” stated David Phillips, Director of the International Marine Mammal Project of Earth Island Institute.

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 trade by activists and governments.

The Georgia Aquarium, representing the three SeaWorld parks, the Shedd Aquarium of Chicago, and Mystic Aquarium, applied for the permit to import 18 wild caught beluga whales. (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.)  The US National Marine Fisheries Service (NMFS) denied the permit request, 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 on the permit request, most of them opposed. 

The NMFS decision was based on the science behind the beluga import:  They 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 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 provision of the MMPA.  A decision on the petition is still pending.) 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, several of the belugas appeared to be too young (estimated 1.5 years old), having been separated from their mothers.

Georgia Aquarium took the rejection with an ill will, filing a lawsuit against NMFS in court in Atlanta, 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.  

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 lawyer’s 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 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.  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.  They will likely be sold to someone else, although the Georgia Aquarium could appeal the case and try to overturn Judge Totenberg’s decision.  Earth Island and our allies, who intervened in the case, which includes the Animal Welfare Institute, Cetacean Society International and Whale & Dolphin Conservation, will be standing by with our lawyers to continue our support of the NMFS decision in case that happens.

Our organizations did not put the 18 belugas into this fix.  The Georgia Aquarium and their allies did by having the beluga whales caught in Russia before they applied for an import permit. 

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 whale import, that 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 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.  We have made a lot of progress, shutting down the captivity trade and captures in the United States 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 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,” noted 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 of 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.


Can you help us fight the multi-billion dollar captivity industry with a donation to our work?  We have spent much on legal fees and actively organizing opposition to the Georgia Aquarium permit.   We will likely have further costs to Earth Island, especially if the aquarium appeals the case to a higher court.  Engaging in lawsuits is an expensive prospect, but needed to protect belugas, orcas, and dolphins around the world.

Your support is what makes our efforts successful, and we thank you for it. Donate HERE.