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Entitlement and the Georgia Aquarium: Hearing reveals the privilege of Public Display Industry

In the ongoing lawsuit entangling Georgia Aquarium, Inc., the U.S. National Marine Fisheries Service (NMFS), and a coalition of environmental and animal protection organizations that includes WDC, a hearing was held in the federal district court in Atlanta on August 14th. This hearing addressed the merits of legal proceedings initiated by Georgia Aquarium upon the rejection of its permit application to import 18 belugas captured from the wild in the Russian Far East. WDC was present, and an attorney for WDC and its Co-Intervenors presented arguments to the court in support of NMFS’ permit application denial, which found that Georgia Aquarium had not met several of the statutory and regulatory permitting conditions required to approve its controversial request.

NMFS denied Georgia Aquarium’s permit application two years ago in August 2013.  The application was denied on the grounds that Georgia Aquarium did not meet permitting requirements when it failed to show that the import would not likely contribute to additional removals of beluga whales from the wild and would not adversely affect the species or stock, among other deficiencies

Georgia Aquarium filed an appeal in the federal district court in Atlanta for judicial review at the end of September 2013; just over a month after the decision was issued, launching a legal challenge against NMFS, NOAA, and the U.S. Department of Commerce. In January 2014, WDC, along with the Animal Welfare Institute (AWI), Earth Island Institute (EII), and Cetacean Society International (CSI)—all of which were instrumental in persuading NMFS to deny the application—filed a motion to join the case as parties in defense of NMFS’ decision and were granted status as Intervenors in April 2014.

What has ensued since then has been a series of legal proceedings to examine and adjust the record of documents upon which the case is judged, as well as legal briefings by NMFS and Intervenors with arguments supporting the denial, and legal briefings by Georgia Aquarium containing its grievances.

The hearing showcased quite prominently and conspicuously Georgia Aquarium’s surprise and indignation that its permit application was denied in the first place. Technically, Georgia Aquarium argues that NMFS’ acted ‘arbitrarily and capriciously’ under the mandates of the U.S. Marine Mammal Protection Act (MMPA) in denying the import permit request for the public display of these 18 belugas and asks the Court to order that NMFS grant it a permit. Practically, however, Georgia Aquarium is moaning and whining that it didn’t get its way.

On its face, Georgia Aquarium believes that because every other import permit for public display has been rubber stamped by NMFS in the past that the agency was derelict in its duty this time to automatically approve their request. According to the Aquarium, it has met every condition required to bring these belugas into the U.S., and especially because the request has been made in the name of conservation and education—but in name only

Why should Georgia Aquarium not receive carte blanche approval too, as so many facilities have in the past? Isn’t this business as usual, where public display facilities shop and trade whales and dolphins across the globe at their own discretion as they have done for decades, moving them freely between facilities who, upon acquisition, become de facto private assets?

The lawyer for Georgia Aquarium, a well-known and well-oiled lobbyist that runs the halls of Congress on behalf of SeaWorld and other members of the Alliance for Marine Mammal Parks and Aquariums, spoke forcefully at the hearing about entitlement. He used that specific word three times. In essence, he stated that the Aquarium is entitled to bring these belugas into the U.S.; is entitled to rely on consistent agency practice; and entitled to what everyone else has gotten in the past—approval.

This is, indeed, the first application for an import permit for public display under the MMPA that has not been granted by NMFS, and this fact and many other reasons lends to its controversy. However, every permit request should be evaluated on its own merits, and despite Georgia Aquarium’s protestations, this permit request was a ‘big deal’ and far from standard practice. NMFS had not received an application to capture wild whales or dolphins from US waters, or to import those that had been recently captured in foreign waters, in more than 20 years.

Most of the oral arguments presented by both sides centered on the Court’s interest in clarifying the issue of sustainability regarding the impact that the removals of the 18 belugas had on the wild population of belugas in Russia, which necessarily involved discussions about technical marine mammal population management algorithms such as PBR (Potential Biological Removal). Most of the arguments by the Aquarium focused on how NMFS should have relied solely on this PBR mechanism to determine that the capture and import of 18 belugas was somehow justified because the number of belugas captured was allegedly below the limits prescribed by the Aquarium’s own PBR calculation. In simple terms, PBR calculates the number of individuals that could be removed from a stock (not including natural mortalities) of marine mammals while allowing that stock to continue to maintain a sustainable population.

This narrow focus on numbers that could be taken from a population seemed to backfire on the Aquarium. Even if NMFS based its decision to deny the permit solely on PBR, which it did not, NMFS could have still rationally denied the permit application because the numbers of belugas captured in Russia for the years in which 16 of 18 of ‘their’ belugas had been captured (2010 and 2011) exceeded the Aquarium’s own PBR calculation, indicating that these captures—based on an algorithm alone—were not sustainable. However, PBR calculations were only part of the picture that NMFS relied upon to determine that the Aquarium’s permit request was neither sustainable nor compliant with the MMPA.

PBR and other population management tools at best work on estimates of marine mammal populations and therefore might tell us ‘how many’ individuals could be removed from a population without potential detriment. However, these tools do not tell us whether they should be removed, or whether the Georgia Aquarium should be associated with an unsustainable and cruel trade that continues to threaten wild beluga populations in the Sea of Okhotsk in Russia.

The very fact that a purported U.S. institution of conservation and education is even associating with the capture and trade of a most-likely depleted population of wild belugas is simply unconscionable. The attorney for WDC and its Co-Intervenors stated at the hearing, “as all three [Intervenor] representatives here today argued at the public hearing in Silver Spring, Maryland, in 2012, and as the Agency recognized through the denial, the interests of the public display industry in furthering its captive breeding program was the prime consideration for this application, not the interest of the likely depleted data-deficient stock of marine mammals that’s subject to an ongoing, unsustainable, and increasing live-capture trade.”

Even if the Aquarium were to attempt to amend its permit application and reattempt to meet statutory and regulatory guidelines, it would still be left with the stark reality that the beluga captures and trade continue in the Sea of Okhotsk. Indeed, in 2013, Russian scientists, including those funded by Georgia Aquarium, revealed that capture operations had grown to include additional operators working to cash in on the growing demand for belugas worldwide. Where the Georgia Aquarium suggested in their permit application that no beluga whales had died during the capture operations that procured ‘their’ 18 belugas, new research documented that at least 34 individuals (and most likely more) had perished during capture operations the following year. As a result, the Aquarium can never substantiate its claims of sustainability, even if it tried to import fewer belugas, or different belugas (e.g., ones that may not have been nursing or dependent upon their mothers).

Live capture for public display is one of the most serious threats facing this likely-depleted stock of beluga whales in the Sea of Okhotsk. Issuance of a permit would not only undermine the statutory requirements of the MMPA, it would signal U.S. endorsement of an unsustainable and expanding international trade in live-captured beluga whales. The two decades that have passed since U.S. facilities last sourced cetaceans directly from the wild for public display reflects in part growing scientific recognition that cetaceans suffer significant trauma when captured and removed from their social group. This particular population of beluga whales has yet to recover from heavy hunting in the past.

The Georgia Aquarium and its breeding consortium partners would not dare seek to procure belugas from US waters, say from certain Alaskan populations, although they certainly could have tried to. Instead, they searched in foreign waters through an established trade channel where belugas were expendable and in ready supply. Over 320 belugas have been captured and exported from Russia over the past 20 years, most of them to China.

And instead of seeing their complicity in perpetuating these cruel captures and trade, they conducted a few years of studies that coincided with the captures of these 18 belugas—just enough to claim they did their due diligence in assessing the sustainability of their captures—and called it ‘conservation.’ The Aquarium and its partners have committed no additional funds to further research in this region, and they have pulled out completely as they wait for word from the court whether their appeal will be successful.

The judge at the hearing noted that the Aquarium has tried to flip the burden of proof to NMFS, forcing the regulatory agency to prove that the capture and import of belugas from Russia is not only sustainable, but humane, before it may deny an application. In fact, that is Georgia Aquarium’s responsibility under the MMPA and its regulations, and it failed miserably. In the past, NMFS has been hamstrung by a general lack of information from public display permit applicants, making it extremely difficult to deny imports of whales or dolphins, even from dubious sources.

Tracking the global capture and trade in whales and dolphins is extremely difficult, and WDC and NMFS are reliant upon inadequate reporting mechanisms and information voluntarily provided by private commercial facilities worldwide and detailing capture methods, or the provenance of individuals. But this request, involving the commissioning and capture of belugas from the wild—which in itself is a direct violation of permitting regulations where permission is to be sought before the activity is actually undertaken—involved so many breaches of statutory and regulatory rules and procedures that NMFS was beholden under the law to deny the permit.

Indeed, public display of marine mammals is a privilege—not a right. Held to the highest standards, the public display (captivity) of marine mammals under the U.S. MMPA is an exception to the very stringent protections that prevent their capture, killing, and trade.

Not once during the hearing did the Aquarium step back and question whether it should be involved in this trade—missing this point completely—as it argued it was entitled to the lives of 18 belugas that continue to languish in a facility on the Russian Black Sea. Had the Aquarium and its partners not placed an order for those belugas? The aquarium argued that these, and other belugas, would have just been captured and shipped somewhere else, perhaps to a sub-standard facility. The Aquarium is not ‘rescuing’ these belugas under the rationale that they would have been captured anyways, and did not ‘sustainably’ capture them in the interest of education and conservation. The Aquarium has only contributed to the expansion of this trade, threatening to open the doors to a US market that should be permanently closed to such sordid dealings.

The Georgia Aquarium abandoned precaution and protection in the name of entitlement where it obstinately, and perhaps unwittingly, argued for the continuing extraction of belugas from Russia as it tried desperately to convince the judge of the sustainability of a cruel trade. Focused on numbers and figures, the Aquarium could not see that its arguments merely justify an ‘allowable’ death toll which can never add up to education, or conservation. At risk is a global trade in whales and dolphins that is poised to flood open and unprotected markets, and in the U.S., the erosion of the most precious tenet of the MMPA—the precautionary principle. When there is imperfect information about the status of a species or population, we must always err on the side of precaution, and always on the side of protection.

NMFS’ decision should stand, and WDC will continue its updates when the Court issues its decision over the course of the next several months.