The appeal by Georgia Aquarium to overturn and invalidate the decision to deny its request for a permit to import 18 beluga whales from Russia is officially closed. On September 28th, the federal district court in Atlanta officially dismissed Georgia Aquarium’s motion for summary judgment, which practically means the original import permit denial issued by NMFS is upheld.
More specifically, in addressing specific charges made by the Aquarium in its appeal, the court found that NMFS’s permit denial was consistent with the purposes and requirements of the U.S. Marine Mammal Protection Act (MMPA), and therefore did not act arbitrarily or capriciously. In fact, the court strongly rejected all of the Aquarium’s arguments seeking to overturn NMFS’ original permit denial.
While we believed the facts of the case would prevail, we are encouraged by the court’s decision to uphold not only the original decision to deny the import permit, but reaffirm the integrity of the MMPA and its precautionary principles. Most importantly, the court found that NMFS properly reviewed the Aquarium’s permit application through the lens of the MMPA’s conservative and precautionary purposes, with the primary focus upon the regulatory issuance criteria designed to ensure that the requested import would not allow the Sakhalin-Amur beluga population to diminish beyond a sustainable level.
It is also important to note that within this decision is the official acknowledgement that the capture and trade for public display contributes to the depletion of whale and dolphin populations worldwide still stands.
As we maintained in our original comments to NMFS in response to the Georgia Aquarium’s application for the import permit, the aquarium failed in its burden under the MMPA to demonstrate that salient statutory and regulatory criteria necessary to issue the permit had been met. Quite simply, the court upheld NMFS’ determination that the Georgia Aquarium did not meet statutory requirements outlined in regulatory permit issuance criteria, including the failure to prove that the proposed activity by itself or in combination with other activities would not likely have a significant adverse impact on the species or stock; that the requested import would not likely result in the taking of belugas beyond those authorized by the permit; and that the belugas to be imported were not nursing at the time of taking.
According to the decision, there were too many material unknowns about the potential negative impacts of the removal of these belugas, essentially reaffirming decades of congressional and legislative history clarifying the MMPA’s commitment to a precautionary approach. These regulatory requirements enshrine the principles that the management of marine mammal populations be carried out with the interests of the animals as the prime consideration. And they are clear in their requirement that a very strict burden is placed upon those seeking permits. The court importantly acknowledged that the “legal soundness of NMFS’ decision to deny Georgia Aquarium’s permit is clearly echoed in the MMPA’s history,” essentially reaffirming the precautionary principles embedded in the statute and its regulations.
In the end, Georgia Aquarium’s arguments were, as noted by the court, a “smoke and mirrors attempt” to shift the burden of proof to NMFS. We praise the court for confirming what we already knew– this permit application failed to meet any of the regulatory burdens and was an unfortunate attempt to falsely promote profit and entertainment at the expense of conservation.
We do not know for sure what will happen to the 18 belugas that were slated for the United States. It is possible they will go to public display facilities in China, Russia, or elsewhere. In responding to concerns that these beluga whales would be ‘better off’ in a ‘nicer’ facility in the United States, as opposed to a substandard facility elsewhere, we note that it is the Georgia Aquarium and other facilities that have put these whales in this unfortunate position.
We, as advocates and conservationists, cannot support a trade in wild-caught cetaceans by allowing the U.S. to open its doors to these beluga whales captured in Russian waters. This would have set a dangerous precedent and led to even more whales being captured, as NMFS and the court have recognized. This decision effectively closes down the U.S. as a market for Russian wild-caught belugas, at least for now. Furthermore, even if these 18 whales had come to the U.S., more belugas would have simply been captured later and shipped to China or elsewhere to fill other markets, and filling the vacancies left behind.
We must confront the cycle of supply and demand, and stop it where we can until it becomes siphoned off completely. Unfortunately, it is the individual whales and dolphins caught in this vicious cycle that continue to suffer. Since 1992, when Canada ceased its live capture operations, Russia has been the primary supplier of belugas to the public display industry. Beluga captures are ongoing, and we are trying to stop the trade: supporting a market in the U.S. is simply not acceptable.
The Aquarium could choose to appeal the court’s decision within 60 days. Or, it could seek to import beluga whales from other facilities under a separate permit. Whatever it decides to do, we hope that it will abandon its efforts to undermine beluga populations abroad by focusing its attention on true conservation and education initiatives.