BILL ANALYSIS Ó
AB 2140
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 2140 (Bloom) - As Amended: March 28, 2014
SUBJECT : Marine Mammals; Protection of Orcas (Killer Whales)
SUMMARY : Makes it unlawful to hold in captivity, or use, an
orca for performance or entertainment purposes, or to capture,
import, export, or breed an orca in captivity. Specifically,
this bill :
1)Makes it unlawful to do any of the following:
a) Hold in captivity, or use, a wild-caught or
captive-bred orca for performance or entertainment
purposes.
b) Capture in state waters, or import from another
state, any orca intended to be used for performance or
entertainment purposes.
c) Breed or impregnate an orca in captivity.
d) Export, collect or import from another state the
semen, other gametes, or embryos of an orca held in
captivity for the purpose of artificial insemination.
2)Makes a violation of the above prohibitions punishable as a
misdemeanor and a fine of up to $100,000 or six months
imprisonment, or both the fine and imprisonment.
3)Exempts from these prohibitions an orca that is held for
rehabilitation after a rescue or stranding, or for research
purposes, provided the orca is returned to the wild whenever
possible or held in a sea pen that is open to the public and
not used for performance or entertainment purposes.
4)Requires that orcas held for performance or entertainment
purposes prior to the enactment of this bill shall be
rehabilitated and returned to the wild where possible, subject
to any required state or federal permits. Requires if it is
not possible to return the orca to the wild, based on the best
available science, then the orca shall be transferred to a sea
pen. Allows the orca to be held in existing enclosures until
a sea pen is established.
5)Defines various terms for purposes of this bill, including
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"performance or entertainment purposes" which is defined to
mean any routinely scheduled public exhibition that is
characterized by music or other sound effects, choreographed
display or training for that display, or unprotected contact
between humans and orcas.
EXISTING LAW :
1)Under the federal Marine Mammal Protection Act (MMPA),
prohibits the take of any whale species without specific
authorization. Allows permits to be issued for take of a
whale from the wild for a limited number of purposes,
including for scientific research, for purpose of public
display, or for enhancing the survival or recovery of specific
stocks. Authorization can also be given for incidental take
of marine mammals in the course of conducting certain
activities. The National Marine Fisheries Service (NMFS) is
responsible for enforcement of the MMPA. Requirements for
permits for public display include that the entity offers a
program for education or conservation based on professionally
recognized standards of the public display community, is
registered or holds a license under the Animal Welfare Act,
and maintains facilities open to the public on a regularly
scheduled basis.
2)Governs captive care, handling, treatment and transportation
of marine mammals held for public display, and maintenance of
marine mammal exhibits, under the federal Animal Welfare Act.
The Department of Agriculture, Animal and Plant Health
Inspection Service is responsible for enforcement of the
Animal Welfare Act. Standards for maintenance and structure
of orca pools include: minimum horizontal dimension, volume
and depth requirements; a plan of care approved by a
veterinarian; and that animals be housed with at least one
compatible animal of the same or biologically related species.
Examples of pool dimensions include that a pool holding two
orcas must have a minimum diameter of 48 feet, a depth of 12
feet, and a minimum volume of 615 meters.
FISCAL EFFECT : Unknown
COMMENTS : Killer Whales (Orcinus orca), also known as orcas,
are toothed marine mammals belonging to the order Cetacea, which
includes whales, dolphins and porpoises. As members of the
Delphinidae family, they are actually more closely related to
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dolphins than true whales. Orcas are wide ranging apex
predators found in most oceans of the world. They are known to
be highly intelligent and highly social animals, living in
matrilineal family groups which are among the most stable of any
animal species. Family groups of orcas form pods that live and
hunt together, with male and often female offspring staying with
their mothers for life. They are one of the world's fastest
moving marine mammals, able to swim at speeds approaching 35
miles per hour, and often covering 100 miles or more per day.
Orcas range in size from 16 to 30 feet in length, and may weigh
as much as 20,000 pounds (males average 6 tons and females
average 3 to 4 tons). Their sophisticated hunting techniques
and vocalizations, which often include specific dialects unique
to a particular pod, have been described by scientists as
manifestations of culture. According to NMFS, the life
expectancy for male orcas in the wild is on average 30 years, up
to a maximum of 50-60 years, and for female orcas on average 50
years, with a maximum life span of 80-90 years. NMFS indicates
that most information on orca life history comes from long term
studies of wild populations in the eastern North Pacific Ocean.
Research off the coasts of Canada and the United States have
identified three main types or sub-species of orcas in the
Pacific: 1) Resident orcas (in coastal northeast Pacific
including Puget Sound area), the diet of which consists
primarily of fish, and which live in complex, cohesive family
groups called pods; 2) Transient orcas, that travel in smaller
groups and roam more widely along the coast from Alaska to
California and live mostly on marine mammals, and 3) Offshore
orcas that feed primarily on schooling fish and sharks, but may
also eat marine mammals. This third type travel mostly in large
groups and were not discovered until 1988. Two populations of
orcas have received special protection, the southern resident
population which is listed as endangered under the federal
Endangered Species Act, and the AT1 transient population which
is classified as depleted. All populations of orcas are also
protected under the MMPA.
This bill addresses the controversial practice of keeping
captive orcas in marine parks for public entertainment purposes.
Currently, there are 45 orcas in captivity in the world, 26 of
which were born in captivity and 19 of which were captured from
the wild. About half of the orcas in captivity are owned by
SeaWorld, which has three marine parks in the United States.
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The author of this bill notes that "after the tragic death of
SeaWorld trainer Dawn Brancheau, the public has begun to
question the moral justification for keeping orcas in captivity
for our general entertainment. After humans, killer whales are
the most socially and ecologically complex species on the
planet. Scientists studying killer whales in the wild have
documented the close social bonds these animals share?.Killer
whales are capable of traveling 100 miles per day and are found
in all the world's oceans, yet are allowed to be held in small
concrete tanks. As a state we should lead the way in ending
captivity for entertainment purposes?by capture or captive
breeding programs here in California?.If we truly want to help
orcas, then we should focus our efforts on restoring habitat in
the wild and protecting our oceans."
The main concerns and assertions the author and sponsors of this
bill raise with regard to keeping orcas in captivity include the
following:
1.The orca's natural environment, which includes the vast open
oceans, cannot be replicated in a marine park environment.
The species' high intelligence, large size, and complex social
structure make orcas unsuitable for captivity. Reported
incidents of aggression among whales in captivity and
self-inflicted injuries are signs of the stress and suffering
experienced by these animals. Adverse physical and
psychological effects are evidenced by unnatural behaviors
such as ramming, dental problems from gnawing on metal gates,
repetitive swimming in circles, and dorsal fin collapse, which
is experienced by virtually all male orcas in captivity, but
only 1% of orcas in the wild.
2.Proponents assert requiring orcas to perform tricks for human
entertainment is demeaning and disrespectful to these highly
intelligent animals. The unnatural, artificial groupings that
orcas are put into in captivity causes stress because it is
contrary to the experience of orcas in the wild, where they
stay in cohesive, matrilineal family groups for life. When
dominance issues arise, the animals also do not have a means
of escape as they would in the wild.
3.Orcas in captivity have shorter life spans on average than
wild orcas. Note: This issue is debated in the literature.
According to NMFS biologists, prior to the year 2000 the
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evidence showed that the life expectancy of orcas in captivity
was significantly lower than those in the wild. However,
according to NMFS, since the year 2000, survivorship
statistics have improved for captive orcas and are now
comparable to those in the wild. Other scientists and
supporters of this bill disagree with that conclusion and
counter that not all deaths of newborn orcas are included in
the industry's statistics. They maintain that the maximum age
for captive orcas is the mean age for wild ones.
4.Training of orcas in captivity poses serious risks to humans.
Since orcas have been kept in captivity, four persons have
been killed, and other serious injuries to trainers have been
reported. In contrast, there are no confirmed reports of orcas
seriously injuring, let alone killing, humans in the wild.
SeaWorld is currently under an OSHA order that prohibits
trainers from having human contact with orcas unless protected
by a physical barrier. That order is being appealed by
SeaWorld in federal court.
5.Captive breeding programs are also opposed by proponents.
While SeaWorld maintains that they have not captured orcas
from the wild for many years, proponents note they have taken
orcas captured in the wild by others, and the existence of the
entertainment industry for orcas creates continued market
pressure for wild captures. In addition, supporters assert
that whether captive bred or wild captured, orcas are just too
big, too social, too intelligent, and too wide-ranging to be
kept in captivity. Orcas born in captivity are still members
of a species that has evolved over millions of years to live
in the open oceans. Supporters also raise concerns regarding
genetic diversity and inbreeding problems with captive
breeding programs, asserting this may eventually create
pressure to recruit more animals from the wild to address
genetic diversity needs of the captive population.
SeaWorld counters the above arguments with the following points:
1.SeaWorld contends there is nothing wrong with the current
approach to keeping orcas in captivity and that SeaWorld
provides professional and compassionate care to all the whales
it holds, all of which are healthy and have life spans
equivalent to those in the wild. The whales receive a healthy
diet, veterinary care, and adequate exercise, and live in
socially compatible groups. They acknowledge that while
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whales in captivity do not live the same lifestyle as their
wild counterparts, this difference does not translate to
negative welfare of the animals. Banning use of orcas in
performance and entertainment would jeopardize the health and
well-being of the animals which receive stimulation and health
benefits from the trainings and performances. They claim
SeaWorld's positive reinforcement training has become the
model for other zoological institutions.
2.SeaWorld contends banning captive breeding would not be in the
best interest of the whales as it would require separation of
the sexes and deny the whales the experience of having
offspring. They assert their captive breeding program has
been very successful, is carried out according to
internationally recognized zoological standards applicable to
breeding programs, and makes it possible to display killer
whales to the public without collecting whales from the wild.
3.Transferring the whales to sea pens is not a practical
solution and could pose security problems, water quality
concerns, and other risks to the whales and others. They
assert there is no evidence that sea pens would provide a
better environment for the whales.
4.SeaWorld asserts it's care of captive orcas benefits orcas in
the wild, and this bill would diminish the ability of
scientists and researchers to study killer whales in captivity
as the only way to learn how to better ensure the health and
well-being of killer whales in the wild. SeaWorld contributes
to scientific research through its support of the
Hubbs-SeaWorld Research Institute. SeaWorld is also a
recognized leader in marine life rescue and rehabilitation,
and notes that it has rescued thousands of marine animals with
the goal of treating them and returning them to the wild.
5.SeaWorld notes its business provides major economic benefits
to the San Diego region and the state, paying over $5 million
in property tax in 2013 and providing 4,500 jobs during the
peak season. More than 9 million students and teachers have
participated in SeaWorld educational programs.
Scientific Research Issues : One of the arguments for keeping
orcas in captivity is that studies of captive orcas contribute
to scientific knowledge of orca natural history. SeaWorld notes
that research conducted on captive whales at SeaWorld have
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increased scientific understanding of reproductive physiology,
vocalization, development and learning capacity. Researchers
affiliated with SeaWorld have authored numerous published
research studies on killer whales. In addition to research on
killer whale physiology, researchers at Hubbs-SeaWorld Research
Institute have conducted research on bioacoustics, the study of
animal sound production and perception. Additional examples of
research on captive orcas at SeaWorld through Hubbs include:
resting oxygen consumption rates and basal metabolism; studies
of teeth tissue to estimate age of whales; calling behaviors
between mothers and calves; and effects of fishing gear
adaptations such as audible pingers on marine mammals.
Researchers based at Hubbs also conduct research on marine
mammals in the wild, including research on marine mammal
strandings, and have authored field guides and other books.
While there appears to be agreement that past research on
captive orcas has provided insights into cetacean intelligence
and cognition, as well as information about issues such as
reproductive life cycles and acoustics, the continued need and
relevance of captive orca research to understanding of wild
orcas is questioned by some marine scientists. While there may
be greater control in captive settings, the unknown effects of
living in an artificial environment on behaviors and development
can limit the application of such research to animals in the
wild. Some scientists assert that with certain exceptions,
there is little research today that scientists are getting from
captive facilities that could not be gotten from the wild,
particularly with newer technologies now being used for whale
research. Examples of newer technologies include small biopsy
darts, GPS technology, laser range finders, and satellite
tagging. Consequently, it is argued that field studies designed
to broaden understanding of a species' ecology and behavior, in
order to shape conservation efforts, provide more relevant
knowledge than captive studies. The physically restricted
conditions of captivity, the effects of the unnatural captive
environment on animal behavior, the small number of animals
involved, and the limited genetic basis of captive orca
populations, are said to cast doubt on the scientific basis for
using captive animals as models for wild animals, especially
given the increasing sophistication of studies on wild animals
and the greater relevance of data from field studies.
It should be noted that Hubbs-SeaWorld, as described above, is
involved in significant research beyond its research on captive
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orcas, both in California and other parts of the world. Hubbs
is a nonprofit entity that was founded by SeaWorld and receives
5-25% of their annual funding from SeaWorld, in addition to the
use of its marine park facilities and animals for research. It
should also be noted the author of this bill expresses support
for the research and rescue work of SeaWorld and the
Hubbs-SeaWorld Research Institute, and contends these activities
should continue and would not be affected by this bill.
Public Safety Issues : Since orcas have been kept in captivity
there have been four deaths of humans involving captive killer
whales. In 1991, 20 year old trainer Keltie Byrne was killed in
an incident at SeaLand in Canada involving three whales,
including a male orca named Tilikum. The SeaLand facility was
subsequently closed and Tilikum was moved to SeaWorld in
Orlando. In 1999, a visitor to SeaWorld entered Tilikum's tank
after hours and was subsequently found drowned in the tank. In
2009, 29 year old trainer Alexis Martinez was killed by an orca
at Loro Parque in Spain. In 2010, trainer Dawn Brancheau was
killed by Tilikum at SeaWorld in Orlando. In addition to the
deaths there have been a number of reported incidents involving
serious injuries to trainers who survived. SeaWorld has
maintained that the deaths were unfortunate accidents and that
overall the organization has a good safety record and follows
appropriate safety protocol.
SeaWorld was cited by federal OSHA for violating federal safety
standards in the 2010 death of Dawn Brancheau. OSHA issued a
"wilful" violation order against SeaWorld and ordered that
trainers not be allowed in the water with the whales and must be
protected by a physical barrier. SeaWorld appealed OSHA's
decision to an OSHA review commission. The review reduced the
violation classification from wilful to serious, but upheld
OSHA's safety mandates. The Administrative Law Judge (ALJ)
found that SeaWorld knew that training orcas involved inherent
risks to trainers. According to the court decision, between
1988 and 2009 SeaWorld documented 100 incident reports, 12
documented injuries and 1 death. The ALJ found that "no
reasonable person would conclude that SeaWorld was unaware that
working in close contact with killer whales during performances
creates a hazard for its trainers?SeaWorld knew its trainers
were at risk for being struck or drowned by a killer whale."
The court further found that "SeaWorld's reliance on its
trainers to recognize precursors and prevent unpredictable
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behavior by the killer whales runs counter to the requirements
of the Act. The duty of care rests with the employer. An
employer cannot shift this responsibility to its employees by
relying on them to, in effect, determine whether the conditions
under which they are working is unsafe." The court found that
SeaWorld's own incident reports demonstrate its safety program
exposes its trainers to the risks of death or serious physical
injury, and that SeaWorld's training program cannot remove the
element of unpredictability inherent in working with killer
whales. SeaWorld appealed that decision to a Secretary of Labor
discretionary review panel which declined review, allowing the
ruling to stand. That decision was then appealed by SeaWorld to
the U.S. Court of Appeals in the District of Columbia. Oral
arguments were heard in the case in November 2013 and a decision
is pending.
Other Governmental Entities that have banned holding of orcas
for entertainment : At least six countries have banned captive
orca displays, as have one state and one county (Maui, Hawaii)
in the United States. The State of South Carolina's law makes
it unlawful to display any wild caught or captive-bred mammal of
the order Cetacea (dolphins and whales). India, Croatia, Costa
Rica, Hungary, and Chile prohibit captive orca and dolphin
shows. Switzerland has prohibited the importation of any live
dolphin species. Greece has a broader ban on the use of animals
for performance or entertainment. A proposal similar to this
bill is also being considered by the New York legislature this
year.
Suggested Amendments : SeaWorld has raised concerns regarding
the feasibility of keeping orcas in sea pens, which may not be
available. This bill provides that the orcas may be held in
existing enclosures until a sea pen is established. If the
orcas are maintained in their existing facilities, SeaWorld
asserts that the prohibition on performance in this bill could
prevent trainers from working with the orcas to ensure they
receive the exercise and stimulation the animals need. This
bill provides that "performance or entertainment purposes"
includes, but is not limited to, any routinely scheduled public
exhibition that is characterized by music or other sound
effects, choreographed display or training for that display, or
unprotected contact between humans and orcas. The "but is not
limited to" phrase leaves the definition of what is prohibited
activities open ended and uncertain. If the committee elects to
approve this bill, staff recommends that amendments be taken to
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clarify the activities that are prohibited and allowed under the
bill as follows:
(2) "Performance or entertainment purposes" includes, but is not
limited to , any routinely scheduled public exhibition that is
characterized by music or other sound effects, choreographed
display or training for that display, or unprotected contact
between humans and orcas. Holding of an orca is not, by itself,
a performance or entertainment purpose. Performance or
entertainment does not include activities necessary for the
general health and welfare of an orca including veterinary care,
husbandry, and related activities necessary to provide required
exercise and stimulation, and the training required for those
activities.
The author also proposes the following technical amendments to
address possible federal preemption issues:
Amend subdivisions 4502(a) (2) and (4) to read as follows:
(2) Capture in state waters, or import from another state Sell,
offer for sale, trade or transfer for any reason other than
transport to a sea pen any orca intended to be used for
performance or entertainment purposes.
(4) Export , Collect, or import from another state sell, offer
for sale, trade, or transport in any manner the semen, other
gametes, or embryos of an orca held in captivity for the purpose
of artificial insemination. Additionally, they shall not be
used for performance or entertainment purposes. Where, based on
best available science, it is determined that an orca has the
potential to return to the wild under paragraph (2)?.
Similarly, Section 4502 (c) (3) to be amended as follows:
(3) Until an appropriate sea pen has been established, captive
orcas held in the state may be kept in existing enclosures.
Those orcas shall not be exported sold, offered for sale,
traded, transferred for any reason other than transport to a sea
pen, or used for gametes or embryos intended for artificial
insemination?
Support Arguments : Supporters assert the scientific literature
documents the damaging effects of captivity on orcas' physical
health and psychological well-being. They point to the record
of incidents of orcas in captivity killing and seriously
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injuring humans, other whales and themselves, and in comparison,
the absence of any confirmed reports of serious injuries or
attacks on humans in the wild. Supporters of this bill include
organizations concerned with animal welfare, environmental
groups, marine mammal scientists, former orca trainers, labor,
and numerous individual citizens. Supporters assert the
conclusion from decades of cumulative results of both captive
and field studies is that cetaceans possess a level of
intelligence, awareness, and psychological sensitivity that
makes it unacceptable to continue to keep them in captivity if
not necessary for their welfare, survival, or conservation.
Supporters also note that a recent random poll showed that only
26% of California citizens support continuing to keep orcas in
captivity for entertainment purposes.
A statement signed by 35 marine mammal scientists from research
institutions around the world including the University of
California and other state universities was received in support
of this bill. The statement notes that when killer whales were
first displayed in the early 1960s little was known about their
ecology and behavior, that there was a steep learning curve
during the first two decades and survivorship improved, but that
there has been little improvement since then. They note the
science on the nature of killer whales makes them inherently
unsuited for confinement in concrete tanks. The statement
supports the goals of phasing out the practice of holding orcas
in captivity and a ban on captive breeding. The scientists
indicate that most of the orcas now in captivity in California
are probably not candidates for release to the wild, but could
be placed in well-designed and appropriately sited sea pens,
guided by best available science, where they would have more
natural surroundings, and where training for husbandry and
veterinary purposes could continue and the animals could be
viewed by the public.
Opposition Arguments : SeaWorld asserts in opposition to this
bill that orcas in their care are well taken care of, receive
regular veterinary check-ups and a balanced diet, and get plenty
of exercise. They also argue that keeping orcas in captivity
contributes to public education and scientific research, that
they haven't captured orcas from the wild in 35 years and do not
separate calves from their mothers, and that Sea World is a
world leader in animal rescue. They note in particular their
work on rescue and rehabilitation of stranded marine life, and
research they have funded through the Hubbs-SeaWorld Research
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Institute. SeaWorld also notes that captive orca displays and
shows have served an important public education function,
thereby benefiting conservation of orcas in the wild. SeaWorld
also claims the requirements for release or sea pens in this
bill are unworkable and would be harmful to the whales.
SeaWorld notes that 9 million visitors have visited SeaWorld,
and 100,000 children and teachers per year attend educational
programs. SeaWorld indicates it has invested $70 million in
their killer whale facilities throughout their parks in the last
three years. Other opponents of this bill also note the economic
contributions of SeaWorld in San Diego, where they provide 4,500
jobs, serve 4.5 million visitors, and contribute millions in
taxes and rental income to the City of San Diego. They assert
that this bill would not only harm SeaWorld but the restaurants,
hotels, small businesses and employees of the region, and the
overall tourist economy of the state.
REGISTERED SUPPORT / OPPOSITION :
Support
Animal Welfare Institute (sponsor)
Action for Animals
American Society for the Prevention of Cruelty to Animals
(ASPCA)
Animal Legal Defense Fund
Born Free USA
Dolphin Project
Earth Island Institute, International Marine Mammal Project
Environmental Protection Information Center (EPIC)
Free Willy Keiko Foundation
Humane Society of the United States
In Defense of Animals
Jean-Michel Cousteau's Ocean Futures Society
League of Humane Voters
Local 30 UNITEHERE, San Diego County Hotel and Food Service
Workers' Union
Marine Connection
Protecting Earth & Animals with Compassion & Education (PEACE)
Public Interest Coalition
Sierra Club California
Whale and Dolphin Conservation
Wild Orca
Women Occupy San Diego
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Numerous individuals
Opposition
Anaheim/Orange County Visitor and Convention Bureau
Opposition - continued
California Association of Boutique & Breakfast Inns
California Association of Zoos and Aquariums
California Chamber of Commerce
California Hotel & Lodging Association
California Retailers Association
California Travel Association
City of Chula Vista
Hotels in the Best Destinations
San Diego Regional Chamber of Commerce
SeaWorld
Strategic Roundtable
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096