Abstract
Since 2010, stories involving cetaceans, including Tilikum, Lolita, and eighteen unnamed beluga whales in Russia, have raised public awareness in the United States of their fate. Americans are learning that cetaceans are incredibly complex, intelligent, and social creatures, with severely inadequate legal protections under U.S. law and that maintaining them in captivity does great harm to them. This situation provides an opportunity to change the legal paradigm for these animals. This chapter first presents an overview of current U.S. laws designed to protect cetaceans in the wild and in captivity and explain why these laws are inadequate. The chapter then discusses why the recent conflation of events concerning these famous cetaceans may provide the best vehicle for changing the legal paradigm for animals. Finally, the chapter analyzes a variety of legal approaches available to provide greater protections for cetaceans in the U.S. and argues that because the traditional utilitarian approach cannot properly protect cetaceans in the wild or captivity the time may be ripe for a deontological approach.
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Notes
- 1.
Based loosely on Tilikum’s story as reported by Tim Zimmerman (2010).
- 2.
These limits do not apply to permits other than those for public display. Moreover, the Secretary may allow a take for public display when factors (1) or (2) are present if for the protection or welfare of the animal.
- 3.
This would preclude the import of these five animals only.
- 4.
Notably, the take limitations apply only for public display permits, leaving all other allowed takes of marine mammals without protection for the animals’ welfare during the take.
- 5.
Also, interestingly, all captive male orcas have fully collapsed dorsal fins, while only 1–5 % of male orcas in some populations have fully collapsed dorsal fins (Rose 2011, pp. 5–6).
- 6.
However there are certain groups of orcas who are endangered. In fact, the capture of Lolita which resulted in the death of at least four orcas and the taking of Lolita and seven other orcas, along with other factors, caused such devastation to the Southern Resident population that the Southern Resident Killer Whale Distinct Population Segment is classified as endangered. 70 Fed Reg 69903.
- 7.
Jacques Cousteaus has said, “There is about as much educational benefit to be gained in studying dolphins in captivity as there would be studying mankind by only observing prisoners held in solitary confinement.” (Palmer 2010)
- 8.
Notably, while Congress has substantially changed the statute since this landmark decision, it is still viewed as “a powerful tool for species protection and conservation” (Liebesman and Petersen 2010, p. 9).
- 9.
The name of the statute is not scientifically proper. As Donald Broom notes, “Welfare is a characteristic of an individual animal whilst animal protection is a human activity. Welfare includes both the ease of coping, or difficulty of coping, and any failure to cope. It varies over a range from very good to very poor and can be evaluated scientifically” (Broom, Chap. 3 this volume).
- 10.
MHD is defined as “the diameter of a circular pool of water, or in the case of a square, rectangle, oblong or other shape pool, the diameter of the largest circle that can be inserted within the confines of such pool of water” (9 C.F.R. § 1.1).
- 11.
Sea World reported 2013 third-quarter profits at $120 million, a 30 % increase over 2012 third quarter. In 2014, Sea World reported attendance dropped 4.3 % (Kirby 2014b).
- 12.
Sea World has filed yet another lawsuit, now against the OSHA investigator claiming she, inter alia, violated ethical rules and federal law by sharing confidential information with the producers of Blackfish (Hightower 2014).
- 13.
The highest courts of Maryland and Texas demonstrated divergent views of their authority to alter the common law. The Maryland Court of Appeals altered long-established tort liability principles and held that pit bull dogs are inherently dangerous and thus a person with control over such dog would be held strictly liable, stating “the Court certainly has the power to change the common law” (Tracey v. Solesky, 2012, p. 640). In contrast, the Texas Supreme Court refused to grant noneconomic damages for the wrongful killing of a companion dog although relational affection for such animal is “unquestionable” claiming “the legislature is best equipped” to alter damages recoverable in such cases (Strickland v. Medlen, 2013, pp. 185, 196).
- 14.
The choice of the first lawsuits involved many criteria, including the right jurisdiction based on their laws, the philosophy and background of their justices, and the available alternatives for the animal if released (Nonhuman Rights Project, About Us, http://www.nonhumanrightsproject.org/about-us-2/. Accessed 3 December 2015). Currently there are no safe havens for captive orcas who cannot be released into the wild; thus they filed on behalf of chimpanzees rather than an orca.
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Schaffner, J.E. (2016). Blackfish and Public Outcry: A Unique Political and Legal Opportunity for Fundamental Change to the Legal Protection of Marine Mammals in the United States. In: Cao, D., White, S. (eds) Animal Law and Welfare - International Perspectives. Ius Gentium: Comparative Perspectives on Law and Justice, vol 53. Springer, Cham. https://doi.org/10.1007/978-3-319-26818-7_11
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