On Thursday, October 8th, the California Coastal Commission granted SeaWorld permission to expand their tanks for captive orcas in San Diego, but required as a condition that SeaWorld end breeding of captive orcas and not move any orcas into or out of the facility.
Only a week later, on October 15th, SeaWorld announced they had retained a large legal firm and said they would fight the condition.
In their press statement, SeaWorld’s new President and CEO Joel Manby said, “the company intends to pursue legal action against the California Coastal Commission for its overreaching condition that would ban killer whale breeding at SeaWorld San Diego. Animal welfare is governed by federal and state laws that do not fall within the jurisdiction of the California Coastal Commission's appointed board.”
It is still not clear what specific action SeaWorld will take – they could appeal the Coastal Commission decision, or they could sue the Coastal Commission to overturn the condition in either state or federal court. In several subsequent missives, SeaWorld has continued to state it will challenge the Coastal Commission’s legal right to make such conditions on their permit.
But CEO Manby errs when he claims that the Coastal Commission does not have jurisdiction over the husbandry practices at SeaWorld. The California Coastal Act, a citizen’s initiative passed by voters to protect California’s coast, includes broad language setting out the Commission’s authority, especially over important marine resources, which includes orcas. The purpose of the condition passed by the Commission was a policy of ending the keeping of orcas in captivity in California – captivity, as the Commission learned from the substantial public record during the permit process, kills. Orcas in captivity simply do not live as long or as well as orcas in the wild, and ending captivity will help end the depletion of wild stocks of orcas.
In order to maintain captive orcas for the long run, the industry, including SeaWorld, must bring wild orcas into captivity to improve the gene pool and maintain males that are able to mate with females. Logically, those orcas have to come from somewhere, including possibly the California Coastal Zone. Even orcas caught outside the California Coastal Zone are protected by the Coastal Act, as long as they use California waters at some point in their lives. Current federal law, contrary to popular opinion, does not prohibit captures of wild orcas for captivity in US waters.
The courts have usually taken a broad interpretation of the Coastal Commission’s jurisdiction. Certainly, the welfare and dubious educational value of captive orcas in SeaWorld San Diego should be of concern to the agency responsible for the health and welfare of the coast and all its inhabitants.
It is also unclear whether SeaWorld will go forward with construction of the expanded tanks while their legal efforts continue. Likely, because the real purpose of expansion of the tanks was to breed yet more captive orcas to fill up the increased space (as opposed to providing more space for their existing orcas, as SeaWorld originally claimed as the purpose for the expanded tanks), SeaWorld will not proceed with any significant construction, at least pending a court decision in their favor.
Oddly, there are also indications from SeaWorld that they will not go forward ever with the proposed orca tank expansion anyway. Why would SeaWorld fight in court for a project SeaWorld is dropping?
Earth Island’s International Marine Mammal Project Team participated extensively in building the public record before the California Coastal Commission, provided copies of the documentary Blackfish to each Commissioner along with background information, and testified to the need to end breeding of captive orcas.
Earth Island will be active in the legal proceedings in support of the Commission in one form or another. We are making plans to intervene in any lawsuit filed against the California Coastal Commission by SeaWorld.
We are especially watchful that the Coastal Commission and SeaWorld do not reach some kind of internal agreement to prevent a lawsuit. Such a settlement, if it allows SeaWorld to continue to breed captive orcas, would be a betrayal of the public trust for wildlife.
Your support is needed to help fund our legal efforts in support of the Coastal Commission. Please consider a donation to our fund to support an end to the cruelty of orca captivity.