Support for the Federal SWIMS Act

BILL INFORMATION

S.3694 (Sen. Wyden) / H.R.7145 (Rep. Schiff) – amends the Marine Mammal Protection Act of 1972 and the Animal Welfare Act to prohibit the taking, importation, exportation, and breeding of certain cetaceans for public display, and for other purposes (2023-24).

SUMMARY

The Animal Law Committee issued a report supporting the Strengthening Welfare in Marine Settings (SWIMS) Act of 2024. The report highlights the poor living conditions of orcas, beluga whales, and other whale species confined to aquariums, where they are forced to perform for entertainment and deprived of their natural ocean habitats. These animals are neurobiologically, cognitively, behaviorally, and emotionally complex, and are highly social, with vast home ranges spanning the world’s oceans. Studies have shown that captivity causes significant physical, emotional, and neurological harm to these creatures. The City Bar supports the SWIMS Act, which would amend the Marine Mammal Protection Act of 1972 and the Animal Welfare Act to prevent the exploitation of orcas, beluga whales, false killer whales, and pilot whales in aquariums and marine parks by: (1) prohibiting the export of these mammals, except to a marine mammal sanctuary or for their release into the wild, (2) barring the Secretary of Commerce from issuing permits for the capture and importation of these mammals for public display, and (3) prohibiting the artificial insemination or breeding of these mammals for display purposes.

REPORT

REPORT ON LEGISLATION BY THE ANIMAL LAW COMMITTEE

S.3694 (Sen. Wyden)
H.R. 7145 (Rep. Schiff)

AN ACT to amend the Marine Mammal Protection Act of 1972 and the Animal Welfare Act to prohibit the taking, importation, exportation, and breeding of certain cetaceans for public display, and for other purposes.

Strengthening Welfare in Marine Settings Act of 2024

THIS LEGISLATION IS APPROVED

I. EXECUTIVE SUMMARY

Orcas (also known as killer whales), beluga whales, and a few other whale species are kept in aquariums around the world where they are forced to perform as entertainment and denied a natural life in their ocean habitat. In the past few decades, thanks in part to documentaries like Blackfish and educational efforts of animal welfare organizations, the public has learned that orcas and other whales in captivity live tragic, unnatural lives. Consequently, shows featuring orcas and belugas have become less popular in the United States, and fewer aquariums in the United States now keep whales. Unfortunately, there continues to be an overseas market for orca and other whale shows.

Existing federal law is insufficient to protect marine mammals and their populations. The Strengthening Welfare in Marine Settings Act of 2024 (the “SWIMS Act” or the “Bill”) would amend the Marine Mammal Protection Act of 1972 and the Animal Welfare Act to help protect orcas, beluga whales, false killer whales, and pilot whales (the “covered mammals”). It would prevent U.S. aquariums from exporting them (which means they can’t sell them, for example, to an aquarium overseas), prohibits their breeding in captivity to create new covered mammals for public display, and prohibits the import of covered mammals for public display. This report will describe the animals this bill is intended to support, describe the unnatural living conditions and tricks they perform for tourists, and explain why the Bill is needed.

II. BACKGROUND

To fully understand why the new restrictions in the Strengthening Welfare in Marine Settings Act of 2024^[1] are necessary and why existing laws are inadequate to protect orcas, beluga whales, false killer whales, and pilot whales, it is essential to have some understanding of their circumstances of captivity and their biology.

The covered mammals are cetaceans, an order of fast-moving, deep-diving predators of the sea. These animals are neurobiologically, cognitively, behaviorally and emotionally complex, are highly social and their home ranges are vast, i.e., the oceans of the world.[2] Studies show that cetaceans suffer physically, emotionally and neurologically in captive environments.[3] Those in captivity live in concrete enclosures, tanks and sea pens.[4] In addition to all the other harmful effects on these marine mammals, the reflective, smooth surfaces of the small, shallow spaces cause constant and unnaturally high levels of radiation.[5] The water in the tanks is usually chemically treated so that the animals are not swimming in their own waste.[6] If not maintained within strict parameters, elevated levels of these chemicals, such as chlorine and ozone, can cause eye damage, respiratory issues and skin sloughing.[7]

A. Orcas

Orcas are the third most common cetaceans (following bottlenose dolphins and beluga, respectively) kept in aquariums and marine theme parks and, given their long lifespans, may spend many years in captivity.[8] They have one of the largest and most complex brains in the mammalian kingdom.[9] At least 55 orcas are currently held in captivity in marine parks and aquariums around the world—18 individuals are in the United States.[10] In captivity, orcas live in barren enclosures that lack oceanic flora and fauna and that provide less than one ten-thousandth of one percent of their normal habitat size.[11] They are unable to get the quality of aerobic exercise necessary for good health and welfare, and they are unable to form natural social bonds.[12]

The Orcinus orca, known as the orca or killer whale[13] is a mammal, a cetacean, and a member of the dolphin family, Delphinidae, the same zoological family to which dolphins and porpoises belong.[14] There are only about 50,000 worldwide, and in recent decades, several populations of orcas have declined and some have become endangered.[15]

Orcas are extremely large animals, with the average size of a free-ranging adult male orca being 19.7-26.3 feet long, while females average 16.4 to 23 feet long.[16] Male orcas can weigh up to 13,200 pounds while females can weigh half that much, despite being only slightly shorter in length.[17] Their average lifespan in the wild is 30 to 90 years.[18]

After humans, orcas cover the widest range of distribution across the globe, including tropical seas, temperate zones, and the edge of the pack ice at both poles.[19] Depending on the type of orca, their range may extend dozens or hundreds of miles and they can travel 30 to 100 miles a day and routinely dive to 300 feet.[20]

Within the species Orcinus orca there are groups with important cultural differences, including hunting, foraging, dietary specializations,[21] different vocalizations,[22] different ranges,[23] and even different fads or trends (temporary behavioral traits with no particular function that spread rapidly through a population, and then disappear).[24] Orcas’ social structure is organized by lines of matrilineal relatedness—they remain with their mothers their whole lives, though it is assumed that males leave their matrilineal group to breed.[25]

For a substantially longer description of the orcas, including their habits in the wild, the social structure of groups of wild orcas, and the significance of their considerable intelligence, please see pages 2 to 8 of the Animal Law Committee’s report in support of the Orca Responsibility and Care Advancement Act of 2017.[26]

B. Beluga Whales

At least 300 beluga whales are currently held in captivity in marine parks and aquariums around the world. [27] In the United States, there are over 35 in captivity.[28] Like the other covered mammals, belugas are ill-suited for and suffer in captivity.[29]

Beluga whales are forced to engage in unnatural behaviors in small aquariums that restrict them from swimming their natural range. For example, some U.S. aquariums allow tourists to pay to pet and feed beluga whales in cold-water tanks.[30] At Mystic Aquarium, the public can pay $150 to, “Book a private Zoom call with our belugas and their care team,” during which beluga whales paint.[31] The Georgia Aquarium sells paintings made by belugas for $75 to $125 ostensibly to raise funds for conservation activities.[32]

Beluga whales are also held in Japan, China, and Spain. In one aquarium in Japan, belugas were fitted with Santa hats and trained to perform Christmas routines to draw crowds during the Christmas holidays.[33] In China, video footage shows two belugas forming a heart shape as a trick to wish the audience a happy New Year.[34] Also in China, a photograph depicts two beluga whales in a tank barely longer than their bodies.[35]

The beluga whale (Delphinapterus leucas) belongs to the family Monodontidae, a family it shares with only the narwhal. They can grow up to 16 feet and 3,150 pounds. Belugas are known as ‘white whales’ because adults are white or light grey (juveniles are grey). They have a signature bulge on their foreheads, known as a melon, and they appear to be smiling. They are highly vocal, producing many sounds such as whistles, squeals, clicks, and more. They inhabit “fjords, estuaries, and shallow waters of the Arctic and subarctic oceans.”[36] The average lifespan is 35 to 50 years.[37] Belugas nurse for approximately two years and “may continue to associate with their mothers for a considerable time thereafter.”[38] A study published in 2018 found that belugas value culture and family ties; “[c]losely related whales were found to aggregate together at coastal summering areas each year, and close kin were documented at the same summering sites up to twenty years apart.”[39] Beluga whales can swim 60 to 70 miles in a day in the wild.[40]

The National Oceanic and Atmospheric Administration (NOAA) states that beluga whales may number in the hundreds of thousands;[41] the International Union for Conservation of Nature and Natural Resources (IUCN) estimates that mature beluga whales number 136,000.[42] In 1996, the ICUN listed the entire beluga whale species as vulnerable. NOAA designated beluga whales in Cook Inlet Alaska and in the Sakhalin Bay-Nikolaya Bay-Amur River as “depleted species” under the MMPA (i.e., they have fallen below their optimum sustainable population levels).[43] This gives them heightened protection under the MMPA. In addition, the Cook Inlet beluga whale population is designated as an endangered species under the Endangered Species Act. In 2012, NOAA denied a permit application by the Georgia Aquarium to import 18 beluga whales from Russia, finding that the aquarium failed to show that an import permit would not likely have an adverse impact on the stock from which the whales to be imported were taken.[44] This was the first time NOAA denied a permit request for public display of marine mammals.

C. False Killer Whales

There are no false killer whales held in aquariums and marine parks in the United States as of the date of this report. SeaWorld used to keep false killer whales in captivity. The last false killer whale kept in captivity in the United States died in 2019.[45] The Okinawa Churaumi Aquarium in Japan keeps false killer whales and it has tried to breed them.[46] However, the second captive-bred false killer whale died when he was just five years old, [47] a fraction of the roughly 60-year life span in the wild.[48] Despite its claim that it is performing meaningful scientific research, the Okinawa Churaumi Aquarium exploits its false killer whales by making them perform in shows for tourists, such as a Christmas show involving a false killer whale who spits out fish until she is offered a whole bucket of fish.[49]

There are only about 60,000 false killer whales (Pseudorca crassidens) in the oceans.[50] Despite the name, they do not resemble killer whales (orcas). They are smaller and slimmer than orcas (average length is 16-20 feet) and do not have white patches on their bodies. They were given the name in the mid 19^th Century from two scientists who thought their skull resembled an orca’s skull.[51]

Scientists do not know a lot about them because they are difficult to study, but they have discovered that they have tight social bonds and individuals will “swim, hunt, and cavort together for years.”[52] They live in tropical and warm temperate oceans worldwide.[53] The main Hawaiian Islands insular false killer whale distinct population segment (about 150-20 individuals) is listed as endangered under the Endangered Species Act.[54]

D. Pilot Whales

There are currently two short-finned pilot whales in captivity in the United States, in SeaWorld San Diego,[55] of about seven in captivity worldwide. The other captive pilot whales are kept in Japan and China.[56] The pilot whales in SeaWorld San Diego were rescued when they were stranded in Florida.[57] The two pilot whales perform tricks for tourists in SeaWorld San Diego, like splashing water on them and jumping in the air to the song “Here Comes the Sun.”[58]

There are two species of pilot whales: Short-finned pilot whales (Globicephala macrorhynchus) live throughout the world in tropical and temperate oceans.[59] Long-finned pilot whales (Globicephala melas) live in deep temperate to subpolar oceanic waters.[60] The population of pilot whales is unknown, but the MarineBio Conservation Society estimates there are 200,000 short-finned pilot whales and over a million long-finned pilot whales in the wild.[61]

Both species of pilot whales live in small social groups. According to NOAA, long-finned pilot whales are “very social, living in large schools of hundreds of animals separated into close-knit pods of 10 to 20 individuals.”[62] And short-finned pilot whales, “live in stable groups of 15 to 30 animals composed of close family relatives, and tend to live in localized, resident populations . . .”[63] Like the other covered mammals, pilot whales are ill-suited for captivity due to their range and the importance of social bonds.[64] Whale and Dolphin Conservation explains, “Pilot whales are strongly bonded to each other and do everything together; resting, hunting, socialising, playing and travelling as a unified pod. The most important thing in their lives is each other, and they are incredibly loyal.”[65]

III. SUMMARY OF PROPOSED LEGISLATION

If enacted, the SWIMS Act would amend the Marine Mammal Protection Act of 1972 (“MMPA”)[66] and the Animal Welfare Act (“AWA”)[67] to protect orcas, beluga whales, false killer whales, and pilot whales from exploitation for tourist entertainment in aquariums and marine parks. Specifically, the SWIMS Act would (1) prohibit the export of the covered mammal, except if transported to a marine mammal sanctuary (the bill would allow their release to the wild),[68] (2) prohibit the Secretary of Commerce from issuing a permit for the taking and importing of the covered mammals for the purpose of public display,[69] and (3) prohibit the artificial insemination or breeding of the covered mammals for public display.[70]

Under current federal law, the Secretary of Commerce (acting through the National Marine Fisheries Service (NMFS) may issue permits for the capture or import of the covered mammals for the purposes of public display. Without such a permit, the MMPA prohibits the taking of any marine mammal in U.S. waters and by U.S. citizens on the high seas as well as the importation of marine mammals and marine mammal products into the U.S. If enacted, the Secretary would no longer be able to issue such permits for public display for the covered mammals.

The protections in the Bill would further the legislative intent of the MMPA to limit human impact on marine mammals and protect their populations from harm and “other indignities, all in the interest of profit or recreation.” The House Report on the MMPA in 1972 stated:

Recent history indicates that man’s impact upon marine mammals has ranged from what might be termed malign neglect to virtual genocide. These animals, including whales, porpoises, seals, sea otters, polar bears, manatees and others, have only rarely benefitted from our interest; they have been shot, blown up, clubbed to death, run down by boats, poisoned, and exposed to a multitude of other indignities, all in the interests of profit or recreation, with little or no consideration of the potential impact of these activities on the animal populations involved.[71]

Some of the marine animals who have suffered the most and are in captivity in the U.S. because of permits are the covered mammals. They survive in what can only be described as inhumane circumstances of stressful environments that cause them immeasurable physical, mental and neurological trauma. Separated from their families and habitat, they are confined to tiny (relative to their size), unstimulating, barren enclosures, lack space and normal social interactions for their species and are forced to perform unnatural behaviors to entertain audiences and to display themselves in the name of “conservation education,” according to the aquariums that keep them.

IV. INTERNATIONAL LAW

The United States, a member State of both the International Union for Conservation of Nature (“IUCN”) and the Convention on International Trade in Endangered Species of Wild Flora and Fauna (“CITES”), keeps dozens of individual covered mammals in captivity and, as such, is currently one of the world’s greatest exploiters of these animals.[72] Several other countries have passed restrictions on the capture, breeding, and/or importation of marine mammals.

The IUCN[73] Red List of Threatened Species assesses the risk of extinction of a species and assigns designations such as “endangered,” “threatened,” or “least concern”[74] and classifies Killer Whale orcinus orca as DD (data deficient), i.e., conservation status is unknown.[75] This ascription, last assessed in 2017, is both vague and misleading because they are difficult to study in the wild and because of the uncertainty of their taxonomic classification.[76]

Along with most cetacean, orcas, beluga whales, false killer whales, and pilot whales are included in Appendix II of CITES.[77] This means international trade is prohibited unless certain conditions are met. CITES does not replace national laws. It is a voluntary treaty between Governments (“Parties”).[78] Parties, e.g., the U.S., that have joined CITES ratified the treaty, and are legally bound to adhere to its rules. They must enact their own laws to ensure CITES is implemented in their country.[79] Some notable countries that have enacted laws protecting the covered mammals,[80] include:

• Canada: In 2019, Canada passed the “Ending the Captivity of Whales and Dolphins Act” which significantly restricts the importation and breeding of a cetacean (including a whale, dolphin or porpoise). S.C. 2019, c. 11.[81]
• France: On May 3, 2017, France issued a decree that includes significant requirements for the welfare of and restrictions on cetaceans kept in captivity.[82]
• Russia: On September 1, 2024, a Russian law issued a ban on the capture of whales, dolphins and other marine mammals for educational and cultural purposes.[83] Russia had been the “sole regular” supplier of wild caught beluga whales to the public display industry since 1992.[84] Russia exported at least 237 beluga whales between 1990 and 2010.[85]
• Switzerland: Passed in 2012, Switzerland’s Animal Protection Ordinance significantly restricts the captivity and importation of cetaceans.[86] Since 2013, there have been no captive cetaceans in Switzerland.[87]
• United Kingdom: The United Kingdom does not ban the keeping of the covered mammals in captivity. However, whales and dolphins have not been kept in captivity in the U.K. since 1993, when new animal welfare regulations were promulgated.[88] There is a push to enact legislation to ensure that an operator does not maintain whales and dolphins in captivity in the future.[89]

V. ARGUMENTS AGAINST THE BILL

The Association of Zoos and Aquariums, a nonprofit that represents over 235 facilities,[90] opposes the Bill.[91] The AZA argues:

The opportunity to see wild animals at AZA-accredited facilities is one of the few authentic experiences that can stem the tide of Americans’ growing disconnect from nature.  These facilities adhere to rigorous animal care standards for the animals living in their care, which represent a national heritage for future generations to connect with, understand, and value.

The AZA’s argument defies logic. The public’s experience of seeing a cetacean in an aquarium—where they are forced to perform tricks for tourists, paint pictures, and endure petting and human contact—is anything but natural or “authentic” and arguably distances the public from nature. In addition, no matter how well meaning, an aquarium’s “care standards” are inherently deficient because, in the wild, these animals live in social groups and swim and dive a range significantly broader (10,000 times) than the largest aquarium tank.[92]

There are ways to learn about the covered mammals in a way that is not harmful, from watching television programs, reading about them, viewing pictures on the Internet, and while admittedly difficult for many, seeing them in the wild.

VI.  SUMMARY

For the reasons described above, the Animal Law Committee supports the SWIMS Act. The SWIMS Act will help reduce the exploitation of orcas, beluga whales, false killer whales, and pilot whales in captivity by preventing their import, export, and breeding for the purposes of entertainment. By doing so, we will take an important step to reduce the number of covered mammals who are forced to perform and to live an unnatural life.

Animal Law Committee
Martha Golar and Sherry Ramsey, Co-Chairs
Rebecca Seltzer and Robyn Hederman, Immediate Past Co-Chairs

December 2024