The LOLITA ESA Violation Court Files

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With the appellate court upholding the district court’s ruling in favor of the Miami Seaquarium, Final Days, with the help of our unpaid high school intern, decided to pull together the relevant court documents for our readers. Make sure to look at them all, as there’s a plethora of information.

First, the initial appellate court brief filing by PETA, ALDF, Orca Network, and Howard Garrett, along with supplemental exhibits:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-opening-appellate-brief1.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-opening-appellate-appendix.pdf

Next, the brief by defendant Miami Seaquarium and its supplemental exhibits:

https://finaldaysofwisdom.files.wordpress.com/2018/01/seaquarium-appellate-brief.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/seaquarium-appellate-appendix.pdf

PETA, et al’s response and exhibits:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-appellant-reply.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-appellant-reply-appendix.pdf

Seaquarium’s corrected brief:

https://finaldaysofwisdom.files.wordpress.com/2018/01/seaquarium-corrected-brief.pdf

PETA, et al’s request for supplemental authority. It should be noted that the case against the San Antonio Zoo was dismissed in December 2017 at the plaintiffs’ request:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-appellant-supplemental-authority.pdf

Seaquarium response to the supplemental authority:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-supplemental-authority-response.pdf

A second request for supplemental authority and the Seaquarium’s response:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-supplemental-authority-2.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-supplemental-authority-2-response.pdf

Letter regarding plans for a sea pen:

https://finaldaysofwisdom.files.wordpress.com/2018/01/lolita-letter.pdf

Court’s decision:

https://finaldaysofwisdom.files.wordpress.com/2018/01/peta-lolita-appellate-decision.pdf

We also went through the lower court’s files. Quite a few documents remain under seal, however we were able to pull some key depositions, testimony, and rulings. Much of the testimony and statements were included in the following eight motions to exclude. Each document states what restrictions have been placed upon the expert witness by the court.

Here are the files for the expert witnesses for PETA, et al – Maddalena Bearzi, Pierre Gallego, John Hargrove, and Ingrid Visser:

https://finaldaysofwisdom.files.wordpress.com/2018/01/bearzi-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/gallego-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/hargrove-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/visser-exclusion.pdf

The Seaquarium reversed its request to exclude Dr. Gallego:

https://finaldaysofwisdom.files.wordpress.com/2018/01/gallgo-exclusion-reversal.pdf

Here are the files for the expert witnesses for the the Seaquarium – Thad Lacinek, Michael Renner, Grey Stafford, and Jeffrey Stott.

https://finaldaysofwisdom.files.wordpress.com/2018/01/lacinak-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/renner-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/stafford-exclusion.pdf

https://finaldaysofwisdom.files.wordpress.com/2018/01/stott-exclusion.pdf

The Seaquarium appealed the exclusion of Grey Stafford. Here is the filing:

https://finaldaysofwisdom.files.wordpress.com/2018/01/stafford-exclusion-appeal.pdf

Additional expert statements may be found in the supplemental exhibits to the appellate court filings.

As part of the lower court’s trial, the Seaquarium’s attorney deposed Howard Garrett and Ken Balcomb. Here is Garrett’s deposition on behalf of Orca Network:

https://finaldaysofwisdom.files.wordpress.com/2018/01/defense-interogates-orca-network.pdf

Here is Garrett’s separate deposition as an individual, along with Balcomb’s deposition. NOTE: he first deposition in the document’s contents, Howard Garrett as representative for Orca Network, has been posted separately in the above link.

https://finaldaysofwisdom.files.wordpress.com/2018/01/defense-interogates-howard-garrett.pdf

The lower court made a ruling on whether or not behavior of the white sided dolphins in the tank could be included in the case:

https://finaldaysofwisdom.files.wordpress.com/2018/01/dolphin-harrasment-exclusion.pdf

Finally, a 43-page transcript of negotiations in the lower court for the plaintiffs to visit the tank:

https://finaldaysofwisdom.files.wordpress.com/2018/01/inspection-negotiations.pdf

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OPINION: The Risk of Omission

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Over the Christmas weekend, I saw two very different blockbuster movies. One had a very clear message against animal abuse in entertainment and against eating meat. It was called Star Wars: The Last Jedi. The other was about someone who extensively used animals for entertainment, even though animals barely appeared in the film. It was a revisionist biopic of PT Barnum called The Greatest Showman.

I was surprised that for its portrayal of Barnum, a showman who made his fortune on the backs of animals as much as on human oddities, his history as an animal owner and exhibitionist was almost nonexistent in the film.

Last week, on social media, I referred to Barnum as one of the greatest animal abusers in American history, for which I received a bit of flack from some of my readers. I may have gone a bit far with that. For his day, when exotic animal husbandry tended to be archaic and, in many instances, inhumane when compared to now, Barnum tended to show a higher level of care than his competition. A dead animal, after all, wasn’t worth anything….unless it was owned by PT Barnum.

I’m much more comfortable labeling him one of the greatest animal exploiters in American history. Had he lived in modern times, he would likely have partnered or gone into competition with the owners of Sea World in the 1960s and 1970s. Further, his exploitation extended beyond the death of an animal or person.

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Barnum’s Boston Aquarial Gardens 1861

VIDEO: Sea World San Diego 1972

In the new BBC documentary Attenborough And The Giant Elephant, naturalist David Attenborough explains that the health of Barnum’s famous elephant Jumbo improved once he was brought to America from the London Zoo, where he had been overburdened with children for elephant rides and fed whiskey by his keeper. But the film also shows another side of the relationship between Barnum and Jumbo.

On September 15, 1885, Barnum’s circus train was parked in St Thomas, Ontario, Canada, near where the company was putting on a series of shows. Walking the elephants along the tracks to their cages, keeper Matthew Scott noticed a freight train speeding down a parallel track and tried to race the elephants toward an area they could escape the embankment the tracks were built on. Leading the way, Jumbo noticed that Tom Thumb, a dwarf elephant running directly behind him, was in immediate danger, and, grabbing him with his trunk, threw him over the rails to safety. He then pushed Scott safely out of the way, turned around, and charged the freight train head on, dying a valiant hero.

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Or so Barnum would want you to believe.

New forensic evidence, including accounts of the day, photos, and an examination of Jumbo’s skeleton, show that Tom Thumb was knocked into a ditch by the freight train’s locomotive, which then crashed into a fleeing Jumbo, slamming him into the back of the circus train, killing him within minutes.

So, I suppose the filmmakers could be forgiven for revising the history of a man who revised history himself.

This is where selective omission comes into play.

Selective omission is easiest to understand when one considers our current PT Barnum – one DJ Trump.

I’m the soon-to-be uncle of a transgender teenager. My fiance and I were recently caught off guard when they (for those wanting to correct my grammar, “they” is the appropriate non-gender pronoun to use when referring to transgender individuals) asked how one of their heroes, an openly gay man who claims to fight for LGBT rights, could be a Trump supporter.

How is it possible to claim support for an individual and avoid the fact that that person has instituted policies that counter your beliefs or are detrimental to what you stand for?

I am flabbergasted by the number of so-called environmental activists who support Trump. David Neiwert of the Southern Poverty Law Center wrote about this, going further (as he is an animal activist) than I by arguing that one can’t be a Trump supporter and also be against orca captivity. I’ll note that Neiwert’s piece was published a month before Blackstone announced it would be selling its ownership interest of SeaWorld to China’s Zhonghong Group.

Selective omission risks creating misunderstandings or riffs with colleagues and followers.

My eyes roll every time SeaWorld CEO Joel Manby uses the phrase “sea cages” and references how bad placing an animal in a natural saltwater sea pen environment could be. When he mentions “sea cages,” he never discusses the successful use of cetacean sea pens by many of SeaWorld’s partners, including numerous AMMPA member dolphin facilities throughout the world, companies like Ocean Embassy (which was involved with Keiko’s relocation to Iceland), the United States Navy, and NOAA Fisheries.

Here’s a question on The Greatest Showman: does supporting the filmmakers for their stance on animals mean one supports Barnum and all he stands for?

I believe it does if one does not address the history of Barnum, and not addressing this history could very well create misunderstanding or riffs in the animal rights community.

I say this because a number of animal rights activists, some of them quite prominent, are supporting star Hugh Jackman and the filmmakers for using CGI instead of live animals (although real horses and dogs do appear in the film). And that’s where they end – with applause for Jackman taking an anti-animals in the circus stance. No commentary on who the film’s about.

I question how much of the decision to feature CGI animals in the film was actually related to animal abuse allegations and recent legislation. There’s no mention of animals in any of the film’s webcasts. I was unable to locate any mention of animals on the film’s social media accounts, nor in interviews with the filmmakers or cast, including Zendaya, who became a vegetarian after watching a documentary on factory farms. The 32 page press release from the studio mentions Barnum displaying animals, but makes no mention of animals, real or otherwise, appearing in the film.

If a major Hollywood blockbuster film is conveying the message that real animals in the circus are bad, why didn’t it partner with a nonprofit working to rehabilitate circus animals? Why didn’t the production or the studio donate to a sanctuary for retired performing animals? Even more important, since the animals in the film appear only briefly and as scenic elements, why include animals at all?

Without a doubt, Hugh Jackman is an animal lover. He’s donated his time to Australian charities fighting animal testing. But something feels off about this. Without the studio and the filmmakers pushing this matter, it looks like Jackman took a publicist’s advice on what to say during interviews to alleviate potential harm to his reputation from animal rights activists. That’s not say that PETA didn’t take the filmmakers to task for glorifying Barnum. They certainly did, all while still thanking Jackman for his stance in a single line.

As I began researching this piece, I also started wondering what Jackman’s belief on animals in the circus is. It seems less to do with abuse, and more to do, like the film, with the fact that you just plain don’t need animals to have a circus. In an interview with Emanuel Levy, Jackman said:

My earliest memories of going to the circus are the Circus Oz which I believe was the first circus in the world to not use animals, and it was their calling card. So to me that’s natural–like I don’t ever remember going to a circus with animals in it.  That was in the discussion from the very beginning for 7 years.  But we do have a horse that Tom Thumb rides on, and we did have a dog yesterday that sat with the Queen but apart from that there’s no animal because to me that just felt natural. Circus Oz was more based on human performances and that kind of entertainment.

As these activists’ tweets began to be read by their followers, heated debates followed. I’ll address two of the arguments I saw that were used in defending these tweets applauding Jackman:

BARNUM’S CIRCUS IS NO MORE

This argument states that the Barnum and Bailey Circus was shut down last year, so Barnum’s history as a circus man is no longer relevant since his circus no longer exists.

Yet, circus acts with animals still exist in North America and Europe. In Latin America, , Asia, East Europe, and parts of Africa, circus acts proliferate, often with animal husbandry conditions equal to or worse than those of Barnum’s time.

BARNUM IS IN THE PAST. WE NEED TO CONCENTRATE ON THE FUTURE

We can’t understand the future if we don’t understand the past, especially as history has proven itself to be cyclical. As a number of the tweets I’ve read emanated from those very vocally opposed to the captivity of cetaceans, I’ll present my argument from a cetacean captivity standpoint.

If you are involved in, or are a fan of, marine parks, aquariums, or zoos, it’s important to understand the history of such places and the strides that have been made in the ensuing years – to ensure that standards don’t decline and that due diligence is placed upon those institutions falling behind modern standards.

If you are opposed to captivity, it is important to understand the roots of modern facility conditions and care and to be able to tell what has modernized and what has not.

Regardless of your stance, it’s important to know that the root of the modern marine life park is PT Barnum.

One thing missing from the film is the main act of Barnum’s circus during its 1887 tour – Captain Paul Boynton’s Marvelous Aquatic Exhibition, which featured Boynton’s trained sea lions. At Chicago’s Columbian Exposition in 1892, Boynton’s sea lions proved to be a popular attraction on the midway.

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Three years later, he opened Sea Lion Park on Coney Island. Featuring innovative rides, such as the Chute-the-Chutes and the very dangerous Flip Flap Railway, one of the first looping roller coasters in operation. But the centerpiece of the park was its sea lion show – making Sea Lion Park in 1895 the world’s first marine life theme park.

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More than fifty years earlier, in 1841, Barnum opened his American Museum in Manhattan. Interspersed with the deceased animals on display were a few live ones, including snakes, monkeys, and Neptune, the giant northwestern sea lion.

One of the biggest draws to the museum were the belugas, the first of which was kept in a pool in the basement, then moved to a 25 ft long, 50 ft wide, 7 ft deep tank on the second floor. As Barnum was a showman, very little interpretation was given to the audience on the animals’ biology or their natural history. Rather, the exploits and courageousness of the men who hunted down and captured the animals was regaled to the enamored crowd.

watchingwhale

Belugas lived in the museum for only five years – from 1861 to 1865. Their life expectancy in this facility was very short and Barnum capitalized on it. A July 2, 1865 advertisement for the museum read:

BARNUM’S AMERICAN MUSEUM
. . . . TWO LIVING WHITE WHALES
weighing TWENTY THOUSANDS POUNDS per registers
Hudson River Railroad Co.,
after several months of immense labor and at an expense of
NINE THOUSAND DOLLARS,
were captured and brought to this city from the coast of Labrador and are
now disporting in that MINATURE OCEAN,
the MAMMOTH WHALE TANK,
the only specimen to be seen alive.
NOW IS THE TIME
to see these wonders as
THEIR LIVES ARE UNCERTAIN,
seven of the same species having died while being exhibited at this
Museum.
GEORGE, the great WHALE CAPTURER, will enter
the WHALE TANK every day at 10 3/4 A.M., 2 1/4 and 7 3/4 P. M.

The advertisement was for the eighth and ninth belugas to be on display at the museum. They would die eleven days after the ad ran, when the museum became engulfed in fire and they boiled alive in their second floor tank.

Can you be a crusader against cetacean captivity and support people making a film about PT Barnum?

A Pacific Northwest Whale Sanctuary Could Place a Delicate Ecosystem at Risk

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This post will examine why placement of an orca or beluga sanctuary by The Whale Sanctuary Project in the Pacific Northwest is a risky proposition. It is not an attempt to support such a sanctuary, but rather to show why two of the three proposed location zones could place both animals and the environment at risk. Orca Network’s proposed sea pen for the Miami Seaquarium orca Lolita (also known as Tokitae) is mentioned briefly in context, although the risk to this facility from the same factors is minimal and the risk to the local environment, for reasons to be discussed later, nonexistent.

I have also opted not to discuss the so-called sanctuaries being developed in highly risky environments by the National Aquarium and Merlin Entertainments/Sea Life Trust as these are privately owned facilities designed to house dolphin and beluga already under ownership of the facility developers.

What makes Whale Sanctuary Project (and Orca Network) unique is that it does not own any cetaceans. The desire to open a sanctuary is a necessary response to a catch-22 situation that has made it nearly impossible to gain court custody of a whale for movement to a sanctuary if a sanctuary did not exist. Furthermore, there is a political strategy at hand, as possession and successful care of a single orca or beluga will give those activists operating the sanctuary a significant advantage in arguing their case to the courts, legislatures, and general public.

The Whale Sanctuary Project has narrowed its final location to six candidates in British Columbia, Washington state, and Nova Scotia. As reference, the proposed 65-acre penned off cove or inlet will be comparable in size to the Blizzard Beach waterpark at Florida’s Walt Disney World (less the parking lot), as seen here in a photo I took while departing Orlando this past June.

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Although the Pacific Northwest is more alluring due to its potential for increased visitation and higher revenue than a location on Canada’s East Coast, the benefits – such as the storied lore of the resident orca populations and their ties with captive orcas and the proximity of two major international airports, are negated by the risk to the sanctuary animals and the risk those animals pose to the native ecosystem.

TAR SANDS

Kinder Morgan has been making headway in the Canadian courts to advance its Trans Mountain Pipeline expansion from Alberta to the Vancouver suburb of Burnaby. Originally scheduled to begin construction in September of this year, KM will now spend the first part of 2018 finalizing permits, with construction beginning in the second half.

When completed, the C$7.4 billion project will transport an additional 890,000 barrels a day from the tar sands of Alberta. The end result – greatly increased ship traffic through areas traversed by resident orca populations, which will result in both increased underwater noise pollution and the potential for chemical spill.

It is important to remember one thing while reading this post:

NO MATTER HOW FOOLPROOF A PROJECT IS, NOTHING IS EVER 100% FOOLPROOF.

Although the ships transporting the oil are expected to be double hull, a standard set in place after the Exxon Valdez disaster, a 2011 study of US Coast Guard responses to single and double hulled ship incidents showed the chance of a breach and oil spill was reduced by only 62%. That leaves a 38% chance of oil entering the environment.

spill-nathan-stewart-followup

Further, a tanker is not required to create a spill. In October 2016, the tug Nathan E Stewart sank approximately 500 km north of Vancouver (above photo) with 2400 liters of oil in its lube tank and 3700 liters of dirty bilge, a combination of water, oil, sludge, and other chemical byproducts of the engine room. A week after the accident, 1200 liters had been pumped from the vessel, sitting on the ocean floor at Edge Reef, but enough had escaped to create an ecological disaster that may take years to fix.

SEISMIC RISK

Washington state and the province of British Columbia sit along the Cascadia Subduction Zone. Fault lines within this region run directly beneath the cities of Victoria and Seattle, with a fault line approximately 20 miles south of the proposed location for Orca Network’s sea pen.* Over the past few months, researchers have been seeing indications of seismic activity leading many to believe that a long overdue major tremor will soon hit the region. Rather to go into detail on the fault-lines and quake history, I’ll present a bunch of charts.

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If the Whale Sanctuary Project facility is located between Vancouver Island and mainland British Columbia or within the San Juan Islands, it, like Orca Network’s proposed location, will receive minimal impact from tsunamis caused by oceanic currents. It’s also unlikely for chemical, radiactive, or physical debris from trans-Pacific tsunamis, like the one that hit Fukushima, to impact these areas (below).

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Earthquake activity could affect the sanctuary in two indirect ways. The first would be movement of the oceanic crust, which could affect any foundation established for netting. Second is the potential for landslide. If the 2018 British Columbia fire season is anything like this year’s, extremely large blazes could find their way to the coast. If this happens near the sanctuary location, it could make the ground above less secure.

At minimal, landslides caused by quakes or rain could cause physical damage to the animals, human visitors, or staff below, have physical impact on the net, and leave debris in the sanctuary area.

At it’s far extreme, a landslide could result in an internal tsunami effect. On July 9, 1958, at Lituya Bay, Alaska, an earthquake caused a landslide of 40 million cubic yards of rock, resulting in a tidal wave 1720 feet high, the equivalent of a 17-story building.

lituya bay pre 1958

USGS photo of Lituya Bay pre-1958

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USGS photo of Lituya Bay after the 1958 wave.

Figure-1-Lituya-Bay-Alaska-satellite-image-August-2001-Landsat-with-superimposed (1)
INVASIVE ECO-TYPES

If the whales escape the sanctuary due to damage to the net or other causes, they become non-native invasive animals within the natural environment. There are only two orcas currently in captivity, Lolita/Tokitae, and the SeaWorld orca Corky, who are native to the Pacific Northwest. Of the remaining orcas currently in captivity, they are either pure bred stock captured in Iceland, Russia’s Sea of Okhostk, Argentina, the Wadden Sea, or are hybrids between different eco-types that would not interbreed in the wild. There are no beluga populations in British Columbia or Washington state.

A number of animal rights activists have argued that it is best to get these orcas out of captivity and back into the wild, regardless of where they are released, as they will at last be free. I argue making such claims, especially when using environmental data such as wild behavior and movements to support their arguments, while negating the needs of the overall natural environment, is reckless and irresponsible.

Should they somehow survive on their own, escaped orcas and belugas will compete with resident orca populations for food, which as many are aware, is already a major issue affecting their survival. Furthermore, the potential exists for a non-Resident orca to mate within the at-risk native population. To quote Dr. Ingrid Visser, an adviser to The Whale Sanctuary Project: “…a hybrid calf, it would not contribute to the conservation of the wild orca population.”

I highly recommend that The Whale Sanctuary consider the risks of oil and other toxic spills, wildfires, seismic activity and hillside/mountainside stability, and the risk of introducing invasive animals into the fragile local ecosystem when conducting its upcoming environmental studies.

*Neither Howard Garrett’s 2014 Orca Network “Proposal to Retire the Orca Lolita to Her Native Habitat in the Pacific Northwest” nor Ken Balcomb’s 1995 Center for Whale Research “Comprehensive Retirement Plan” mention potential seismic risk, including existing faults, earthquakes, landslides, or tsunamis. However, it’s important to keep in mind that it is not necessary to include such information at this early a stage in the proposal process and that environmental factors will likely be addressed during the permitting process for Lolita/Tokitae’s sea pen with federal and state agencies.

End of the Days of the Manly Men

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There was a time starting in the 1960s, and lasting for four decades, when the great marine life parks of the world were overseen by a group of powerful men – some even called them Manly Men. Men with names like Millay, Jovanovich, Hertz, Holer, Kiessling, Lavia, and Busch.

These men knew what kinds of animals they wanted and they did what they needed to get them. They were showmen. If they wanted to have a chimp ride dolphins around a lagoon, that was what they were going to do, and doggonit, the audience would suck it in like heroin. Back then, obstructions were few and far between. They had the right connections – in political and government circles – and could easily cut through red tape.

Going on fifty years later and things have changed. Pedro Lavia has for years been out of the Latin American orca business and recently sold his Italian dolphinarium to a Mexican concern. He still owns and operates Zoomarine in Portugal. Arthur Hertz sold his Miami Seaquarium to the Spanish theme park operator Parques Reunidos, then passed away a few years later.

In Canada, John Holer’s Marineland is one of two Canadian institutions that would be effected by a proposed national prohibition on cetacean captivity. Recently, Ontario Captive Animal Watch acquired a copy of a C$21 million civil lawsuit filed by Marineland against the Ontario SPCA, a non-profit engaged by provincial law to act as Ontario’s animal welfare law enforcement agency.

Marineland makes a number of allegations against the OSPCA, chief among them that the OSPCA was working with animal rights activists in a joint attempt to to shut down all zoos and aquariums in the province, and that the timing of OSPCA charges against Marineland were intentional so as to negatively affect the perception of Marineland during federal hearings on the cetacean captivity bill.

At Sea World, George Millay was fired as President in the 1970s, years after he took a chance and leased a killer whale nobody else wanted – a young female captured in the waters of Washington State and named Shamu – a whale that would turn around the company’s disastrous losses from its first year of operation into extravagant profits for the next few decades. Millay would also be responsible for expanding Sea World from one to three parks (four if you include the more traditional theme park just north of Los Angeles known as Magic Mountain).

Shortly after Millay’s departure from the company he loved so much, Sea World was sold to book publisher Harcourt Brace Jovanovich for $46 million. Leading the company was William Jovanovich, who had worked his way up to CEO from being a textbook salesman in just seven years. Jovanovich wanted more killer whales. He had plans to build a new Sea World park in Texas and to expand overseas. When captures started to end in Iceland, Jovanovich and his Sea World executives received a permit from the National Marine Fisheries Service to capture up to 100 killer whales in Alaska for research, keeping ten at the Sea World parks. The permit (which will be covered in an upcoming post) was overturned in court and larger tanks that had been planned for San Diego and Orlando to house the additional ten whales were modified to promote breeding and nursing. This was the start of the Baby Shamu era.

Over the years, Harcourt amounted a huge debt and decided to sell off its most valuable assets – the theme parks. Companies that early on investigated buying Sea World, Cypress Gardens, and Boardwalk & Baseball included Disney and MCA, the parent company of Universal Studios. Eventually, it would be sold to brewer Anheuser Busch, which already operated its own Busch Gardens branded parks, for $1.1 billion. Busch would consolidate the park name from Sea World to SeaWorld as part of an agreement surrounding a trademark infringement case with Sea World Gold Coast in Australia.

MORGAN AND THE LOAN

This story begins in 1970, when Wolfgang Kiessling, a German airline manager, first arrived in the Canary Islands city of Tenerife. He fell in love with the town and, inspired by Miami’s Parrot Jungle (now known as Jungle Island), decided he wanted to open a bird park there. Spanish law prohibited foreign nationals from owning parks without a Spanish partner, so in 1972, instead of a park, he opened a six room luxury hotel. It just so happened that it was a very small hotel with a large bird park attached, called Loro Parque. This loophole in the law allowed him full control of the new park.

Adolphus Busch III opened the first Busch Gardens in Tampa in 1959, followed by another in 1966 in Van Nuys, CA, just north of downtown Los Angeles. The central attraction of each park, much like Loro Parque, was a bird park. As such, Busch and Kiessling established a good working relationship surrounding exchange of husbandry and conservation knowledge and of animals. The relationship grew even stronger when Loro Parque was confronted by animal rights activists over its acquisition of penguin eggs from Antarctica, an experience SeaWorld had encountered.

Busch had a problem and Kiessling could offer the solution. The breeding strategy that had been implemented by Jovanovich had proven so successful that the SeaWorld parks were running out of room to store their whales. Would Kiessling be willing to build a facility at Loro Parque to house a few of them? Indeed he would, and in February 2004, the Loro Parque Facility Service and Loan Agreement was signed. In 2006, four orcas, two from Orlando and two from San Antonio found their way to the Canary Islands. Two calves would be born there, with one passing away at less than a year old. In November 2011, the rescued orca Morgan was transported from the Netherlands to Loro Parque’s Orca Ocean facility.

Busch sold his company in 2008 and SeaWorld has gone through a number of ownership and management transitions since then. On Tuesday November 7 of this year, SeaWorld issued an earnings press release which stated in one small paragraph:

During the three months ended September 30, 2017, the company amended its existing agreement with Loro Parque concerning the orcas at that park. The agreement was amended in order to end its business relationship due to a contractual dispute. As a result, the company recognized an impairment loss of approximately $7.8 million during the third quarter of 2017.

Neither the press release nor the 10Q filed the following day with the SEC mentioned anything about a transfer of ownership to Loro Parque, but rather an amending of an existing agreement. The transfer of ownership was only determined through direct correspondence by myself and others with SeaWorld’s communications department. This leads to two questions:

  1. Since $7.8 million seems like a very low amount, did SeaWorld just end and write-off the agreement or did they sell the orcas to Loro Parque? The $7.8 million loss is actually the difference between what SeaWorld was paid as a fee under the agreement and its fair value. According to SeaWorld, those funds were donated to a research and conservation fund. I believe that if SeaWorld has sold the orcas themselves, the payment will be recorded after December 31, so that it shows up in the 2018 fiscal year for both SEC and IRS filings.
  2. Did the transfer of ownership on the orcas include Morgan? To come to an answer, it’s important to examine some misconceptions and determine if SeaWorld has ever claimed to owning her.

After two years of research scouring more than 4,000 pages of court documents, the entire public online database of the Free Morgan Foundation, four years of SeaWorld financial records, statements, and press releases and hundreds of mainstream media reports, and after interviewing dozens of people associated with the SeaWorld-Loro Parque relationship, I am ready to share my analysis of the Morgan situation here with you now:

THE MMIR

One item that often leads to the “SeaWorld owns Morgan” theory as a conspiracy is that although some sources (see below) indicate that SeaWorld may have taken on ownership, she is never listed in the Marine Mammal Index Report, managed by NOAA Fisheries and required under the Marine Mammal Protection Act. An MMI filing is required whenever a marine mammal is either owned by a US entity, housed in a facility on US soil, transferred from a US facility, gives birth, or dies. The two offspring born at Loro Parque appear in the MMIR since both were the offspring of American owned orcas that had been transferred from American facilities, and, under the breeding stipulations of the agreement between the two parks, are both the property of the American company SeaWorld.

Morgan never appears in the Loro Parque MMIR for two simple reasons: 1. she has never been in a US facility, and 2. SeaWorld never actually claimed to own her.

THE SENTINEL ARTICLES

One of the biggest sources used to support the “SeaWorld owns Morgan” theory are a number of articles written by Jason Garcia for the Orlando Sentinel. In one, titled: “SeaWorld wants to acquire Dutch Killer Whale” (July 19, 2011), he writes:

SeaWorld Parks & Entertainment is attempting to acquire a young female killer whale rescued off the coast of the Netherlands last year.

The killer whale, nicknamed “Morgan,” was captured in June 2010 after a ship spotted her swimming alone and starving in the Wadden Sea. She has been living since in a Dutch marine park known as Dolfinarium, where, with SeaWorld’s assistance, she has been nursed back to health.

SeaWorld is now seeking to have Morgan transferred to Loro Parque, a marine park in the Canary Islands that has five other SeaWorld-owned killer whales on display. Dolfinarium this month applied for a government transfer permit.

Orlando-based SeaWorld Parks said Tuesday that it has no plans to bring Morgan to the U.S., where the company operates SeaWorld marine parks in Orlando, San Diego and San Antonio.

“The plan is for her to join the group at Loro Parque and stay there long-term,” SeaWorld spokesman Fred Jacobs said.

SeaWorld would not say whether it will pay any compensation — in the form of money or other animals — to Dolfinarium in exchange for Morgan. The company said it has worked with the smaller Dutch park for many years, sharing animals and expertise, and that “assisting Dolfinarium with Morgan’s rehabilitation and helping them find a long-term home for her should be viewed in the context of our long-term partnership with them.”

Morgan, estimated to be about 2 years old, would become the 25th killer whale in SeaWorld’s corporate collection. There are only about 42 killer whales in captivity around the world, according to a database maintained by orca activists.

This is followed by “Rescued Dutch killer whale now part of SeaWorld’s corporate collection” (November 29, 2011)

Morgan, a young killer whale rescued off the Dutch coast in June 2010, joined SeaWorld Parks & Entertainment’s corporate collection on Tuesday.

The female whale was transferred from Dolfinarium, a park in the Netherlands where she had been since she was nursed back to health, to Loro Parque, a marine park in Tenerife, Spain, where SeaWorld currently keeps five other whales.

SeaWorld has said it does not plan to bring Morgan to the U.S. She is the 27th killer whale in SeaWorld’s collection, including eight at SeaWorld San Diego, seven at SeaWorld Orlando, and six each at SeaWorld San Antonio and Loro Parque.

Although Garcia uses the term “corporate collection,” much confusion has arisen over the years as to what entails SeaWorld’s collection.

Throughout its financial filings with the SEC, SeaWorld refers to its “animal collection.” It never gives a monetary figure for the value of the collection nor an actual number of animals that it owns outright. In numerous places in its SEC filings and on its websites, it expands this term to “collection of animals in our care.” The total number of animals in SeaWorld’s “collection” will vary during any given time of year as it includes animals owned by the companies, animals on loan from other institutions, rescued animals undergoing rehabilitation at its and other facilities, and Morgan.

Which is why in a 2014 discussion with Fred Jacobs, then SeaWorld’s Vice President of Corporate Communications, when I asked if SeaWorld owned Morgan, his response was, “We’ve been working very closely with Loro Parque as she’s now part of the collection of animals we care for there.”

THE SEC FILINGS

SeaWorld’s SEC filings, starting with its initial public offering in 2013, clearly indicate that the number of orcas “on loan” to Loro Parque includes Morgan. But one must not take this literally if one is to understand what it means. The agreement with Loro Parque is not just a loan, it’s a complete service agreement whereby SeaWorld oversaw all aspects of the orca operation at Loro Parque, including the design and construction of the Orca Ocean facility. Morgan would fall under the service portion of this agreement, with SeaWorld taking full responsibility for training, husbandry, and veterinary care, but she would not be considered a loaned animal as they did not claim ownership of her.

When compiling the SEC filings, SeaWorld’s accountants found it easier and simpler to state “SeaWorld has six orcas on loan with a third party” than “Six orcas are on display at a third party facility under a service and loan agreement.” The terminology required for an accounting report is not the same as required for a legal report.

SO WHO OWNS MORGAN?

Neither SeaWorld nor Loro Parque has ever claimed ownership of the whale. But the answer as to who actually owns her lies in plain sight within an April 19, 2017 article on the German website Zoosmedia-echo (“So lügt PETA über den Loro Parque” by Philipp J. Kroiß). In the article, both endorsed by Loro Parque and republished in Spanish on its park website under the title “Los 5 motivos que desenmascaran una campaña de soborno,” the piece states unequivocally:

„Orca-Mädchen Morgan wird nicht ausgewildert“

Das kann man nicht dem Loro Parque vorwerfen, denn das wurde von den höchsten gerichtlichen Instanzen der Niederlande, in deren Besitz Morgan ist, so entschieden.

Translated to English:

“The female orca Morgan cannot be reintroduced”

This cannot be blamed on Loro Parque, because that was decided by the highest judicial authorities in the Netherlands, which owns Morgan.

However, evidence to the contrary exists in a 2014 letter to Matthew Spiegl, attorney for the Free Morgan Foundation, from the then Minister of Agriculture for the Netherlands, Sharon A.M. Dijksma, which states:

I can inform you that . . . the Kingdom of the Netherlands is not the owner of orca Morgan, nor can I disclose to you who the owner is. In Dutch law the guiding principle is that the owner of a good is deemed to keep this private and as such is the owner. To determine who is the real owner of orca Morgan also depends on the intentions of and agreements made by the private parties involved in this case – Dolfinarium Harderwijk, Loro Parque and SeaWorld.

Can Morgan be bred at Loro Parque?

In documentation obtained by the Free Morgan Foundation, the only prohibitions specified in the cover letter are those related to commercial activity involving the whale. In fact, there are no prohibitions on breeding and the marked box on the EU permit specifically states that she is “to be used for the advancement of science/breeding or propagation/research or education or other non-detrimental purposes.”

How does one involve her in shows without having them considered commercial entertainment and how does one breed her? It could be argued that performances are a form of enrichment. It could also be argued that the attendance increase at Loro Parque was negligible upon the introduction of Morgan, so she would not have been used as a commercial draw to increase revenue.

As for breeding, it could certainly be done under the auspices of “research.” However, cross-breeding two distinct ecotypes in this day and age simply to research orca pregnancy makes as much sense as sticking a number of Icelandic orcas or Russian belugas in the earthquake, wildfire, tsunami, and toxic-spill prone coast of Western Canada (more on that in an upcoming blog post covering sanctuaries).

A number of people I spoke with alluded that the disagreement over the Service and Loan Agreement arose over SeaWorld’s decision to ban breeding. Had Morgan bred with a SeaWorld orca, by the original provisions of the agreement, the offspring would be the property of SeaWorld. Although there’s no indication the provisions of the agreement were altered over the years, it’s certainly possible that it was, especially when one considers the provision in the agreement of Anheuser Busch being the official beer supplier to Loro Parque, which no longer would need to be in effect once InBev (which had purchased AB) sold the parks to Blackstone.

There’s another potential precedent which, had it been applied to Loro Parque’s agreement, would allow the Spanish park to take ownership of every other calf. This was the final version of an arrangement that Augustus Busch III formulated with John Holer for a breeding loan between SeaWorld to Marineland.

Finally, Loro Parque’s recent blog post against the French government’s ban on breeding captive dolphins and orcas certainly fuels speculation that a breeding program may have been in the works between the Spanish park and Marineland Antibes.

Times are certainly changing and the era of the Manly Men is coming to an end in the West. But don’t fret. A new breed of Manly Men is emerging in Russia and China, taking their parks to extremes their Western counterparts couldn’t even imagine.

NOTE: All court documents linked to this blog post regarding SeaWorld have been made publicly available by the overseeing federal courts and were accessed legally and through proper channels via the US Courts PACER service. Sources for all other linked documentation to this blog have been properly credited.

 

Lack of Accreditation Should Be a Red Flag

CAZA 2012 logo

When we take a look at the five accrediting associations for US and Canadian zoos and aquariums, we begin to see the importance that membership and accreditation plays.

“Thanks to its comprehensive accreditation program and Code of Professional Ethics, CAZA-accredited zoos and aquariums are recognized for their high standards of animal care.”

– Canadian Accredited Zoos and Aquariums (CAZA)

“We promote cooperation between zoological gardens and aquariums with regard to the conservation, management and breeding of animals in human care and we encourage the highest standards of animal welfare and husbandry.”

– World Association of Zoos and Aquariums (WAZA)

“Accreditation:

  • Provides the public with essential connections to the natural world;
  • Develops public confidence by means that an institution meets or exceeds current professional standards;
  • Provides a publicly recognized badge signifying excellence in, and commitment to, such things as animal management and welfare, safety, conservation and education; and
  • Distinguishes AZA-accredited zoos and aquariums from ‘roadside zoos’ and for-profit menageries.”

– Association of Zoos & Aquariums (AZA)

“ZAA Accreditation is a rigorous, multi-phase process. The applicant must support the mission, vision, and goals of ZAA.”

– Zoological Association of America (ZAA)

“The Alliance administers a stringent accreditation process for its members. Accredited members must uphold Alliance Standards and Guidelines to optimize the psychological and physical health of, and environmental conditions for, individual marine mammals under their care, and to maximize the educational and scientific value of their collections as a whole.

– Alliance of Marine Mammal Parks and Aquariums (AMMPA)

Tomorrow, the Standing Senate Committee on Fisheries and Oceans in Canada will vote on Senate Bill 203, which would outlaw cetacean captivity nationwide. Only two display facilities are directly affected by the bill.

One, the Vancouver Aquarium, is accredited by the AZA, CAZA, and AMMPA.

The other, Marineland Canada, near Niagara Falls, is not accredited as a zoological care facility at all. In fact, the park dropped its membership in CAZA in May, citing major construction in the park during the Summer, evidence of which has not appeared.

Typically, when a zoo, aquarium or animal attraction drops its membership, it immediately seeks out accreditation with a different organization. Such was the case with the Pittsburgh Zoo when it opted to drop out of AZA over a concern on elephant husbandry standards and joined ZAA.

This is not the case with Marineland. It now exists as one of the largest unaccredited animal parks in North America.

Yesterday, Marineland filed a C$21 million lawsuit (complaints currently undisclosed) against the Ontario SPCA, the organization mandated by the Ontario Parliament’s OSPCA Act to enforce animal welfare law in the province. As someone who supports zoos and zoo reform, and as former zookeeper myself, I urge the Senate to consider both the lawsuit and lack of accreditation as red flags, and to take into account that the park may now be operating as a roadside zoo which does not meet the established husbandry standards set forth by the five zoo and aquarium accreditation associations for the US and Canada.

Why’s Lolita Still in that Tank?

Miami_Oceanarium

When orcas, known throughout the attractions industry as killer whales, were first being captured and sent to parks, aquariums, and attractions in the 1960’s and 1970’s, operators had no idea where to place them. Sometimes, they would put them in tanks intended for pilot whales, then the largest cetaceans on display. More often, they would end up in tanks designed for the smaller bottlenose dolphins.

The fourth orca in captivity, Shamu, is a good example of this practice of placing orcas in tanks built for much smaller animals. When the failing Sea World park in San Diego attempted to reverse its fortunes by leasing the female orca from the Seattle Aquarium’s Ted Griffin in 1965, it placed her in an existing tank slightly longer than a school bus, where she would remain until a new, larger complex of tanks was completed in 1970. On the aerial image below, the size of her original tank (C), which at times held up to three orcas simultaneously, is placed into context when compared to the aquatic space allocated for dolphins (A) and pearl divers (B).

seaworld 1965

At the Miami Seaquarium, a much smaller tank housed the male orca Hugo, who was kept there from 1968 through 1970, when he was joined the female orca Tokitae, renamed Lolita by the Seaquarium, in the newly constructed Whale Bowl.

hugo38

The tank that originally housed Hugo is now used to display the much more size appropriate manatee.

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When the Whale Bowl opened in 1970, it was the second largest orca tank in the United States,  after the newly opened second generation Shamu Stadium in San Diego. It is now the smallest killer whale display enclosure in North America.

seaquarium_722x406_scaled_cropp

Although Hugo passed away in 1980, Lolita has remained in the tank for close to fifty years, and since his death, she has remained there alone.

But there were two instances where she almost moved to a larger tank.

BATTLE OF THE KEYS

In 1991, Seaquarium owner Arthur Hertz told the Miami Herald, “Seaquarium is tired. It’s an old facility with no modernization for the last 20 years. If we’re going to retain it, we’ve got to rebuild.”

That statement came with a $70 million proposal to demolish almost the entire property and replace it with a new marine life park, waterpark, and restaurant/nightclub. Even though the park was devastated the following year by Hurricane Andrew, which killed a number of the park’s fish and sea lions and caused significant damage to the facilities, the plan continued until it was derailed in an appeals court by a neighboring community.

The Village of Key Biscayne is home to 13,000 residents and the only way on and off the island is over the Rickenbacker Causeway, crossing over a number of bridges and through Virginia Key, home of the Seaquarium. Residents of the Village have long had concerns that construction on Virginia Key would cause prolonged delays getting to and from the island, which is why the Village of Key Biscayne sued Miami-Dade County, which had approved the construction plan and is the owner of Virginia Key, and the Miami Seaquarium, which leases its land from Miami-Dade, to prevent the rebuilding of the park.

And the Village lost.

Then, Key Biscayne took its case to an appellate court, arguing that because the property was zoned as “Parks & Recreation”, the County’s Comprehensive Development Master Plan required that new construction must be “complimentary” to the existing property. The Village was able to show that by demolishing almost all structures, the new structures would not “compliment” the Miami Seaquarium as it existed prior to construction. Hertz determined that continued litigation was not in his best interest and dropped his plans.

9/11, DEBT, AND A SALE
new-tank-bulletin

Almost a decade later, on July 31, 2001, the Seaquarium announced that it would begin construction on a new $17.5 million facility for Lolita, advertised as being five times the size of her current space. While the Whale Bowl held 1/2 million gallons of water, the new facility would hold 2 1/2 million gallons.** At the time of the announcement, building permits had already been issued by the County.  To finance the new orca facility, the park used its entire animal collection and Lolita’s $1 million insurance policy as collateral to secure a loan.

Just over three months later, four airplanes would be hijacked, two crashing into New York’s World Trade Center and a third into the Pentagon. Florida’s tourism industry was devastated. In the months after the attack, tourism business declined more than 20% across the state. The plans for the new orca facility were mothballed and have not, to date, been resurrected.

By the time the state’s tourism industry had recovered in 2003, the Seaquarium faced a new challenge. In September of that year, after a tip from animal rights activist Russ Rector, county personnel spent two days inspecting the electrical systems and structures within the park, citing it for 125 violations. The Seaquarium was advised that it had to fix the problems immediately or face a shutdown within a few days.

Between 2003 and 2013, only one major construction project – 2007’s Dolphin Harbor interactive swim with dolphins facility – took place at the park. Over the decade, more than $20 million was incurred in infrastructure improvement costs, and the park was building a sizeable debt.

In December 2013, the Miami Herald broke the news that Arthur Hertz was discussing a sale of the park with Palace Entertainment, the American subsidiary of Spanish theme park operator Parques Reunidos (PR). PR already owned Sea Life Park in Hawai’i and Marineland Antibes on the French Riviera, and at the time managed L’Oceanografic in Valencia, Spain, Europe’s largest aquarium and dolphinarium (now managed by the Vancouver Aquarium). As part of the sale, Palace would absorb the park’s debt. The deal was finalized in early July 2014.

FOX IN THE FOREST

In 1992, Hurricane Andrew caused significant damage to South Dade County, including the Miami Metrozoo. The community was also hit hard that year by the closure of Homestead Air Force Base as a result of hurricane damage (it reopened two years later as an Air Force Reserve Base).  County leaders looked for a way to improve economic conditions in that part of the county and in 1993, a feasibility study was underway to build a theme park next to the zoo.

download

In January 2014, the county announced that out of six proposals and four semi-finalists, only two companies would be allowed to bid on the project. One of the bids came from a German dinosaur park operator, who proposed robotic dinosaurs and an earthquake simulator. The other came from 20th Century Fox, whose “Miami Wilds” concept featured a theme park based around the studio’s various film and television properties, an Ice Age waterpark, a high end shopping and entertainment center, a live performance theater, and a 400 room luxury hotel. Eventually, the dinosaur park pulled out, and by October 2014, Fox was busy negotiating with the County for its $930 million themed resort.

In late 2014, environmentalists began expressing concerns about endangered pine woodlands on the property, exacerbated by the late 2016 listing of the Miami tiger beetle, which is found in those woods, on the endangered species list. The county slightly downsized the project, eliminating the hotel, delaying the theme park, and moving the waterpark and entertainment center locations from undeveloped land to an existing parking lot. Fox remains in talks to make the project a reality.

What does this have to do with the Seaquarium?

The timing of the Seaquarium’s purchase by Palace Entertainment coincided with Fox winning the bid for the new theme park project, and both were subject to County approval. It should not come as a surprise then that Fox’s partner to manage the Miami Wilds theme park and waterpark happens to be none other than Palace’s parent company, Parques Reunidos, which stands to earn between $4.5 and 5.5 million per year in management fees once the entire complex is open.

MIAMI LAGOON

That’s not to say that the Miami Seaquarium hasn’t been profitable to its new owner. According to a 2016 prospectus issued when Parques Reunidos was preparing to become a publicly traded company, the park in 2015 (the first full year of operation under the new ownership) contributed 4% of PR’s overall revenue for the year.

Snorkeler.  Red sea

The prospectus describes a new attraction, slated for a 2017 opening:

The Miami Lagoon will be a new high-end snorkeling lagoon along with a new restaurant, bar and banquet facility, expected to open in 2017 at the Miami Seaquarium. It will feature a 1,500 square meter snorkel reef interactive experience along with an up-sell option for day visitors and dolphin interactive participants, as well as a sand beach with premium cabanas and island loungers. The restaurant will feature a classic Florida theme, be open to all visitors of the Seaquarium and contain a banquet space with views of the Miami skyline and a catering kitchen. We expect that the banquet facility will fill a known demand for climate-controlled, event-catered space in the Miami area. The Lagoon will occupy an area of 1.5 hectares and is expected to enhance the customer value proposition at the Miami Seaquarium and lengthen visitors’ stay, as well as increase the number of revenue streams at the park, including additional admission, food and beverage and merchandise revenue. We anticipate a total capital expenditure of €9.9 million [equivalent to US$11.6 million as of the writing of this blog post]

There will be no Miami Lagoon opening this year. Since acquiring the park in 2014, Palace has invested just over $10 million in improvements, including a new classroom and penguin exhibit. This year, the Seaquarium began a renovation of its entrance and retail areas, scheduled for a Spring 2018 premiere (though there might be a delay due to damage and cleanup from Hurricane Irma). However, Palace has not yet invested the level of capital needed to construct a major attraction such as Miami Lagoon or a new orca facility.

According to one of my sources with close ties to Parques Reunidos, much of the funding earmarked for expansion of the Seaquarium was rerouted to its sister park Marineland Antibes in France (I have not yet confirmed this through a second source, so I caution against taking this statement as verified fact). While the Seaquarium’s attendance may be in the 400,000 to 500,000 range per year, Marineland is much more profitable, with annual attendance between 900,000 to 1 million prior to the devastating flooding two years ago. The rebuilding of the French park is taking longer than expected and costs have been skyrocketing to bring the park up to code as building regulations throughout the French Riviera have become much more stringent following the storm of 2015.

Marine-land-france-flooded

To understand the severity of the damage, it’s best not to think of the damage as the result of severe rain, but rather as the end product of a rapidly moving wall of water, full of mud, debris, filth, and chemicals, moving with the intensity of a tsunami.

THE STORM OF 2015

On Friday, October 3, 2015, the French Riviera started to see record rainfall.  Between 7 p.m. and 10 p.m., 7.7 inches had fallen in Cannes, 4.3 inches in Nice, enough to fulfill the expected monthly rainfall in the city predicted for the entire month of October, and in Antibes, 5 inches.

It immediately became clear that the region was unprepared for such a storm and that tragedy would soon follow.  On the second day of the rain, as the Riou de l’Argentière stream in the town of Mandelieu-la-Napoule began to overflow its banks. Eight residents living in the same neighborhood raced their cars to their underground car parks in an effort to make it home to safety, only to be drowned within minutes by the oncoming surge.

In Cannes, the opulent city best known for its wealthy visitors and famous film festival, nine people were arrested for looting on the second night of the rain, with the police continuing their search for many more. When the rain subsided in Cannes, rats left the flooded basements they usually reside in to feast on detritus that had been swept downhill through the city to its famous beaches.

The two days of record rain caused streams, creeks, and rivers to swell.  In Antibes, bodies of water ranging from the Brague River to the smaller Vallon des Horts stream grew higher with each passing hour. Where they converge, the force of two raging currents uniting caused a surging high energy wave to crash over the bank early Saturday night.  Some reports state that a levy may have been broken around this point.

The wave first swept through the Pylône campground, favored by British retirees, who rent the trailers and mobile homes placed throughout the property.  62 year old British tourist Linda Martinez was drowned inside her trailer.

Following the campground, the wave next hit Antibes Land, a small local amusement park.  Children kept from being swept away by waiting out the flood on top of a Toboggan slide, while a showman unable to make it to his trailer held onto a pole while the water raged around him.

The water then arrived at the wide empty parking lot of the Marineland Resort.  At this point, the crest of the wave was 6 1/2 feet high.  The water spread into multiple directions.  Part of it went into the southern part of the Resort, where it flooded the first floor of the hotel and the park’s sea lion and penguin pools with mud and debris collected from the river and elsewhere along the flood’s journey.  The dolphin show tank was spared due the grandstand’s position in relation to the oncoming wave.  However, the aquarium was hit hard, with almost all sharks and tropical fish dying due to contamination.

The remainder of the resort, including the waterpark and Kid’s Island were also hit hard. Most of the smaller petting zoo animals perished.  A Marineland manager reported seeing a fox swimming near the hotel.

marineland channel

Channeled between the tall back wall of the polar bear exhibit and the neighboring grandstand, the wave circled around the large killer whale stadium, the only facility in continental Europe housing the animals, inundating the five large tanks.  At the same time, it went through a portion of Marineland Lagoon, picking up turtles and rays and dropping some of them in an adjacent parking lot. Turtles were found around the property, including one in a flooded filtration room.

MAJOR DRAW IN A WORLD OF MINOR ATTRACTIONS

Miami itself has had its share of storms and the Seaquarium has lost operating days,  revenue, and animals as a result. Hurricane Andrew (1992) shut the park down for four months, while Wilma (2005) shut it down for 3 1/2. The park lucked out with this year’s Hurricane Irma, suffering minimal damage as compared to previous storms and only being closed for a month as a result. One, however, begins to wonder, what would have happened to the park and its animals had Irma’s eye, as originally predicted, made a direct pass over Miami. Thousands of people followed my coverage on the Final Days Facebook page of both the storm and its effect on the state’s animal attractions. A large number posted comments asking why Lolita was still in that tank while Virginia Key was being bombarded by heavy rain and winds that in some instances exceeded 100 miles per hour.

An easier question to answer is more basic at its core: simply put, why is she still in that tank at all?

Unfortunately, with the exception of the 2016 prospectus, which listed revenue and attendance for each Parques Reunidos property in 2015, the company’s financial documents list such figures as a combined total for each operating subsidiary. Thus, the Seaquarium’s numbers for 2016 and into 2017, which will be drastically affected by the one month closure due to this year’s hurricane and the discounted admission offered upon reopening, are merged with the family entertainment center, historic theme parks, and waterparks that all fall under the Palace banner.

Without knowing the specific numbers, but understanding the attractions industry, the answer as to why she’s still there is twofold.

First, as much as some would like to dispute it, she’s still a major draw, especially for those living in or visiting South Florida who don’t want to drive to Orlando to see an orca. An immediate loss of Lolita would result in an immediate and sudden loss of revenue to the park. One estimate I’ve seen shows it dropping by 50%. To supplement the loss of the whale, the park would need to bring in blockbuster attractions, and right now, it appears to only have financing for a number of smaller attractions. As SeaWorld learned with the new Orca Encounter show and Ocean Explorer attraction at its San Diego park, a “more attractions for less money” (direct phrase from Joel Manby) strategy risks significant losses in attendance.

The second factor involves the park’s strategy to counter animal rights rhetoric. Seaquarium staff, including head curator Robert Rose, have continually countered animal rights activists’ statements and demands by declaring that Lolita would die if in a sea pen or released to the wild (often using the orca Keiko of “Free Willie” fame as an example). With these statements now documented in the public realm, should she be placed in a sea pen by either activists or by her owners themselves and not die, as the Seaquarium’s management claims she will, they will have created a public relations catastrophe within the company. Not only will their expertise on the other animals at the Seaquarium be brought into question, but so will the expertise of Parques Reunidos as a whole throughout its collection of zoos, aquariums, and marine life parks, especially at the highly profitable Marineland Antibes, which houses four orcas. This is one of the  risks of speaking “corporatese,” the concept of stating the company line with selective jargon.

Quite simply, until a huge infusion of cash is invested in the Seaquarium to provide an attraction that will pull in numbers comparable to Lolita, the park needs her in that tank for it to survive. If she goes, the park suffers financially. If she goes in a sea pen and the statements of management are proven to be inaccurate, then the company as a whole goes into crisis control. She’s not in the Whale Bowl after 47 years because it’s the best environment for her. She’s there because she makes money and none of her owners have gotten around to building her a bigger bowl.

MISTER GARRETT’S OPUS

There are those who say she shouldn’t be in the park at all, that she should be in a sea pen near her pod, ready for release to the wild should the time come.

To achieve this goal, animal rights activists, including Howard Garrett of Orca Network, conducted a lengthy and widespread lobbying of NOAA Fisheries to include Lolita on the Southern Resident Killer Whale listing under the Endangered Species Act (ESA). This was followed by an ongoing lawsuit against the park, the latest of many. This current case argues that the Seaquarium has violated ESA standards by keeping her in the tank. This argument is aided by a recent USDA audit which indicated that the Whale Bowl may not meet the minimum dimensions as set out in the Animal Welfare Act.

Let’s imagine for a moment that the court rules in favor of the plaintiffs, and orders Lolita’s release to a sea pen in her native waters. The ESA listing makes this process much lengthier and more complicated than in the past – though not impossible. Garrett has a plan.

Keep in mind that placing a captive cetacean into the wild can be a complicated process for both the animals and with how the people working on the effort relate to each other. With the recent release of the South Korean dolphins, the public saw how a number of NGO’s working together with government agencies could successfully implement a reintroduction to the wild.

But I must also bring up Keiko, which is a unique case unto itself, for although the effort yielded a number of positive results along with a number of disappointing ones, the final determination on whether or not the release of Keiko was successful or not tends to split along partisan lines – those opposed to captivity are likely to consider it a success while those working within the zoological industry and zoo supporters often deem it a failure.

Whichever way one deems the outcome, one thing is apparent – from an administrative perspective, it was highly inefficient. Although David Kirby’s Death at SeaWorld and Mark Simmons’ Killing Keiko look at the operation from opposite ends – they both share common elements – distrust among team members, funding drying up, a sudden shift in management.

As one activist shared with me, “Since Keiko died, Lolita is the one orca who has gotten the most attention, the most support, raised the most money. Even more than Tilikum, when he was alive.” Being such a high profile case, should it happen, her relocation and release can either go smoothly like the Korean dolphins, or it could be wrought with suspicion, funding issues, and management changes like Keiko. It depends on who’s in charge, who’s on the team, and on long-term funding (may suggest an endowment).

So Garrett has his plan. But what happens if others come out of the woodwork, wanting a piece of the pie, wanting to be the one to take the glory for returning Lolita to her home waters? It’s very possible. There are other plans already out there, such as that prepared by documentary filmmaker Michael Harris (presented here along with the Garrett plan for readers to browse, compare, and contrast. This should not be considered an endorsement of either). I’m also aware of two other plans that have yet to be publicly released. A court case to argue the merits of one plan over the other has a strong potential to delay expedition.

In the case of multiple plans, the court could order competing stakeholders to work together in devising a compromise plan. Their success would depend on their ability to get along (for instance, the two above plans would likely never be merged based on the historic relationship between Garrett and Harris, but that’s for another post, and I’ll probably request interviews with both so that I can keep the piece as centered as possible).

IN THE END . . .

In 2000, I was working for IMAX Corporation as an Operations Manager at its theater in South Miami. We were showing a film called Dolphins and had contracted with SeaWorld to sponsor the film – a perfect tie-in, we thought at the time, with Discovery Cove just about to open.

The day we launched the film, I went to my office and the light on my phone was blinking. I picked up the receiver and listened to the voicemail. It was Arthur Hertz. “How could you do this? Why are you partnering with Orlando?” he asked. “If you don’t support your local community, you’re not going to succeed in this town and you’ll go out of business. You should have called us first.”

I called him back immediately. I explained that I was new to town and hadn’t been to the Seaquarium yet. I’d like to visit and maybe we could discuss future partnerships. He was very pleased and invited me for a personal tour. The date was set.

When I arrived at the Seaquarium, I went to the ticket booth and asked for him. “Arthur’s not here today,” I was told. “In fact, he’s out of town.” I explained my situation and the young man let me into the park, free of charge, to look around. I did, for 25 minutes, realizing how old and antiquated the place felt (keep in mind this was seventeen years ago). After peeking inside the Whale Bowl, I turned around and left.

That’s the only time I’ve been to the Seaquarium.

Trying to determine Lolita’s future is a bit like that. It’s like anticipating a private tour, and you end up disappointed and wandering around by yourself. It’s really a craps shoot. I wish I could look into a crystal ball and tell you what will happen, but I can’t. I can only tell you what might happen.

  • She could be court ordered to a sea pen, under the auspices of Garrett or other activists.
  • The Seaquarium could be court ordered to develop a sea pen themselves and care for her there.
  • A court could order her moved to a larger facility four hours up the Florida Turnpike.
  • The Seaquarium could move her there of their own volition.
  • A huge investment could be made by Parques Reunidos to build a larger tank either at the Seaquarium or Miami Wilds.
  • Or, as a number of animal rights activists, including Russ Rector believe, she will continue to live out her life and die in that tank.

Her future lies with the courts and with her owners.

 

**Aquariums and marine life parks tend to discuss the measurements of their tanks in volume rather than spatially, as millions of gallons sounds much more impressive than the feet or meters that constitute length, width, and depth. In some instances, such as Kiska’s tank at Marineland Canada, this creates problems in determining if standards are being met as the tank is irregularly shaped and spatial measurements have not been made available.

I have also opted not to discuss the issue with the spatial dimensions of the Whale Bowl at Miami Seaquarium as that is discussed at length throughout the internet. A simple Google search of Lolita + orca + tank + size should take you there.

 

Patriotism & Etiquette: A Failed Football Team Owner Takes on the NFL

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Yes, Donald Trump owned the New Jersey Generals of the failed United States Football League. And yes, Donald Trump failed in his bid to purchase the NFL’s Buffalo Bills in 2014. So there might be something personal in his recent attacks.

And why is this showing up on Final Days?

Well, when I started Final Days of Conventional Wisdom back in the 1920s, the concept was to explore how we relate to the planet and to each other as humans. And this is very much a human issue.

The polarized nature of a fight over free speech vs patriotism that is being dragged out between the grassy fields of the NFL (and the wooden floorboards of the NBA) and the carpeted halls of the White House has set the internet afire with lots of false information. So, it’s fact check time.

WE ARE REQUIRED TO STAND FOR THE NATIONAL ANTHEM.

The etiquette for conduct during the National Anthem is codified into US law, as laid out in the Flag Act , signed into law by President Roosevelt on June 22, 1942. The stipulations for the National Anthem appear in Title 36 (Patriot Societies and Observations) of the United States Code, Section 301, as follows:

(a) Designation.—The composition consisting of the words and music known as the Star Spangled Banner is the national anthem.
(b) Conduct During Playing.—During a rendition of the national anthem—
(1) when the flag is displayed—
(A) all present except those in uniform should stand at attention facing the flag with the right hand over the heart;
(B) men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart; and
(C) individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note.
(2) When the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed.

There are two important things to note here:

First, the wording of the code states “should,” not “must” or “shall” as is often found in law, meaning the code is a recommendation rather than a mandate.

Second, this code is non-enforceable. There is no criminal action that can be directed to those who do not stand for the National Anthem and/or place their hands on their hearts or salute. The only persons required by law to salute would be active servicemen in the military or other government employees whose codes of conduct within their departments require they conduct themselves in such a manner.

While players are not breaking the law when not standing or being present for the National Anthem, they could be violating team or league conduct rules, but that is a contractual issue, not a criminal one.

One last note on this section: Title 4 (Flag and Seal, Seat of Government, and the States) of the United States Code, Section 10 states:

Any rule or custom pertaining to the display of the flag of the United States of America, set forth herein, may be altered, modified, or repealed, or additional rules with respect thereto may be prescribed, by the Commander-in-Chief of the Armed Forces of the United States, whenever he deems it to be appropriate or desirable; and any such alteration or additional rule shall be set forth in a proclamation.

Although the President is prevented from changing the code regarding conduct for the National Anthem (as it’s in a different Title of the code), this does allow him to add or alter rules of conduct regarding the flag itself. In other words, he could circumvent the issue of standing for the Anthem as a song by decreeing it mandatory to stand for the flag as an object when the Anthem is played.

NFL PLAYERS WERE NOT PRESENT AT THE SIDELINES FOR THE NATIONAL ANTHEM UNTIL THE MILITARY PAID THE NFL MILLIONS TO MAKE IT HAPPEN.

The National Guard recently paid various NFL teams millions of dollars over a four year period to bring in color guards, have returning soldier reunite with their families during games, and to be a primary advertiser in broadcast media and on websites, all as part of a recruitment campaign centering on NFL fans, after it determined that a similar campaign with NASCAR wasn’t working.

Omitted  from this claim is the fact that the NFL began returning the money last year to the federal government after complaints were levied by a number of US Senators.

However, this isn’t why players started leaving the locker room for the sidelines during the Anthem. The practice began as a response to the events of Sept 11, 2001, as a message of solidarity and patriotism – an expression of free speech as exemplified in the First Amendment.

IN EXCHANGE FOR SUPPORTING THE MILITARY, THE NFL WAS GIVEN TAX EXEMPT STATUS AND PAYS NO FEDERAL TAXES

There has never been any tax exemption deal involved with the teams’ National Guard arrangements nor the NFL’s support for the military and troops. The only tax exempt status in the NFL was for the League Office, which had been considered a nonprofit “trade association” under the law since 1942. In 2015, the League Office voluntarily gave up its tax exempt status after continued public confusion between its duties and status and that of the NFL as a whole. Meanwhile, each of the 32 NFL clubs has always been considered a for profit business by the IRS and has paid federal income tax on all revenue, including ticket sales, merchandise, and broadcast rights.

NASCAR IS MORE PATRIOTIC THAN THE NFL

While it’s true that all drivers and team members stand for the National Anthem before races, NASCAR’s relationship with the Stars and Stripes has been sketchy. In July 2015, the combined raceways that host NASCAR released the following joint statement:

“As members of the NASCAR industry, we join NASCAR in the desire to make our events among the most fan-friendly, welcoming environments in all of sports and entertainment.

“To do that, we are asking our fans and partners to join us in a renewed effort to create an all-inclusive, even more welcoming atmosphere for all who attend our events. This will include the request to refrain from displaying the Confederate Flag at our faciities and NASCAR events.

“We are committed to providing a welcoming atmosphere free of offensive symbols. This is an opportunity for NASCAR Nation to demonstrate its sense of mutual respect and acceptance for all who attend our events while collectively sharing the tremendous experience of NASCAR racing.”

The new policy was a request, not a ban, most likely because NASCAR knows its clientele and understands that an outright ban would result in a disastrous outcome for the stock car racing league. Efforts to encourage fans to exchange the Battle Flag of the Confederacy for the Stars and Stripes at tracks went unheeded and sportscasters have noticed continuously more and more Confederate flags appearing at races, especially after NASCAR issued its support for the Confederate flag’s removal from the grounds of the South Carolina statehouse.

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THE ISSUE OF KNEELING HAS NOTHING TO DO WITH RACE. IT IS ABOUT RESPECT FOR OUR COUNTRY, FLAG AND NATIONAL ANTHEM.

That’s a direct quote from our President’s personal twitter account. He’s both right and wrong. Decorum calls for standing during the anthem and placing one’s hand over one’s heart (unless a member of the military or a veteran, in which case it’s the military salute). Doing otherwise is considered by etiquette to be an act of disrespect….which is is why the kneeling began. In much the same way as the Blank Panthers salute during the 1960 Olympics, today’s athletes are using a platform of defiance against established patriotic protocol to convey a message of social injustice existing within the country’s legal systems. Unfortunately, between the President’s non-stop tweets and the numerous teams joining in the protest, much of the message was lost and it was re-framed by some as not being a social justice issue, but an action of defiance against the nation as a whole and the President specifically.

AND NOW….A MOMENT OF PATRIOTIC TRIVIA:

Prior to passing of the Flag Act in 1942, Americans saluted the flag with the Bellamy Salute, named after James Bellamy, author of the Pledge of Allegiance, and devised by James B Upham, who described it thus in his publication The Youth’s Companion:

At a signal from the Principal the pupils, in ordered ranks, hands to the side, face the Flag. Another signal is given: every pupil gives the flag the military salute — right hand lifted, palm downward, to align with the forehead and close to it. Standing thus, all repeat together, slowly, “I pledge allegiance to my Flag and the Republic for which it stands; one Nation indivisible, with Liberty and Justice for all.” At the words, “to my Flag,” the right hand is extended gracefully, palm upward, toward the Flag, and remains in this gesture till the end of the affirmation; whereupon all hands immediately drop to the side.

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From their simultaneous inception in 1892, the Bellamy salute and the Pledge of Allegiance went hand-in-hand, until the NAZI party in Germany and the Republican Fascist Party in Italy appropriated a similar technique, at which point, in the United States, the hand was realigned to cover the heart, as codified into law by the Flag Act.