Cetaceans in Captivity:
Some Positive Change, But Still Much Suffering

By William Rossiter, CSI President

CSI works hard for captive cetaceans. We need your immediate help with Mexico (see below), but we would also like to share some other projects with you, to show where your support is going. With limited resources and big ideas, we chose to put our efforts into changing the way entire countries deal with their captivity industry. We have made a real difference at the core of several major issues during the last few years, but we could not say much publicly. Now, with a little pride, we can. This is about some recent events and successes that deserve to be told, but first a bit of background.

CSI in 1995 stated carefully that: "It is the position of the Cetacean Society International that it is no longer justifiable for cetaceans to be captured or maintained in captivity for purposes of exhibition, research, or education. There exists a moral imperative for cetaceans in captivity to be maintained in optimal conditions for their physical and social well-being and for efforts to be made for their rehabilitation and release." That is still our position, but achieving it has been a continuous battle.

Cetacean captive display is a profitable growth industry, powered by entrepreneurs who do not care about dolphins, supported by people who want only entertainment. The ticket buyers do not know that all over the world, especially in developing nations and the Far East, more dolphins and whales are exploited every day in tragic and terrible ways for the enjoyment and profit of people. Cetaceans are taken from drive fisheries before their families are killed. They are pulled from small populations in remote regions where no one knows or cares. They fuel the dolphin-assisted-therapy (DAT) industry that exploits people desperate to help their loved ones. And they rot away in concrete closets. People want to see dolphins and whales close up and conveniently, without wanting to know how they got there. If they knew, would they stop going? Maybe some have, but the decreasing attendance at some places could be a function of raw economics as well.

Why didn't CSI's 1995 statement on captivity target the real problem, the people who pay to be entertained? We are working on it, but that is too big a problem to solve quickly; it dives too deeply into the bowels of human nature. We humans seem to have an innate urge to watch some spectacle of suffering, like gawking at car crashes. At the point where the suffering gets too close or noisy most of us turn away, or change the channel. Maybe in time to quell the feelings of disgust. Maybe not in time, resenting the guilt that wells up. We all have to experience our limits. And that includes bringing the family to enjoy a day watching dolphins jumping on cue, or thrill to the touch of a dolphin trained to be convenient, hour after hour, day after day. If people knew what the dolphins went through to end up in those concrete closets, compared to what their lives in the wild had been like, people would turn away in disgust rather than support such suffering and exploitation.

What if people recognized that the creatures performing for their pleasure were only shells and shadows of the real thing? At one of the "better" places years ago, after watching a crowd being manipulated in an interactive show that sanctified the place, not the performing orcas, I witnessed a young girl walk down, put her hand up to the glass wall opposite a young orca's face, and say simply, "I wish I could get you out of here". She gave me hope and made my day. Her parents were oblivious, on a schedule to the next show, but at least she got the message. Kids can see through the sham. Of course it is asking a lot, of the facilities, and us but if true education were truly part of a captive display most spectators would turn away in sadness. The "better" facilities are aware of this danger, of course, and use astonishingly sophisticated techniques to move the crowd along before they think too much. The cruder places just rely on the spectator in all of us.

Brazil

By 1985, after some horrific events, Brazil had prohibited the capture, killing or harassment of cetaceans in national waters. By 1999, particularly after the tireless and fearless work of Marcio Augelli, Sociedade Humanitária Tucuxi, there were no dolphins captive anywhere in Brazil. Brazil's NMFS-equivalent, the Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renovaveis (IBAMA), outlawed portable displays and dolphin therapy programs, but still there were no regulations for the care and maintenance of cetaceans in captivity. The pace quickened when Pedro Lavia, a Brazilian living in Portugal, decided to build "ZOOMARINE Centro Oceanográficos de Entretenimentos Educativos Ltda.", or "Zoomarine Rio", in Rio de Janeiro. Lavia began to develop property, and petitioned to import two captive born dolphins from his ZOOMARINE Mundo Aquatico Ltd., of Portugal. Other entrepreneurs got the fever, and there were rumors of several rich and powerful men pushing for the right to display dolphins in several places. By this time CSI had leveraged our decade of supporting Brazilian scientists and NGOs to develop an effective worldwide network. While CSI and others wanted Brazil to prohibit captive cetacean displays, that required a law that was politically impossible. In response to the new dolphinarium plans, and perhaps some unexpected interest from "us", IBAMA created PORTARIA # 98, 14 April 2000, which did everything but define maintenance standards, but in particular decreed that only captive-born dolphins could be displayed. About the time of Portaria 98 it became known that captivity supporters were pushing to have the US rules adopted by Brazil. Sounded good, but in the US all sides considered the US regulations inadequate and outdated, albeit for different reasons. A multi-year effort to revise them had involved representatives from all sides of the issue, but there were still some unsettled disputes. The US rules were not fit for Brazil, except to allow cheap and inhumane displays.

CSI took a chance and jumped many layers of bureaucracy with a letter directly to Brazil's Minister of the Environment, José Sarney Filho, advising him of the flawed US regulations, and petitioning that Brazil could do better. Minister Sarney agreed, and in May 2000 met in Brasilia with CSI's Bill Rossiter, the Animal Welfare Institute's Ben White, and Marco Ciampi, president of Associação Humanitária de Proteção e Bem-Estar Animal (ARCA Brasil), the largest animal welfare organization in Brazil. Minister Sarney had several other officials on hand to hear our plea, and with a view to meeting his definition of making Brazil's rules "the best", invited (or challenged) Rossiter and White to provide the Minister, IBAMA, and the scientific advisory committee, GTEMA, with a worldwide study of rules and regulations. A virtual library was assembled, sent, and studied, even as politicking to weaken the rules continued. But on 8 February 2002, "Normative Instruction # 3" became public! They are not as strong as we had hoped, but stronger than we had expected. Our effort had worked!

Will Zoomarine Rio resurface? There are many wealthy people in Brazil eager to exploit the magic of dolphins, but the new rules may demand too much of an investment to make profit assured, particularly with the required tank sizes. Profit drives the industry. CSI is driven to stop all new facilities and captures, and one way is simply to make them too expensive.

Mexico

So many good things are happening in Mexico! But the tragedies still should overwhelm any humane person. Over a year ago even the government had no idea of where and how dolphins were captured or maintained. But courageous advocates had been gathering information and proof to show the true state of the industry. CSI supported their preparation of the first-ever Mexican Captivity Report, and posted it to our web site in October 2000, in both English and Spanish. The report has been receiving a remarkable number of hits. An update is overdue, but the people making the changes happen cannot lose the momentum to make the update, which would be out of date immediately anyway. CSI wants to trumpet the names of these wonderful people, but they are too vulnerable. For their safety all we will say is that the lead NGO is Conservación de Mamíferos Marinos de Mexico A.C. (COMARINO), and that we are honored to have been working with and supporting these heroes all along the way.

In December 2000 eight bottlenose dolphins were captured secretly over several weeks from Magdalena Bay. By New Year's Day, 2001, they had been dumped, literally, into wire netted enclosures along a beach in La Paz (Whales Alive!, April 2001) and the Dolphin Learning Center, S.A. de C.V. (FINS) was born. The video of the inhumane transport, force feeding, and handling caused an international outrage and the beginning of a boycott, but powerful politics kept it out of Baja. Within sixty days one dolphin, Luna, died of stress. The Federal authorities were forced to intervene, and a rehabilitation and release project was begun. Then the governor of Baja muscled in and stopped the release effort, and a separate legal action tied up effective responses. Media coverage, particularly by the Toronto Star, kept the La Paz dolphins in the public view as they suffered through summer of 2001. They were used, illegally, for shows and therapy sessions, fed pieces of poor quality fish and given minimal medical attention, but they survived.

COMARINO brought these illegalities before the Judge of the Second District, who, on 5 March ordered the Mexican Federal Environmental Protection Office (PROFEPA) to seize the seven surviving La Paz dolphins and close FINS. FINS had continued to allow paying visitors for therapy programs after a 31 May 2001 PROFEPA order to cease operations, which had been because of violations committed in the capture, transport and care of the dolphins. Many of us had questions about the care and attention that they were and are receiving, and our concerns were valid. But the government had several reasons to ensure the dolphins' survival, even if by minimal standards. The many-layered scandal affected the national interest, and it was clear that the public would not accept more deaths. But the La Paz dolphins were suddenly very, very valuable, because in January the General Wildlife Law had been amended, again thanks to relentless efforts of COMARINO, to prohibit the capture of dolphins in Mexican waters! If enforced, Mexico is no longer a worldwide source for captive bottlenose dolphins. The La Paz dolphins were available resources in a closed market.

On 1 April a new regulation for the conservation of captive marine mammals was published (again with the advocacy of COMARINO), the "Norma Oficial Mexicana de Emergencia NOM-EM-136-ECOL-2002, Protección ambiental-Especificaciones para la conservación de mamíferos marinos en cautiverio" (in Spanish at http://www.gobernacion.gob.mx/dof/dof_01-04-2002.pdf, pages 23-51). It requires an inventory of captive marine mammals, which will help control the black market, and provides specifications for care and maintenance that simply did not exist before. You should wish that it required more, but it has filled an ugly void.

Just before, the Director of PROFEPA had shown a very shocking video of the mistreatment of the dolphins at FINS. Seen for the first time by many in La Paz, it caused enormous public outrage. The local newspaper, "El Sudcaliforniano", polled La Paz citizens by Internet and print, and within days 98 percent of the respondents demanded the dolphins be set free. Although Federal authorities had been petitioned immediately after the seizure to authorize another rehabilitation, and the authorities seemed to be in favor, a secret political plan was uncovered that would ship the dolphins to several display facilities in Mexico. That plan caused a flurry of activity, but as this is written we do not know whether the dolphins will be forced into other facilities or allowed a chance at rehabilitation and release. That release operation is fully ready and eager to go. That is where it is now. You can help! See CSI's web site, http://csiwhalesalive.org/csiupdat.html, for our current Action Alert on La Paz.

Argentina

Suppose a cetacean is alleged to have been captured illegally in another country, but while that is being sorted out, NMFS approves an import permit for captive display in the US? Would that be legal, or might it allow a future legal challenge if NMFS refuses anther import from another questionable capture? Go to the extreme a moment; some years ago agents for Marine World were caught supporting a dolphin killing drive in Japan, to select a few to bring back to the US. Do not give these people an inch.

Last fall, as the Argentine economy collapsed and people could not afford much, Mundo Marino, a captive display facility near Buenos Aires, may have seen a solution to their financial problems in Kshamenk, their lone male orca they ostensibly "rescued" from a stranding in 1992. It was rumored that Kshamenk was irritable and lethargic, somewhat like Belén, a female who had died in 2000. Take Argentine rumors seriously, as repressed truths accepted by everyone, but not publicly. Mundo Marino never acknowledged Belén's pregnancy by Kshamenk, and ignored rumors that she had died from complications following the birth of a calf that she may have allowed to die.

This is pure conjecture, but perhaps the Mundo Marino investors want to take their money and run, or perhaps make a profit while Kshamenk is alive, and find another "stranded" orca to replace him. In the US Kshamenk is worth a million dollars, multiplied over three times by Argentina's current financial crisis. In October Funtime Inc., also called Six Flags Worlds of Adventure, of Aurora, Ohio, applied for an import permit for Kshamenk, and a female captive-born orca from Antibes, France, named Shouka. Bear in mind that SeaWorld used to own that place, but would ship their orcas south every year rather than keep them in Ohio's winter. Six Flags initially said they had no interest in displaying orcas. But winter attendance is miserable, and orcas are big attractions. It looked so easy.

CSI has been working with and supporting advocates in Argentina since the application was made, again using our network of Latin American friends, doing what we do best, but quietly. From here on it is like a soap opera, but we haven't got the space to tell all.

Picture a sunny, summer day in Bahía Samborombón, an enormous, flat, shallow and nearly deserted bay south of Buenos Aires, ideal for trapping unwary cetaceans who follow fish in on a falling tide. On 17 November 1992 "fishermen" report an orca trapped alone in the mud. Mundo Marino responds, and after a day of struggle the orca is placed in the tank at Mundo Marino, but dies within minutes. Four more orcas are found just six kilometers south of the first, but when Mundo Marino arrives early the next day only one juvenile remains. Again the whale is "rescued", but he survives and is named Kshamenk. He shares the tank with the older female, Belén. Medical reason for his "rescue"? He is sunburned. Why did only the larger, heavier orcas escape? Why did Mundo Marino never make any effort to release any cetaceans in deeper water? Why are their accounts of the stranding so sketchy?

Belén had been captured in 1988 by Mundo Marino in a forced stranding, or "beaching", that was so blatant that Argentine Law 25O52 was passed forbidding further captures of orcas. But the man who drafted the law felt obliged to allow the temporary recovery of a naturally stranded orca that would not have survived otherwise. He did not think of that as a loophole. Did Mundo Marino? While two of their bottlenose dolphins had come from "accidental" net catches, all the rest came from convenient "beachings" over more than a decade. The other dolphinarium, Mar del Plata, did the same. It was so easy.

Six Flags stepped innocently into this mess; they obviously did not have a clue about the Kshamenk issue. Their application for an import permit unlocked a decade of rumors, cover-ups, and relationships that have since flooded the issue like a soap opera plot. CSI joined with the Humane Society of the US (HSUS), Earth Island Institute (EII), and the Whale and Dolphin Conservation Society (WDCS) to fund an attorney in Argentina to prepare a legal suit on behalf of Wild Earth Foundation (WEF) that, in a 230 page document, alleges that Mundo Marino had taken Kshamenk illegally, by aiding or abetting people who either forced the orcas over the mud flats to be trapped, or restrained at least Kshamenk from escaping at high tide. This had been rumored in Argentina all along, but, like many other issues, it was never a public matter. Documents will prove to NMFS that some testimony in Mundo Marino's accounts of the "rescue" came from people labeled "fishermen", but who actually worked for Mundo Marino. A 2002 account of the event is by an official who was with the Mundo Marino Foundation in 1992. To make a long story shorter, their documents are full of holes, and Six Flags is probably wondering how they can escape the debacle. If a CITES Export Permit for Kshamenk is signed in Argentina a Federal Judge will make a preliminary judgment on the facts within a few days, opening up the allegations to legal scrutiny and media interest. This case may be the first test of the "natural resources with national character" concept, questioning the right of the "holder", Mundo Marino, to export the orca, owned by the nation. The whole process begins if Mundo Marino requests an export permit, but that is months overdue. I wonder why?

The seriousness of the allegations rightly prompted NMFS to ask for more information and extend the public comment period. Unavoidable delays in Argentina finally required an unprecedented third extension, closing 11 April. NMFS will have received data on Mundo Marino's employees and their relationship to the stranding recoveries, the tide depths that may have allowed the orcas to escape, and much else that questions the whole legality of how Kshamenk was taken. But will that be enough to deny this import? We suspect that NMFS is hoping that the issue stops in Argentina.

But why would CSI and other organizations want to stop Kshamenk from being sent to Six Flags if Mundo Marino is threatening bankruptcy? Step clear of that smelly posturing to see the bigger picture. If the legal questions are not resolved, will his import set a dangerous precedent or violate any laws? If Kshamenk, the primary attraction, leaves Mundo Marino and the investors recover their money, what happens to all the other animals there? If the rumors that he was ill were true, would Kshamenk survive such long transport? Would the care he would receive be any better? After all, Six Flags has no experience with orcas, but Mundo Marino does. Would Kshamenk accommodate to a very different climate? Can we condone another orca breeding farm, particularly when Shouka could conceive a calf by artificial insemination without ever leaving France, a procedure proudly touted by some facilities? These are some of the reasons we want Kshamenk to stay in Mundo Marino, rather than be exported to the US. But if bankruptcy becomes a real threat there is a very good possibility that Kshamenk could be rehabilitated and released to join his family.

Italy

One success CSI had nothing to do with came from a decade of work by the Italy-based Animal and Nature Conservation Fund (ANCF, formerly Bellerive Foundation). ANCF reported in early April the success of their campaign for a strong Italian decree for the maintenance of dolphins in captivity, which was finally published in the Official Gazzette of 18 January 2002. In 1994 inadequate criteria had been submitted to the Environmental Ministry of the (then) Cites Commission by the dolphinariums themselves and, during the political struggle for more humane rules that followed, at least 15 dolphins have died in Italian facilities. The regulation prohibits all swim-with-the-dolphin programs and requires bigger tanks, qualified personnel, a limited number of exhibitions, a day of rest for the animals, and quality food. Congratulations ANCF!