Monthly Archives: August 2015

Georgia Aquarium accuses NMFS of “bobbing and weaving” while “cooking the books”

The tone of yesterday’s hearing on the question of whether the federal government erred in its decision to deny a permit to the Georgia Aquarium to import 18 wild-caught beluga whales was “educated”.   As counsel for both parties, the Georgia Aquarium and the Department of Justice on behalf of the National Marine Fisheries Service (NMFS), and intervenors Animal Welfare Institute, Whale and Dolphin Conservation and Cetacean Society International, made their cases in 45-minute arguments, Federal District Court Judge Amy Totenberg, after congratulating all participants on the quality of the briefs, demonstrated that she had identified what she considered lingering questions, as she honed aspects of the arguments that would be important in her determination.

The Georgia Aquarium fights to import wild beluga whales.

The Georgia Aquarium fights to import wild beluga whales.

The Georgia Aquarium opened its strongly-worded argument by claiming that NMFS’ decision, in denying the permit, was arbitrary and capricious and not in accordance with law by, in a “feast of failures,” having invented new standards in makings its determination, having manipulated data, which it suggested amounted to “cooking the books,” and having “changed its mind” without explanation about the issuance of the permit. The Georgia Aquarium added the claim that NMFS, in its decision, was amending the Marine Mammal Protection Act (MMPA) by “extraterritorial application” of another country’s laws.

In a nutshell, the Georgia Aquarium sounded as “whiny” as a child on a school playground, claiming that it wasn’t picked for the winning team.

Much of each Party’s time was spent responding to Judge Totenberg’s questions about data and how it was used by NMFS in its determination. The Georgia Aquarium argued that NMFS had erred by not considering the Potential Biological Removal (PBR) Level, which is defined as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. It wondered aloud that if NMFS did not use PBR as its “standard” in making its determination, then what standard it did use and welcomed being “thrown into a briar patch” discussion of standards. Judge Totenberg observed that this “if not this, what” approach was a Draconian framing of the question and recognized that the PBR does not have the status of the “sole litmus test” that the Georgia Aquarium seemed to be “edging toward.”  Judge Totenberg observed that the PBR is one of several tools used by the Agency and noted that, in contrast to the Georgia Aquarium’s assertion, NMFS had, in fact, considered PBR.

Beluga whales captured and held in tanks in Russia awaiting their "disposition."  Photo credit M. Lanovoy

Beluga whales captured and held in tanks in Russia awaiting their “disposition.” Photo credit M. Lanovoy

NMFS responded by recounting data that showed that the PBR had, in fact, been exceeded, but urged the Judge not to make her determination upon this one finding, because there was other evidence that supported its decision to deny the permit. NMFS had found, for instance, evidence of human-caused beluga mortalities due to subsistence hunting in the Sakhalin and Shantar Bays, bycatch during fishing operations, and the live capture process itself that were not properly taken into account by the Georgia Aquarium’s application. It also pointed to significant uncertainty in the data that constrained the ability to develop a meaningful trend over the twenty year time period that it evaluated. Further, NMFS stated that the PBR is not something that NMFS normally uses in reviewing permit applications but is, instead, a quantity that the Agency is directed to prepare for evaluation of United States stocks of marine mammals.

As to whether the Agency had changed its mind, Justice recounted that there were many different levels within the Agency involved in reviewing the permit applications and the significant comments that were provided by the public during the comment period, and that the Georgia Aquarium is in error in suggesting that there was a “mind” to have been “changed” until the final permit decision.

As to making its decision based upon other nation’s laws and whether this amounted to amending the MMPA, Justice answered easily that it was the act of “import” that was under consideration in light of standards that must be applied under U.S. law, but reiterated that the actions of other entities, in this case a Russian beluga-capturing operation, and whether those actions would place beluga populations at risk, were issues being asked and answered.

The technical nature of the data is beyond the scope of this writing because, frankly, I do not understand it all. But I will rest easily knowing that the decision will be made by a judge who will not fall for assertions of “book-cooking” and “bobbing and weaving,” but will make her decision on the basis of the record that she noted was argued well and long by both sides.

Or at least one.

Judge Totenberg could render her decision in as little as two months.

Rehabilitation and release for marine mammals – a stacked deck

Imagine that you’ve experienced a significant trauma, like a car accident.

A traumatic injury begins a journey of rehabilitation for marine mammals

A traumatic injury begins a journey of rehabilitation

You are taken to a hospital, where the hospital finds that you require emergency care and a prolonged rehabilitation with physical and occupational therapy.

After two and a half years, you can finally walk again, and you are able to resume your normal life.

But imagine that the hospital staff, instead of discharging you, claims that you must stay in the hospital indefinitely because the decision about your future was made at the two-year mark and that there is nothing mandating that your condition be re-evaluated.

Spoon-feeding in the long run teaches us nothing but the shape o the spoon.  - E. M. Forster

Spoon-feeding in the long run teaches us nothing but the shape of the spoon. – E. M. Forster

Imagine that during those two years of rehabilitation, the hospital staff, instead of teaching you how to feed yourself, insisted on spoon-feeding you your every meal.  Imagine that the food they fed you wasn’t anything you’d ever eaten, but was merely what the hospital insisted on providing.  And, to add insult to injury, imagine that you could have fed yourself, but that the decision to spoon-feed you was based on nothing to do with you as an individual, but was based purely on hospital policy and practice, a practice that was a function of cost, convenience to and, perhaps, an ulterior motive of the institution, rather than a decision based upon your well-being.

That is the life of many stranded marine mammals, especially cetaceans.

So, there are several questions:

  • Who makes the recommendations and determinations regarding the releasability of stranded marine mammals?
  • What are the criteria of releasability and are these criteria being followed?
  • When is this decision made?
  • Once made, can the decision be changed (or is the deck stacked against release)?

Who? For marine mammals who have the (mis)fortune of becoming stranded and rescued in the United States, it is up to NOAA to determine whether they can be released to the wild.  The criteria for “releasability” are not well-defined in regulation and, like many federal programs, are better-defined in guidance issued by the agency.  NOAA’s guidance on releasability provides more detail, where it states that it is not NOAA that actually performs the evaluation or makes the recommendation, but rather,

The attending veterinarian and their Assessment Team (i.e., veterinarians, lead animal care supervisor, and/or consulting biologist with knowledge of species behavior and life history) representing the Stranding Network Participant, Designee, or 109(h) Stranding Participant will assess the animal and make a written recommendation for release or non-release.

Part if not much of the team performing the evaluation and making the recommendation to NOAA is often occupied by SeaWorld staff.   NOAA reviews the written recommendation and uses it to make its determination.  Contrast that with the trainer message in the SeaWorld video below, where the trainer seems to go to great lengths to suggest to its paying audience that NOAA, without assistance from SeaWorld or others in the network, makes the recommendation to keep marine mammals at SeaWorld.

What?  The evaluation criteria in the guidance states that “[b]ehavioral clearance also should include confirmation that the cetacean is able to recognize, capture, and consume live prey when such tests are practical” and that “[b]asic behavioral conditioning of wild cetaceans for husbandry and medical procedures may be necessary during rehabilitation as long as every effort is made to limit reinforced contact with humans.”  In contrast with the guidance, the predominance of husbandry and maintaining human contact are evidenced in the SeaWorld video below, where the trainer states to the audience, “So, we teach [Fredi] lots of behaviors.  A lot of the behaviors we first started teaching her are called “husbandry” behaviors.”

When?  Further, releasability is a determination that is conducted no later than six months after a stranding, continued, theoretically, during the remainder of the first two years after the event, and effectively terminated after two years.  In your case, as with marine mammals, if the “hospital” has you at two years, they likely have you for life.  Especially if they never teach you how to feed yourself.

Meet Fredi, Ace, Ava, and Piper.  They stranded in separate events.  Fredi stranded in 2011 and Ace, Ava and Piper stranded in 2012.  They were all deemed unreleasable by NOAA on recommendation by, you guessed it.

This is a video of the event in which Ace, Ava and Piper and members of their pod stranded on a beach in Fort Pierce, Florida.

Ave, Ace and Piper, as Fredi before them, were turned over to SeaWorld.

See how they were doing in 2013.  And how SeaWorld wants to “invite you all back over the next days, weeks, months, and years, to come back to see how these guys are growing, and learned over time, because hopefully, one day you’ll see these four pilot whales do their own segment in the Blue Horizons show.”

I think I can hear you, thinking, along with many others who are becoming aware of the many secrets of the aquarium industry, that it is less than clear that SeaWorld, as part of its rehabilitation program, made any effort to teach Fredi, Ava, Ace and Piper to catch their own fish.  And doesn’t it suggest that SeaWorld did not follow NOAA guidance in its program?

It’s hard to know.  Obtaining documents through Freedom of Information Act (FOIA) (whining here) isn’t always successful, especially if your fact-finding is constrained by being able to afford the cost of the request.

A change is clearly needed that will end the deck-stacking in favor of “unreleasability.”  And that change will likely come only if we insist that the deck should not be stacked, it should be neutral, and cetaceans should be taught to hunt, with husbandry used only to administer procedures beneficial to the once-free, now captive marine mammals.

But if the deck should be stacked at all, shouldn’t it stacked in favor of freedom?  Just as with your car wreck, cetaceans no more than you should have to worry about becoming victims of a system that spoon-feeds, and then blames the one injured for it.

Shouldn't the deck be stacked in favor of release?

Shouldn’t the deck be stacked in favor of release? Image by Emmanuel Jose

What you can do:

Contact and call upon your legislators to update the regulations that implement the Marine Mammal Protection Act.  Some suggested updates:

  • Specify that if the institution who will be receiving the marine mammal is part of the display industry, it is not a member of the review and recommendation team (or a more straightforward but also more dramatic change – and one I like better – would be to remove all members of the display industry from being part of the review teams).
  • Specify the behaviors that must be taught, if practicable, including a requirement that natural feeding behaviors be taught during rehabilitation, with a directive to remove the animal if there is no effort to teach natural behaviors, like feeding and hunting.
  • Require that the two-year “rebuttable presumption” be removed in favor of a neutral evaluation of the animal at each independent time period.
  • Require that reports of the rehabilitation agencies be made publicly available on NOAA’s website (rather than enduring the – ugh – FOIA process).