by David Kirby
Given Dold’s six-figure degree, Naomi couldn’t help but gleefully note that when he was asked by the court reporter to spell cetacean, “he spelled it (very carefully) ‘c-e-a-t-a-c-e-a-n.’”
Jeff Andrews, SeaWorld’s expert witness, testified last. John Black opened by ripping into Andrews’s credibility. As Naomi described the ambush: “He went after Andrews’ expert report, which SeaWorld had not even submitted for the record (because this report contradicted the narrative that Kelly Flaherty Clark began and Chuck Tompkins and the others continued, that Dawn did not make a mistake that day, that she was following protocol, that nothing was out of the ordinary that day until Tilikum, completely out of the blue, killed her—Andrews had clearly written in his expert report that ‘Dawn made a mistake’). His expert report was so bad that his side did not submit it for the record, but OSHA DID!”
Andrews had “confidently stated” his disagreement with Dave Duffus that captive orcas can exhibit predatory behavior, Naomi noted. “He said they are fed and satiated and therefore there is no need to show predatory behavior.” When John Black pointed out that captive orcas kill seabirds, which even Chuck Tompkins described as “predatory” behavior, Andrews countered that it was more “fun” or play behavior. “But Black drove home that SeaWorld itself considered them predatory events,” Naomi observed.
According to Naomi, Andrews’s “biggest blooper” had been admitting that his expert report relied exclusively on what SeaWorld employees told him about Dawn’s death and Tilikum’s behavior that day. “None of the people he admitted speaking with had actually witnessed the attack—he never spoke with any eyewitnesses,” Naomi marveled. But Andrews nonetheless offered these interviews as “facts” on which his “expert opinion” on the attack was based. “This was probably the most powerful example of his bias and lack of credibility and I think the judge took note,” Naomi wrote.
When it was all over, Judge Welsch looked tired and ready to go home. He gave the two parties forty-five days to submit written briefs, once the hearing transcripts were completed. “I’ve been doing this for fifteen years, and this probably is one of the most unusual OSHA hearings I’ve ever had,” he told the courtroom before adjourning. “I’m going to spend a lot of time dealing with this issue. I think it’s a very complicated issue.”
Naomi walked out into the pleasant evening air (November in Orlando is sublime) and headed for the airport. She had no idea how the judge would rule. OSHA had poked a lot of holes in SeaWorld’s façade, but Carla Gunnin had scrambled hard to plug them, not always with the greatest assistance of her own witnesses.
Now, all there was left to do was go home and wait.
* * *
What did the future hold for SeaWorld and its killer whales? In early May of 2012 it was still anyone’s guess. Many observers predicted that Judge Welsch would, in effect, split his decision, reducing the “willful” violation to “serious” (SeaWorld had argued quite forcefully that it was continuously reviewing and updating safety protocols), but still upholding most or all of the proposed “feasible abatements.”
If that happened, thorny issues would linger. SeaWorld would almost surely appeal the ruling, and the case would be transferred to Washington, DC, where the Occupational Safety and Health Review Commission would hear the next stage of litigation. In the event that Welsch ruled completely against OSHA, Secretary of Labor Solis had the option of appealing the government’s case as well. It could mean an ultimate showdown between the Obama administration and Stephen Schwarzman of the Blackstone Group, who had once likened the president to Adolf Hitler. Complicating political matters, Obama was now running for reelection and his probable opponent, Republican Mitt Romney, was the beneficiary of a big-donor fund-raising dinner at Schwarzman’s Park Avenue home in January.2 Most people familiar with the case doubted that a Romney administration labor secretary would pursue any appeals.
Assuming that Welsch maintained most or all of the abatements, it remained unclear if SeaWorld’s adoption of such technologies as false bottoms in pools and spare air would put it in compliance with the feds. But as long as SeaWorld officials could keep the appeals process alive, they would not have to comply with any of the OSHA abatements.
Meanwhile, the Tilikum scandal, and the removal of orca trainers from the water, had done nothing to hurt SeaWorld’s bottom line. The company claimed record earnings in 2011 and also announced its largest expansion in the park’s history, none of which had anything to do with Shamu.3 That might have signaled a desire by SeaWorld to move beyond orca shows as a central driver of corporate revenue. On the other hand, SeaWorld’s killer whale breeding program appeared to be progressing at full tilt, and the company was reportedly scouting sites for overseas SeaWorld venues, particularly in China.
No matter what happened, killer whales were very much in the news. The iconic black-and-white animals were everywhere on TV, it seemed. The public had been enraptured recently by footage of wild orcas hunting sharks along the coast of New Zealand. Another killer whale had just been freed from entanglement in a crab-trap line, also in New Zealand. It made worldwide headlines and was covered on ABC’s Good Morning America.
Killer whales had been sighted close to shore in Northern California, off Monterey, and in Southern California, including a large pod off Dana Point, not fifty miles from SeaWorld San Diego. Boatloads of people were sailing out to view the orcas, something that can be disruptive if the federal two-hundred-yard viewing limit is violated (another reason why sea pens are attractive alternatives). Still, the irony of spotting wild whales so close to captive ones was not lost on some people. “Why go to SeaWorld when you can see the real thing right there in the ocean?” one commenter said online.
Why indeed? Naomi thought.
Killer whales kept making news. On February 9, 2012, a Canadian appeals court issued a major ruling that the government of Canada was legally bound to protect the habitats of Northern and Southern Resident communities, including salmon stocks and marine environment quality.4 The ruling might reduce fishing and vessel traffic in the Strait of Georgia and Juan de Fuca Strait in the south and Queen Charlotte Strait and Naomi’s beloved Johnstone Strait in the north. It was not clear what impact it would have on all the Norwegian salmon farms in British Columbia, but their removal was important if wild salmon populations were to rebound, Naomi believed.
February did not bring equally good news to killer whales in captivity. On the eighth, a federal judge in San Diego granted SeaWorld’s motion to dismiss PETA’s lawsuit, with prejudice, to free five wild-caught whales—Katina, Kasatka, Ulises, Corky, and Tilikum.5 The judge seemed sympathetic to the cause, calling the goal of protecting orcas “laudable.” But he said the antislavery Thirteenth Amendment “affords no relief.” That same day, the prime minister of Iceland’s office denied any knowledge of plans to return Tilikum to his native waters.6 It looked as if the mighty whale would live out his days in a tank at SeaWorld after all.
Meanwhile, the “SeaWorld Four,” Jeff Ventre and the other former trainers, had just launched Voice of the Orcas,7 a website dedicated to the whales, and to their own “change of heart” about captivity. Jeff and others were also arranging the next reunion—Superpod II—on San Juan Island for July 2012. Everyone was planning on going. Even Naomi hoped to attend. It was time, finally, to meet these ex-trainers face-to-face. She had come to respect Jeff, John Jett, Carol Ray, and Sam Berg, as well as John Kielty and Colleen Gorman of TOP, and she looked forward to seeing old friends such as Howie Garrett, Ken Balcomb, and Lori Marino. It would also be wonderful to see killer whales in their magnificent natural environment once again. Almost unbelievably, Naomi had never encountered a Southern Resident whale in the wild before.
There was nothing like witnessing a traveling family of killer whales cruising together up the strait, foraging, breaching, splashing, and playing, their cries of communication audible from your boat. The close-up sight of a mature male rising above the water’s surface, h
is towering dorsal fin so lofty one sometimes had to look up to see its tip, was one of the most heart-pounding encounters the animal world had to offer.
Those experiences were not included in the price of admission at any marine mammal “entertainment” park. As Sam Berg so pithily declared one evening at the Superpod gathering, “SeaWorld whales are not real whales; they’re facsimiles of whales.”
Notes
Introduction
1. Some scientists disagree and note that male sperm whales are larger and more powerful than killer whales.
2. The Northern Resident killer whale population in 2011 was estimated at about 265 animals, a significant increase since 2004, when the total was about 205: Ellis, Towers, and Ford, Technical Report 2942, Department of Fisheries and Oceans (Canada). The Southern Resident population in 2011 was estimated at “about 88 whales, a decline from its estimated historical level of about 200 during the mid- to late 1800s. Beginning in about 1967, the live-capture fishery for oceanarium display removed an estimated 47 whales and caused an immediate decline in Southern Resident numbers. The population fell an estimated 30% to about 67 whales by 1971”: www.nmfs.noaa.gov/pr/species/mammals/cetaceans/killerwhale.htm#note11.
3. According to the NMFS website: “One estimate put the worldwide population of killer whales at over 100,000 animals [R. R. Reeves and S. Leatherwood, “Dolphins, porpoises, and whales: 1994–1998 action plan for the conservation of cetaceans” (Gland, Switzerland: IUCN, 1994)]. However, the most recent estimate revised this figure to a minimum of about 50,000 animals [K. A. Forney and P. Wade, “Worldwide distribution and abundance of killer whales,” 2006, in Whales, Whaling and Ocean Ecosystems (Berkeley: University of California Press, in press)]: www.nmfs.noaa.gov/pr/species/mammals/cetaceans/killerwhale.htm#note9.
4. Captive killer whale census data come from Orca Homepage, www.orcahome.de.
Prologue
1. Most accounts of this incident said that Keltie Byrne fell in the pool entirely, and that all three whales took part in her drowning. But eyewitnesses told a different story, as written in the prologue. The account was based on an interview by the author with witness Nadine Kallen, and a corroborating interview with Kallen’s friend Corrine, conducted by filmmaker Gabriela Cowperthwaite in Seattle, Washington, in 2011.
2. Luke Rendell and Hal Whitehead, “Culture in whales and dolphins,” Behavioral and Brain Sciences 24 (2001): 309–82.
2. Trainer
1. Erich Hoyt, Orca: The Whale Called Killer (Camden House, 1990 ed.).
2. John K. B. Ford, Graeme M. Ellis, and Kenneth C. Balcomb III, Killer Whales: The Natural History and Genealogy of Orcinus orca in British Columbia and Washington State (University of Washington Press, 2000).
3. “Whales caught,” United Press International, August 10, 1970.
4. “Flying fat whale eyed as sire,” Associated Press, October 19, 1976.
5. Jason Garcia, “SeaWorld Orlando killer whale death is third in four months, 24th in 25 years,” Orlando Sentinel, October 6, 2010, http://articles.orlandosentinel.com/2010-10-06/business/os-seaworld-killer-whale-dies-20101005_1_dawn-brancheau-seaworld-orlando-killer-whale-seaworld-marine.
6. “Whale dies,” Associated Press, April 29, 1986.
7. “Killer Whale (Orcinus orca),” NOAA Fisheries, Office of Protected Resources, www.nmfs.noaa.gov/pr/species/mammals/cetaceans/killerwhale.htm.
8. “SeaWorld moves Baby Shamu whale,” Fort Lauderdale Sun Sentinel and wire services, February 14, 1990.
9. Patricia V. Barrios, “New whale makes splashdown in S.A.,” San Antonio Express-News, May 31, 1991.
10. “Whales caught,” Saskatoon Star Phoenix (SK, Canada), August 20, 1975.
11. Tim Zimmermann, “Do Orcas at Marine Parks Injure One Another?” September 14, 2010, http://timzimmermann.com/2010/09/14/do-orcas-at-marine-parks-injure-one-another.
12. Christopher Anderson, “Kalina celebrates SeaWorld birth to ‘grandbaby Shamu’ killer whale,” San Antonio Express-News, February 3, 1993.
13. Ford, Ellis, and Balcomb, Killer Whales.
14. Ines Davis Parrish, “SeaWorld’s latest birth provides whale of a time,” Orlando Sentinel, June 19, 1995.
15. “Performing whale gives birth,” Associated Press, November 5, 1988.
16. Sandra Mathers, “Orlando native Baby Shamu moves to SeaWorld in Ohio,” Orlando Sentinel, April 22, 1991.
17. Tom Bower, “Whale’s death stirs debate,” San Antonio Express-News, May 7, 1999.
18. “Killer Whale (Orcinus orca),” NOAA Fisheries.
19. “A new Shamu, SeaWorld’s Namu bears a bouncing baby killer whale,” Associated Press, November 27, 1988.
20. “SeaWorld loses a Shamu,” Greensboro (NC) News-Record, August 7, 1991.
21. “Female killer whale flown in for breeding,” Associated Press, November 19, 1987.
22. “Baby Namu born,” Miami Herald, July 13, 1989.
23. “Killer whale born at Orlando SeaWorld,” Business Wire, January 1, 1994.
3. Capture
1. The account of Tilikum’s life as a young calf in Iceland, his capture, his transfer to Canada, and his early years at SeaLand of the Pacific was put together from various published sources. The descriptions were based on informed speculation, consistent with other accounts of whale calf captures in Iceland and the Pacific Northwest.
2. Eric L. Walters, “Considerations for Keeping Marine Mammals in Captivity,” document submitted to the Canadian Federation of Humane Societies, April 20, 1990.
7. Residents vs. Transients
1. John K. B. Ford and Graeme M. Ellis, “Selective foraging by fish-eating killer whales (Orcinus orca) in British Columbia,” Marine Ecology Progress Series 316 (July 3, 2006): 185–99.
2. Pam J. Stacey and Robin W. Baird, “Birth of a ‘Resident’ killer whale off Victoria, British Columbia, Canada,” Marine Mammal Science 13 (1998): 504–8.
3. J. K. B. Ford, G. M. Ellis, and K. C. Balcomb, Killer Whales: The Natural History and Genealogy of Orcinus orca in British Columbia and Washington State (University of Washington Press, 2000).
8. OrcaLab
1. Ted Griffin, Namu—Quest for the Killer Whale (Gryphon West Publishers, 1982).
2. Information on early captures from various sources, including PBS’s Frontline and Rex Weyler, Song of the Whale (Anchor Press/Doubleday, 1986), and Erich Hoyt, The Performing Orca—Why the Show Must Stop (Bath, England: Whale and Dolphin Conservation Society, 1992).
3. Weyler, Song of the Whale.
4. M. A. Bigg, I. B. Macaskie, and G. Ellis, “Abundance and movements of killer whales off eastern and southern Vancouver Island, with comments on management” (Ste. Anne de Bellevue, Quebec: Arctic Biological Station, 1976).
5. M. A. Bigg, P. F. Olesiuk, G. M. Ellis, J. K. B. Ford, and K. C. Balcomb, “Social organization and genealogy of resident killer whales (Orcinus orca) in the coastal waters of British Columbia and Washington State,” special issue, Report of the International Whaling Commission 12 (1990): 383–405; P. Olesiuk, M. A. Bigg, and G. M. Ellis, “Life history and population dynamics of resident killer whales (Orcinus orca) in the coastal waters of British Columbia and Washington State,” special issue, Report of the International Whaling Commission 12 (1990): 209–43.
6. Alexandra Morton, Listening to Whales—What the Orcas Have Taught Us (Ballantine Books, 2002).
9. Happy Talk
1. The booklet of approved SeaWorld phrases was reproduced on the website of PBS’s Frontline, “A Whale of a Business,” www.pbs.org/wgbh/pages/frontline/shows/whales/seaworld/buzz.html.
2. A photocopy of “Difficult and Unusual Questions and Answers” was provided to HSUS by a former SeaWorld employee in 1991.
3. “Ask Shamu,” SeaWorld Parks & Entertainment website, www.seaworld.org/ask-shamu/faq.htm.
11. Breakfast at SeaWorld
1. Bruce Hecker, “Ask the Experts: Environment—How do whales and dolphins sleep without drowning?,” Scientific Amer
ican, February 2, 1998.
2. “A Whale of a Business: Danger to Trainers,” Frontline, www.pbs.org/wgbh/pages/frontline/shows/whales/debate/trainers.html.
3. Cindy Schreuder, “Report blames infection for killer whale’s death,” Orlando Sentinel, November 21, 1990.
12. Whale for Sale
1. Cindy Schreuder, “Yule baby may be a new Shamu,” Orlando Sentinel, December 28, 1991.
2. “Verdict of Coroner’s Inquest in the Death of Keltie Lee Byrne,” Coroner’s Court of British Columbia, Colwood, BC, June 5, 1991.
3. Eric L. Walters, personal letter to Canadian Federation of Humane Societies.
4. Eric L. Walters, memo to Norm Ellison, Coroner’s Office, Victoria, BC, April 1, 1991.
5. Cindy Schreuder, “Orlando SeaWorld may import 2 whales,” Orlando Sentinel, November 8, 1991.
6. “Killer whale’s death probed,” Associated Press, May 16, 1991.
7. “Experts try to establish death cause/SeaWorld whale seemed to be OK,” Associated Press, May 16, 1991.
8. “SeaWorld loses a Shamu,” Associated Press, August 7, 1991.
9. Cindy Schreuder, “Killer whale dies at Texas’ SeaWorld,” Orlando Sentinel, May 16, 1991.
10. “A Whale of a Business—Inside SeaWorld: The Tilikum Transaction,” Frontline, www.pbs.org/wgbh/pages/frontline/shows/whales/seaworld/tilikum/.
11. Letter from Ann Terbush, NMFS Office of Protected Resources, to Brad Andrews, vice president for zoological operations, SeaWorld, December 17, 1991.
12. Letter to Brad Andrews, vice president for zoological operations, SeaWorld, from Nancy Foster, director, Office of Protected Resources, US Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, Silver Spring, MD, January 8, 1992.
13. Cindy Schreuder, “SeaWorld gets OK to import killer whale,” Orlando Sentinel, January 9, 1992.
14. Letter to Andrews from Foster.
15. Letter from SeaWorld vice president for zoological operations Brad Andrews to Minister of Fisheries Thorsteinn Palsson, Reykjavík, Iceland, April 27, 1992.
