SeaWorld Loses (Again) in Fight Against OSHA

As weeks go, this one was a mixed bag for SeaWorld. Just three days after a California Assembly committee deferred voting on a bill to ban orca shows, pending further study, a Federal Court far across the country rejected SeaWorld’s appeal of the government’s mandate for increased safety measures following the 2010 death of Orlando trainer Dawn Brancheau.

SeaWorld’s argument, that safety protocols were sufficient to protect workers and that the government was being arbitrary and capricious by imposing new safety measures, were “unpersuasive,” wrote Judge Judith Rogers of the US Court of Appeals for the District of Columbia Circuit. The three-member panel rejected SeaWorld’s appeal 2-to-1.

At issue was whether the Occupational Safety and Health Administration (OSHA) acted properly by banning “waterwork,” when trainers ride on the animals, and requiring physical barriers and minimal distances between orcas and trainers, even during “drywork,” when trainers remain onstage.

It was the fifth time that SeaWorld fought back against OSHA, and lost.

On February 24, 2010, when the orca Tilikum dragged Brancheau under water and brutally killed her, OSHA inspectors arrived on the scene to begin their investigation. Over the next six months, SeaWorld tried to ward off any safety violations, but was handed a major defeat that August when OSHA issued a “willful” citation and $75,000 fine against the company. The feds also imposed a ban on waterwork and mandated barriers between orcas and trainers during shows.

In the fall of 2011, SeaWorld challenged OSHA before a Labor Department administrative law judge in a courtroom outside Orlando. But the following May, the judge sided with the government, upheld the mandated safety measures and chastised SeaWorld for exposing orca trainers to known risks of injury. He did, however, reduce the citation to “serious” and lowered the fine to $7,000.

SeaWorld’s third defeat followed soon after: The company appealed the ruling to the Labor Department’s Occupational Safety and Health Commission, but the commission refused to hear the case.

Next, SeaWorld filed an appeal at the DC Appeals Court, which sent the matter into arbitration. But OSHA refused to back down on the safety measures and the Court scheduled oral arguments for November 12, in Washington, DC.

At the hearing, SeaWorld’s attorney, Eugene Scalia, son of Supreme Court Justice Antonin Scalia, argued that the government was, essentially, picking on SeaWorld and overlooking other companies whose employees are put at risk, such as the NFL and NASCAR.

The lone dissenter, Judge Brett Cavanaugh, a Republican appointee, agreed with Scalia. He wrote that orca trainers, football players, race car drivers and others “want to take part… despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough– to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk– is among the greatest forms of personal achievement.”

Cavanaugh said the government had “stormed headlong in to a new regulatory arena” and asked, “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves?”

But Judge Rogers and Chief Judge Merrick Garland were unconvinced.

“Our colleague’s main point appears to be that the Secretary and the Commission were arbitrary and capricious by failing to reasonably distinguish SeaWorld’s killer whale shows from the NFL and NASCAR,” Rogers wrote. “It’s all or nothing, the dissent suggests.” And, she added, “the unusual nature of the hazard to its employees performing in close physical contact with killer whales” does not exonerate SeaWorld from its obligation protect employees.

SeaWorld, whose only legal option now is the US Supreme Court, said in a statement that “We are obviously disappointed with today’s decision,” but added, “the decision simply requires that we continue with increased safety measures during our shows.” The company is “still reviewing the opinion and no decision has been made on whether we will appeal,” it said.

Either way. today’s defeat was a far cry from earlier this week, when newspapers heralded a major “victory” for the company after the California Assembly committee postponed its vote on the Orca Welfare and Safety Act, which would make it illegal to use killer whales “for performance or entertainment purposes.”

For now, the Shamu shows will go on. But if trainers come in close proximity to the whales, SeaWorld will find itself in legal hot water all over again.

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If CA Passes Orca Ban, What Happens to the “San Diego 10?”

California’s Orca Welfare and Safety Act, introduced last Friday by state Assemblymember Richard Bloom, D–Santa Monica, has sent shock waves throughout the media and the captive-marine-mammal industry. The bill would make it illegal to “hold in captivity, or use, a wild-caught or captive-bred orca for performance or entertainment purposes.” It also would ban artificial insemination of captive killer whales and block the import of orcas or orca semen.

Assuming the bill became law, and if the courts upheld that law—which leading animal-law experts say could happen—what would the future look like for the 10 orcas currently kept in tanks at SeaWorld San Diego?

Many people assume the bill would “free” all of them into the ocean. But seven of the 10 were born in captivity and could not be expected to survive in the open sea. For them the best alternative, as provided under the legislation, would be permanent retirement in a netted-off cove or bay, a sea-pen sanctuary the public could visit, minus the cute tricks.

As for the three wild-caught orcas, it could be that only one, Corky, is a viable candidate for release—and even then, only after an intensive period of rehabilitation, in which she would need to relearn how to catch fish.

Below, I look at the prospects for the #SeaWorld10.

Wild-Caught Orcas: Candidates for Release Into Open Ocean

1. Corky

Age: About 47

Captured: Dec. 11, 1969, in Pender Harbour, British Columbia

Corky, one of the oldest living captive orcas, is one of the most promising candidates for full release to the open ocean because because conservationists know her pod still spends part of the year in Johnstone Strait, off of Vancouver Island. Corky might still remember her family; the “Free Corky” page at Whale and Dolphin Conservation reads, “She visibly shook and vocalized poignantly when a tape recording of her family’s calls were played to her in 1993.”

2. Ulises

Age: About 36

Captured: Nov. 10, 1980, in Reyðarfjörður, Iceland

Ulises is also a candidate for full return to the ocean. But scientists would first have to locate and confirm the identity of his family, which would be difficult, though not impossible. Researchers can determine whale DNA through tissue samples or, preferably, by examining orca scat detected by specially trained dogs riding in boats. Ulises, who spent years at parks in the United Kingdom and Spain before coming to San Diego, showed little interest in breeding female orcas and was thought to perhaps be unable to sire a calf. But in 2012, a female was born in France via artificial insemination using his semen.

3. Kasatka

Age: About 36

Captured: 1978 in Iceland

Kasatka is the least-viable candidate for release into the open ocean: She has three offspring living with her—Nakai, Kalia, and Makani—and they are not candidates. Orca conservationists would therefore recommend she not be released, to keep her with her offspring. Not only are they all captive born, but only one (Nakai) is of 100 percent Icelandic blood, and whale conservationists consider it unethical to introduce foreign DNA into a wild pod. There are several populations of killer whales in the wild and no evidence of inter-breeding for thousands of years.

Captive-Bred Orcas—Candidates for Release Only Into Sea Pens (Kasatka’s Offspring)

4. Nakai

A male born on Sept. 1, 2001, in San Diego, Nakai, sired by three-time killer Tilikum, was the first successful orca birth using artificial insemination. Nakai lost a large chunk of his chin in 2012. Officials at SeaWorld said he injured himself “in the pool area,” but outside experts suspected he might have been attacked. Nakai is 100 percent Icelandic.

5. Kalia

A female born on Dec. 21, 2004, in San Diego, Kalia is 87.5 percent Icelandic and 12.5 percent Southern Resident.

6. Makani

A male born on Feb. 14, 2013, in San Diego, Makani was sired via artificial insemination by Kshamenk, who lives alone in Argentina. Makani is 50 percent Icelandic and 50 percent Argentine.

Captive-Born Orcas—Candidates for Release Only Into Sea Pens

7. Orkid

Orkid, a female, was born on Sept. 23, 1988, during a live Shamu show, with thousands of spectators looking on. The following year, also during a live show, Orkid watched her mother, Kandu, bleed to death following an altercation with Corky. Orkid is 50 percent Icelandic and 50 percent Northern Resident.

8. Ikaika

Sired by Tilikum, Ikaika is a male born on Aug. 25, 2002, at SeaWorld Orlando. At four years old, he was sent to MarineLand in Niagara Falls, Ontario, on a breeding loan in exchange for some beluga whales. SeaWorld successfully sued the Canadian park in 2012 to get him back, citing stressful and unhealthy conditions at MarineLand. “Ike” is 100 percent Icelandic.

9. Keet

A male born on Feb. 2, 1993, at SeaWorld San Antonio, Keet is one of the most heavily transported orcas in captive history. He was separated from his mother at 18 months; at five years, he was moved to San Diego, where he spent five months before being flown to (the now defunct) SeaWorld Ohio. After one season there, he was returned to San Diego. Keet is 75 percent Icelandic and 25 percent Southern Resident.

10. Shouka

A female born on Feb. 25, 1993, at Marineland in Antibes, France, Shouka spent years alone in a small tank at Six Flags Discovery Kingdom in Vallejo, Calif. Following public outcry, she was sold to SeaWorld San Diego in 2012. Shouka is 100 percent Icelandic.

This article first appeared at www.takepart.com

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Calif. Lawmaker to Propose Ban on Orcas in Captivity

In a surprising move that is sure to send shock waves across the entire captive whale and dolphin industry, a California lawmaker will propose legislation to outlaw Shamu shows at SeaWorld San Diego.

State Assemblymember Richard Bloom, D–Santa Monica, will introduce Friday the Orca Welfare and Safety Act, which would make it illegal to “hold in captivity, or use, a wild-caught or captive-bred orca for performance or entertainment purposes.” The bill would also ban artificial insemination of captive killer whales in California and block the import of orcas or orca semen from other states.

Violators would face a fine up to $100,000 and/or six months in a county jail.

“There is no justification for the continued captive display of orcas for entertainment purposes,” Bloom declared in a written statement prior to a press conference to be held at the Santa Monica Pier. “These beautiful creatures are much too large and far too intelligent to be confined in small, concrete pens for their entire lives. It is time to end the practice of keeping orcas captive for human amusement.”

According to Bloom, the law would be “the most comprehensive protection law for captive orcas in the United States in over 40 years.”

Under the terms of the bill, all 10 orcas held in tanks at SeaWorld San Diego, the only California facility that has whales, “shall be rehabilitated and returned to the wild where possible.” If that is not possible, then the whales must be “transferred and held in a sea pen that is open to the public and not used for performance or entertainment purposes.”

Exempt from the legislation are any orcas held for rehabilitation after a rescue or stranding, or for research purposes. But even these animals would have to be returned to the ocean or sent to a sea pen.

It is not the first time state lawmakers have tried to outlaw the captivity of killer whales, the world’s largest dolphin. South Carolina passed a bill in 1992 against captivity for dolphins and porpoises following efforts by the South Carolina Humane Society to stop a proposed dolphin park in Myrtle Beach. Just last month, New York state Sen. Greg Ball, R-Carmel, introduced a bill to ban orca captivity in that state.

Of course, there are no captive orcas in South Carolina or New York, making the California bill far more than a symbolic gesture.

At least five countries—India, Croatia, Hungary, Chile, and Costa Rica—have also outlawed all cetacean captivity, while Switzerland has banned captivity for dolphins.

Dr. Naomi Rose, marine mammal scientist at the Animal Welfare Institute, said the bill was inspired by the orcas-in-captivity documentary Blackfish.

“The Blackfish effect has never been in greater evidence—everything has led to this, the first serious legislative proposal to prohibit the captive display of this highly intelligent and social species,” Rose wrote in an email. “SeaWorld should join with this effort rather than continue to fight it. They can be on the right side of history.”

Assemblymember Bloom reached out to Gabriela Cowperthwaite, the director of Blackfish, for help with the bill, who in turn consulted with Rose. 

“We did not initiate this proposal,” Rose wrote. “But once they reached out to us, we dove in wholeheartedly and assisted in every way we could—helping with the bill language, information, and fact-gathering, and getting support from various sectors of the public, including the scientific community.”

Rose also gave credit to former SeaWorld trainers featured in the documentary for supporting the legislation. Rose, Cowperthwaite, and former SeaWorld trainers Carol Ray and John Hargrove were scheduled to appear with Bloom at the Friday press conference.

Should the bill become law, SeaWorld might want to look at other highly successful aquariums that do not keep cetaceans in swimming pools. The Monterey Aquarium in northern California, for example, is routinely packed with visitors, without a single whale or dolphin in sight.

In South Carolina, where orcas will likely never entertain people, staffers at the South Carolina Aquarium in Charleston routinely direct visitors to local waterways if they want to see dolphins.

The Charleston Post and Courier reported in 2010 that when tourists ask to see the dolphins at the aquarium, the facility’s CEO, Kevin Mills, “smiles and answers, ‘Just walk out on our observation deck and you’re bound to see them, swimming freely in the harbor.’”

This first appeared at TakePart.com

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Marine Science Today Interview: Part 2

This is part two of MST contributing writer Michael Bear’s interview with bestselling author David Kirby about the captive orca industry, and Kirby’s book, ‘Death at SeaWorld’. Read part one here.

David Kirby's Death at SeaWorldQ: As you recounted in your book, on February 24, 2010, the killer whale named Tilikum killed one of SeaWorld’s most experienced trainers, Dawn Brancheau. Witness accounts differ as to exactly what happened first. Some say the version which says he grabbed her by her long ponytail was an attempt by SeaWorld to lay blame on her for the fatal event. Other witness accounts say that he pulled her in by her left arm. Was it ever determined which version was correct?

A: This remains a contentious point. SeaWorld first let the Orange County Sheriff’s Office declare that Dawn Brancheau fell into the pool. When this was debunked by eyewitnesses, the company trotted out the so-called “ponytail defense,” claiming that Brancheau’s long hair drifted into Tilikum’s mouth, and he found it a novel toy. This scenario was established by one of the trainers on scene at the time, though he later said he did not see the exact moment when Tilikum grabbed Brancheau. Other witnesses, including a security guard, said Tilikum grabbed Brancheau by her left arm and took her down that way. Both witnesses testified in court to their own recollections. The judge wrote that the ponytail theory, “was not established as a fact at the hearing, and it is in dispute”. We will probably never know, unless, perhaps, the underwater video of the attack is released to the public, which is unlikely.

Q: In your book (p.305), you refer to something that SeaWorld made mandatory reading for all new trainers, called the ‘Tilikum Safety Protocol.’ Part of that procedure included giving them what was casually referred to as the ‘Tilly talk.’ The talk was short and simple: If you get in the water with Tilikum, you will likely not survive. It seems pretty clear from this that SeaWorld was not only aware of Tilikum’s violent past, but that it had devised special procedures for dealing with him that they did not apply to other whales. Do you consider this prima fascia evidence that SeaWorld knew Tilikum was a danger to trainers, since he had killed two people before he killed Dawn Brancheau?

A: Of course they knew. How could they not? Before he was moved to Orlando, Tilikum lived at a former park in British Columbia called SeaLand, which wanted to get rid of all three of its killer whales after trainer Keltie Byrne was killed there in 1991. SeaWorld knew full well what the reason was, but they desperately needed a new breeding male – and fresh DNA. Management knew Tilikum was truly a killer, but they did not let the rank and file know this for many years. And when they allowed trainers like Brancheau to be up close with him in shallow water, they committed an act of “willful” negligence, according to OSHA. The judge in the case reduced the violation to “serious,” but that is still a significant abuse of worker protection laws.

Read more: http://marinesciencetoday.com/2014/01/10/david-kirby-on-captive-orcas-and-his-book-death-at-seaworld-part-2/#ixzz2q0wXkZIP

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Interviewer’s Note: I would like to thank Dr. Naomi Rose, Dr. Lori Marino and Dr. Jeff Ventre for their assistance.
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If you missed part one, here it is.

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Forbes Blogger Resigns Over SeaWorld Dispute

Last week, journalist James McWilliams posted a brief, stinging, eloquent blog at Forbes.com about how the low-budget film “Blackfish” is taking on a multi-billion dollar company, and may be winning. The piece won him few friends among editors at the website, who told him to alter it to include favorable information on SeaWorld. He refused, quitting his freelance gig and earning high marks from whale and dolphin lovers everywhere. Sadly today, too many reporters just do as they’re told, like stenographers. Not this one. As McWilliams told me in a recent interview: “Forbes.com went right, and I went left.”

Q) What inspired you to write this piece?

I write almost daily about animal-related issues, either on my own blog or for various publications, so I’m constantly seeking relevant topics to cover. In this case, my son, who is eleven, kept pushing me to watch the documentary “Blackfish.” We viewed it together and, indeed, that kid was onto something. It was a powerful film. So I decided to post a brief piece at Forbes.com.

Q) How did you research the blog?

My research involved exploring the question at the core of the film: do the conditions of captivity frustrate orcas to the point where they harm their handlers? It strikes me as a fascinating hypothesis. An overwhelming body of evidence, much of it presented in the film, indicated that the answer was “yes.” This point seemed worth highlighting for my Forbes readers. But, do note, the post did not require tremendous investigative work. After all, the point of it was simply to show how a low-budget documentary with a compelling thesis could put a well-documented message in the public sphere and, in so doing, deliver a social media lashing to a Goliath of an institution.

Q) Clearly, your immediate editor approved the piece. What happened?

Clearly? At Forbes.com contributors post articles on their own.Whatever editing happens at Forbes.com does so after the piece goes live, again, at least in my experience. I’m speculating a bit here, (but) what happens is editors scan headlines of posted pieces to see if there are any red flags and, if a hot piece begins to generate a lot of traffic, or motivate complaints, they hone in and take a more careful look at it. A conversation with my immediate editor after my resignation ended on a positive note: we saw each other’s perspective but cordially agreed to disagree.

Q) What changes did Forbes.com want you to make?

I was asked to make changes reflecting conventional journalistic practice. This, in addition to the fact that the requests were not applied consistently, does not necessarily make those changes right. Why, for example, should I lend a SeaWorld representative space to spout some boilerplate propaganda about orcas being happy in captivity? I’m sorry, but that’s not the kind of writing I want to do. I don’t write as an “objective” journalist, at least not in the sense of seriously entertaining the possibility that it might be fine for orcas to be held in captivity. I come at my work with a clearly defined, pro-animal perspective. In this case, the problem came down to (this): what’s reasonable for conventional journalism is a status quo that turns too many journalists into bullhorns for the power elite. My experience at Forbes.com led me to realize that much of the conventional media demands that writers assume this impotent role. I find that sad. Continue reading

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New Interview in Marine Science Today

Many thanks to Mike Bear and MST. This is Part 1 – Part 2 will run tomorrow, Friday, January 10.
January 9, 2014

Editor’s Note – Contributing MST writer Michael Bear is an AAUS (American Academy of Underwater Sciences) Science Diver and a Featured Contributor with California Diver Magazine. He lives and works in San Diego.

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Recently, the movie ‘Blackfish‘ has created quite a stir in the world of captive orcas and those concerned with the ‘captive display industry,’ ie: SeaWorld and its impact on killer whales.

David Kirby and his dog, Wilson.

David Kirby and his dog, Wilson.

Not everyone is aware that a full year before the movie came out, David Kirby authored a ground-breaking book on the subject, called ‘Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity,’ which was the first in-depth examination of the controversy surrounding the death of one of SeaWorld’s most experienced trainers, Dawn Brancheau, at the hands of one of SeaWorld’s largest bull, Tilikum, as well as the science behind the subject of orcas in general, featuring orca expert, Dr. Naomi Rose, who also appeared in the movie’s DVD extra.

David Kirby is also the author of ‘Evidence of Harm,’ which was a New York Times bestseller, winner of the 2005 Investigative Reporters and Editors (IRE) award for best book, and a finalist for the New York Public Library Helen Bernstein Award for Excellence in Journalism, and ‘Animal Factory,’ an acclaimed investigation into the environmental impact of factory farms which NPR compared to Upton Sinclair’s classic work The Jungle.

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Marine Science Today recently caught up with Mr. Kirby to ask a few questions about some of the issues raised in both the movie and his book. Here’s part one of the two-part interview.
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Q: Although not an orca researcher yourself, you have interviewed several in the course of researching your book, namely, Dr. Naomi Rose and Dr. Astrid van Ginneken, Co-Principal Investigator on the Orca Survey since 1994, so you have obviously done your homework on a subject, which can get pretty emotional at times. SeaWorld says that having orcas in captivity helps educate the public on these complex animals and that without the public display industry, the average person would probably never get to see an orca.

A: It is an emotional issue, to be sure, but when you examine the evidence objectively, weighing both sides of the argument, it is difficult to come to any other conclusion than captivity for killer whales is, on balance, neither good, ethical, nor educational.

1) Seeing orcas at SeaWorld does not educate the public on orcas in the wild. In fact, SeaWorld mis-educates the public about these animals, their natural history, social bonds, longevity, compassion and so on. At SeaWorld, you learn that orcas like to “party” and “dance” to rock music, wave their pectoral fins at people and French kiss each other, which of course is nonsense. I have heard visitors leave the park raving about the ‘Shamu whales,’ but they remain uneducated about the species and the serious challenges that some populations (especially in the Pacific Northwest) must endure, or how to help alleviate these problems.

2) And the argument that most people cannot see orcas in the wild is unfounded. Just recently, all kinds of orcas were spotted off the coast of Southern California, much to the delight of whale watchers out on boats.

3) Furthermore, it costs roughly as much to fly from, say, Chicago, to Orlando or San Diego as it does to fly to Seattle. From there, you can board the Victoria Clipper for a day of orca watching off San Juan Island, which includes 2.5 hours of dedicated viewing (as opposed to the 18-minute Shamu show). It’s true that prices have increased this year: Adult tickets run $83-to-$138, depending on the month, though child tickets are only $22. So for an average family of four, it is still the equivalent, or cheaper, than a day at SeaWorld. And there are many places in the area where you can see orcas from the shore, for free, often more up close than on a boat (where Federal regulations limit vessels to 200 yards away). Finally, many people, especially kids, are fascinated by dinosaurs, yet they have never seen one in person.

Q: Why is captivity for orcas a bad idea?

A: In a word: longevity. One scientific study found that the annual mortality rate for killer whales in captivity is two and a half times higher than orcas in the Pacific Northwest (and more recent estimates put the figure at three times higher). But that is just the beginning.

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The OTHER “Blackfish Effect”

Several people have asked what impact Blackfish has had on DASW, and I would have to say it has been very positive. This morning, the Amazon numbers were still running strong for Kindle and Paperback, especially for an 18-month-old title.

Below are some reader comments from Amazon and GoodReads that mention the movie. Most people view the movie and book as terrific companions to each other, which is great. A double-whammy against captivity.

SOME OF THE AMAZON REVIEWS THAT MENTION BLACKFISH

If you watched Blackfish, this goes into far more detail.

This a good read and I’d thorough and informative. Great to read before or after the movie Blackfish

I read this after I watched the CNN special “Blackfish”. I highly recommend this book for anyone who would like more information on the captive Orcas at the Sea World parks.

This book along with the documentary Blackfish exposes the secrets and lies behind Sea World. They are both worth reading and watching.

This was a fascinating story. I read it before watching the documentary BlackFish. I am so glad I did because this gave way more information.

So many details about why orcas shouldn’t be in captivity! Many more layers of detail to add to “Blackfish”!

After watching the movie Blackfish recently, I was struck by the seemingly deep emotions experienced by the whales when they were captured. I needed to know more. Kirby presents more than enough information on the subject with plenty of research and footnotes.

A must read!! Great to compliment the feature film “Blackfish”!

I watched the movie Blackfish before reading this and I am actually glad that I did, as it was helpful for me to have some background information. Death at SeaWorld is a very emotional and disturbing read that goes into a lot of excellent detail. I could hardly put the book down, staying up many late nights, trying to finish.

I hope that the conversation started with this book and the documentary “Blackfish” will grow to overwhelming volume.

I read the book in 3 days. After reading this and watching the film Blackfish, I was so inspired, I even wrote my college research paper on the topic. Continue reading

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SeaWorld’s Very Rotten Year

This year may go down in history as the beginning of the end of keeping killer whales in captivity in the United States. Theme parks like SeaWorld only have themselves to blame.

While the marine mammal theme park limps toward the end of the year, its executives must be reeling from the blowback as investors, celebrities, journalists, and even students distance themselves from the park and its iconic killer whale shows.

The year started ominously for SeaWorld. In January, Gabriela Cowperthwaite’s documentary Blackfish debuted at Sundance, becoming an international sensation and a pivotal rallying cry for those appalled by the practice of keeping large, social, intelligent creatures in what amounts to an Olympic-sized pool.

But Blackfish was the beginning of SeaWorld’s woes, not the end. As the film made its way through a summertime theatrical release, followed by high-profile screenings on CNN in October, awareness of what really goes on in the park began to grow.

In recent weeks, eight musical acts, including Willie Nelson and Barenaked Ladies, pulled out of a February, 2014 concert series at the Orlando Park, high school students in San Diego, SeaWorld’s backyard, produced a scathing anti-captivity video, many highly critical news stories appeared in print, online, and on television, and the Blackstone Group, which held much of SeaWorld stock, sold 19.5 million shares and its majority ownership, amid worrisome downgrading by some analysts of the company’s value. And despite record profits from increased admission fees and other revenue streams, one million fewer people visited SeaWorld parks in the first nine months of this year compared to last year.

SeaWorld attempted a high-profile pushback, with full-page ads in eight major US newspapers. Its self-defense talking points, easily refuted by Blackfish and my book Death at SeaWorld, were an attempt to convince a skeptical public that orcas performing tricks for tourists is a noble, scientific undertaking.

Among the falsehoods and truth-stretching points made in the ad, SeaWorld insisted it does not separate orca calves from their mothers (it does so routinely), that it no longer captures live whales from the ocean (true, but six SeaWorld killer whales were taken from their families in the sea, and SeaWorld is deeply involved in trying to import wild-caught beluga whales from Russia), that it spent some $70 million on improvements to orca habitats (much of which went to installing fast-rising pool bottoms to rescue trainers caught in the throes of a rampaging whale) and that the Shamu shows benefit killer whales in the wild (there is little evidence to back up this claim, even as orca populations in the US Pacific Northwest decline precipitously).

Anyone who has witnessed the majesty of orcas in the ocean will understand how unethical and outdated the Shamu shows really are. Killer whale families stay together for life, and in many populations, the males never leave their mothers’ side. They possess culture, compassion, and means of communication. They swim up to 100 miles-per-day, and the males’ towering dorsal fins almost never collapse, as opposed to 100-percent of adult males in captivity.

Now, due to Blackfish, CNN, and thousands of activists, word is out that these animals are too smart, too social, too much like us to allow them to be treated this way. There is a growing movement to gradually retire some of these animals to sea pens, where they can live their lives without performing for tourists. Eventually, I predict, our grandchildren will only see orcas in the ocean.

Meanwhile, I expect attendance levels to drop further as the Blackfish effect continues to grow, including an anticipated Oscar nomination for Best Documentary. (It is already on the short list.)

Next year is SeaWorld’s 50th anniversary, but it’s not likely that 2014 will be more felicitous than 2013. Most people, myself included, are not anti-SeaWorld, but anti-captivity for orcas. As long as SeaWorld confines them to a life of servitude, public sentiment will continue to build against the park.

As the website One Green Planet put it, “Sorry SeaWorld, but the American public has spoken: They don’t like you anymore, and have no plans in the future to reinstate their support.”

Company executives and investors should brace themselves for more brand-damaging rhetoric in the new year.

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I Remember Mandela: My Personal Encounter with a Freedom Fighter

I realize this is off topic, but I recently posted the following account of my personal memories of meeting Nelson Mandela, a leader in the fight for freedom, at TakePart.com.

I was an exchange student in South Africa during the height of apartheid. Years later, I had the amazing opportunity of hanging out with Mandela a bit, in Spain, of all places, with my boss AmFAR Chairwoman Elizabeth Taylor, of all people.

It was an amazing, hilarious experience. Seriously, I almost did a spit-take with my tea.

I hope you enjoy it. Cheers, David.

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Growing up as an apolitical beach bum in 1970s Southern California, I was vaguely aware of the racial oppression and social strife roiling the troubled land of South Africa, and I knew the name Nelson Mandela as someone imprisoned for fighting against the evil of apartheid (Afrikaans for “apartness”). But I had no idea how South Africa and its beloved “Tata,” now gone, would be woven into the fabric of my own life.

When I was 16, I applied to become an AFS exchange student and was thrilled to be selected for one of the coveted spots. I didn’t think through the implications of my destination. I was expecting Belgium, maybe, or Argentina. I didn’t even know AFS went to South Africa. It was October 1976, months after the highly publicized rioting that claimed more than 600 lives in Soweto, the sprawling all-black slum outside Johannesburg. My mom, panicking, phoned the State Department to ensure it was safe.

Inside Joseph’s cramped quarters, Mandela was a hero, a martyr, a saint. But outside, in the comfortable, white South African world where I spent most of my time, Mandela was a terrorist, a Communist, and a deadly threat.

Looking back, I should have refused the trip on moral grounds. But I was 16, ready for adventure, and had no idea what a repressive, racist, quasi-fascist police state I was heading for. AFS sent reading materials on what to expect with the racial situation in my host country, but it made things sound rather 1950s Mississippi, when frankly they were more like 1850s Mississippi.

I was appalled by apartheid. There were four official racial classifications, utterly separated from each other by geography, culture, and often language: whites (English and Afrikaans), blacks (called Bantu), Asians (largely Indians and Chinese), and “coloreds,” mostly a mix of white and Bantu. For purposes of transportation, hotels, and restaurants, Japanese and American blacks (known as “negroes” and “negresses,” to distinguish them from Bantu) were granted “honorary white” status.

The commuter train to Johannesburg from our suburb of Benoni had 10 cars: Seven of them were marked “First Class—Whites Only,” and they were spacious, clean, and largely empty. The other three cars were marked “Third Class—Non-Whites Only” (there was no Second Class), and they were consistently packed with the nation’s poor, heading to work, cooking and cleaning for white people. I wanted to ride in the Third Class car but would have been arrested. Continue reading

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Willie Nelson: I Don’t Agree With SeaWorld

UPDATE – DEC 6, 2013 – Willie Nelson has confirmed that he pulled out of a concert at SeaWorld because he doesn’t “agree with the way they treat their animals.”

Just days after the musical group Barenaked Ladies announced they were pulling out of a tour date at SeaWorld Orlando, Nelson also cancelled his own performance at the park’s Bands, Brew & BBQ Fest, which Nelson and his group were to kick off on Feb. 1, 2014.

Nelson confirmed the cancellation Friday afternoon during a live telephone interview with Brooke Baldwin on CNN. Despite SeaWorld’s claim of a “scheduling conflict,” Nelson confirmed that it was his friends and fans who led him to the cancellation.

“I had a lot of calls from people asking me to cancel, and I understand there’s petitions going around and, you know, I just had to cancel,” Nelson told Baldwin.

Even his own great granddaughter gathered 250 signatures from, “people she knew asking me not to play the venue,” he said.

“And also,” the music star added, “I don’t agree with the way they treat their animals, so it wasn’t that hard a deal to just cancel.”

Nelson said he feels the same way about zoo animals, adding that, “I understand there are some natural habit zoos out there that are probably okay, but SeaWorld is not okay.”

SeaWorld did not return an email request or phone call for comment.

Sources tell me that a quiet, behind-the-scenes effort was undertaken to reach out to Nelson with information on killer whales in captivity, especially in light of the Barenaked Ladies’ cancellation last week and the October premiere on CNN of the anti-captivity documentary Blackfish.

The popular Canadian group canceled their Feb.15 gig at SeaWorld after drummer Tyler Stewart watched Blackfish and was reportedly rattled by what he saw.

“We’ve talked things over and decided not to play at SeaWorld at this time,” the band wrote on their Facebook page. “This is a complicated issue, and we don’t claim to understand all of it, but we don’t feel comfortable proceeding with the gig at this time. The SeaWorld folks have been gracious and extended us invitations to the park to learn more about what they do, and how they do it,” they continued. “It’s not about money, or petitions, or press…but it is about our fans. We listen to them, and they’re important to us.”

The twin cancellation of two marquis acts is just one more blow to SeaWorld, which, it is fair to say, has had better years. Attendance in the first nine months was down by one million visitors compared with the same period last year.

And then there was the robust reaction to Blackfish. According to Nielsen Fast National data, among the youngest viewers ages 18–34, CNN wiped out the competition, with 471,000 people in this group tuning in, more than eight times the combined number for Fox (31,000) and MSNBC (25,000).  Online and activity was also vigorous. “Blackfish ranked #1 in page views among all CNN films this year,” according to the press release.

“I am thrilled that yet another world-famous, socially conscious artist has chosen to cancel his SeaWorld performance,” says Samantha Berg, a former SeaWorld trainer and a talking head featured in Blackfish. “Mr. Nelson’s decision sends a powerful message that the exploitation of whales and dolphins for human entertainment is unacceptable and that it’s time for SeaWorld and other marine parks and aquariums to do the right thing and end the shows.”

When asked if there was “anything SeaWorld could say or do” to change his mind, Nelson said no way.

“I don’t want to play there,” he explained, “and that’s just the end of the story.”

For now, SeaWorld’s Bands Brews & Barbecue Fest has a rather anemic lineup. Booking major acts at the park, be it in Feb. 2014 or any time after that, will likely become difficult as public pressure is brought to bear on potential performers.

And that will hurt SeaWorld’s already tarnished reputation, not to mention its bottom line.

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