BILL ANALYSIS Ó AB 2140 Page 1 Date of Hearing: April 8, 2014 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Anthony Rendon, Chair AB 2140 (Bloom) - As Amended: March 28, 2014 SUBJECT : Marine Mammals; Protection of Orcas (Killer Whales) SUMMARY : Makes it unlawful to hold in captivity, or use, an orca for performance or entertainment purposes, or to capture, import, export, or breed an orca in captivity. Specifically, this bill : 1)Makes it unlawful to do any of the following: a) Hold in captivity, or use, a wild-caught or captive-bred orca for performance or entertainment purposes. b) Capture in state waters, or import from another state, any orca intended to be used for performance or entertainment purposes. c) Breed or impregnate an orca in captivity. d) Export, collect or import from another state the semen, other gametes, or embryos of an orca held in captivity for the purpose of artificial insemination. 2)Makes a violation of the above prohibitions punishable as a misdemeanor and a fine of up to $100,000 or six months imprisonment, or both the fine and imprisonment. 3)Exempts from these prohibitions an orca that is held for rehabilitation after a rescue or stranding, or for research purposes, provided the orca is returned to the wild whenever possible or held in a sea pen that is open to the public and not used for performance or entertainment purposes. 4)Requires that orcas held for performance or entertainment purposes prior to the enactment of this bill shall be rehabilitated and returned to the wild where possible, subject to any required state or federal permits. Requires if it is not possible to return the orca to the wild, based on the best available science, then the orca shall be transferred to a sea pen. Allows the orca to be held in existing enclosures until a sea pen is established. 5)Defines various terms for purposes of this bill, including AB 2140 Page 2 "performance or entertainment purposes" which is defined to mean any routinely scheduled public exhibition that is characterized by music or other sound effects, choreographed display or training for that display, or unprotected contact between humans and orcas. EXISTING LAW : 1)Under the federal Marine Mammal Protection Act (MMPA), prohibits the take of any whale species without specific authorization. Allows permits to be issued for take of a whale from the wild for a limited number of purposes, including for scientific research, for purpose of public display, or for enhancing the survival or recovery of specific stocks. Authorization can also be given for incidental take of marine mammals in the course of conducting certain activities. The National Marine Fisheries Service (NMFS) is responsible for enforcement of the MMPA. Requirements for permits for public display include that the entity offers a program for education or conservation based on professionally recognized standards of the public display community, is registered or holds a license under the Animal Welfare Act, and maintains facilities open to the public on a regularly scheduled basis. 2)Governs captive care, handling, treatment and transportation of marine mammals held for public display, and maintenance of marine mammal exhibits, under the federal Animal Welfare Act. The Department of Agriculture, Animal and Plant Health Inspection Service is responsible for enforcement of the Animal Welfare Act. Standards for maintenance and structure of orca pools include: minimum horizontal dimension, volume and depth requirements; a plan of care approved by a veterinarian; and that animals be housed with at least one compatible animal of the same or biologically related species. Examples of pool dimensions include that a pool holding two orcas must have a minimum diameter of 48 feet, a depth of 12 feet, and a minimum volume of 615 meters. FISCAL EFFECT : Unknown COMMENTS : Killer Whales (Orcinus orca), also known as orcas, are toothed marine mammals belonging to the order Cetacea, which includes whales, dolphins and porpoises. As members of the Delphinidae family, they are actually more closely related to AB 2140 Page 3 dolphins than true whales. Orcas are wide ranging apex predators found in most oceans of the world. They are known to be highly intelligent and highly social animals, living in matrilineal family groups which are among the most stable of any animal species. Family groups of orcas form pods that live and hunt together, with male and often female offspring staying with their mothers for life. They are one of the world's fastest moving marine mammals, able to swim at speeds approaching 35 miles per hour, and often covering 100 miles or more per day. Orcas range in size from 16 to 30 feet in length, and may weigh as much as 20,000 pounds (males average 6 tons and females average 3 to 4 tons). Their sophisticated hunting techniques and vocalizations, which often include specific dialects unique to a particular pod, have been described by scientists as manifestations of culture. According to NMFS, the life expectancy for male orcas in the wild is on average 30 years, up to a maximum of 50-60 years, and for female orcas on average 50 years, with a maximum life span of 80-90 years. NMFS indicates that most information on orca life history comes from long term studies of wild populations in the eastern North Pacific Ocean. Research off the coasts of Canada and the United States have identified three main types or sub-species of orcas in the Pacific: 1) Resident orcas (in coastal northeast Pacific including Puget Sound area), the diet of which consists primarily of fish, and which live in complex, cohesive family groups called pods; 2) Transient orcas, that travel in smaller groups and roam more widely along the coast from Alaska to California and live mostly on marine mammals, and 3) Offshore orcas that feed primarily on schooling fish and sharks, but may also eat marine mammals. This third type travel mostly in large groups and were not discovered until 1988. Two populations of orcas have received special protection, the southern resident population which is listed as endangered under the federal Endangered Species Act, and the AT1 transient population which is classified as depleted. All populations of orcas are also protected under the MMPA. This bill addresses the controversial practice of keeping captive orcas in marine parks for public entertainment purposes. Currently, there are 45 orcas in captivity in the world, 26 of which were born in captivity and 19 of which were captured from the wild. About half of the orcas in captivity are owned by SeaWorld, which has three marine parks in the United States. AB 2140 Page 4 The author of this bill notes that "after the tragic death of SeaWorld trainer Dawn Brancheau, the public has begun to question the moral justification for keeping orcas in captivity for our general entertainment. After humans, killer whales are the most socially and ecologically complex species on the planet. Scientists studying killer whales in the wild have documented the close social bonds these animals share?.Killer whales are capable of traveling 100 miles per day and are found in all the world's oceans, yet are allowed to be held in small concrete tanks. As a state we should lead the way in ending captivity for entertainment purposes?by capture or captive breeding programs here in California?.If we truly want to help orcas, then we should focus our efforts on restoring habitat in the wild and protecting our oceans." The main concerns and assertions the author and sponsors of this bill raise with regard to keeping orcas in captivity include the following: 1.The orca's natural environment, which includes the vast open oceans, cannot be replicated in a marine park environment. The species' high intelligence, large size, and complex social structure make orcas unsuitable for captivity. Reported incidents of aggression among whales in captivity and self-inflicted injuries are signs of the stress and suffering experienced by these animals. Adverse physical and psychological effects are evidenced by unnatural behaviors such as ramming, dental problems from gnawing on metal gates, repetitive swimming in circles, and dorsal fin collapse, which is experienced by virtually all male orcas in captivity, but only 1% of orcas in the wild. 2.Proponents assert requiring orcas to perform tricks for human entertainment is demeaning and disrespectful to these highly intelligent animals. The unnatural, artificial groupings that orcas are put into in captivity causes stress because it is contrary to the experience of orcas in the wild, where they stay in cohesive, matrilineal family groups for life. When dominance issues arise, the animals also do not have a means of escape as they would in the wild. 3.Orcas in captivity have shorter life spans on average than wild orcas. Note: This issue is debated in the literature. According to NMFS biologists, prior to the year 2000 the AB 2140 Page 5 evidence showed that the life expectancy of orcas in captivity was significantly lower than those in the wild. However, according to NMFS, since the year 2000, survivorship statistics have improved for captive orcas and are now comparable to those in the wild. Other scientists and supporters of this bill disagree with that conclusion and counter that not all deaths of newborn orcas are included in the industry's statistics. They maintain that the maximum age for captive orcas is the mean age for wild ones. 4.Training of orcas in captivity poses serious risks to humans. Since orcas have been kept in captivity, four persons have been killed, and other serious injuries to trainers have been reported. In contrast, there are no confirmed reports of orcas seriously injuring, let alone killing, humans in the wild. SeaWorld is currently under an OSHA order that prohibits trainers from having human contact with orcas unless protected by a physical barrier. That order is being appealed by SeaWorld in federal court. 5.Captive breeding programs are also opposed by proponents. While SeaWorld maintains that they have not captured orcas from the wild for many years, proponents note they have taken orcas captured in the wild by others, and the existence of the entertainment industry for orcas creates continued market pressure for wild captures. In addition, supporters assert that whether captive bred or wild captured, orcas are just too big, too social, too intelligent, and too wide-ranging to be kept in captivity. Orcas born in captivity are still members of a species that has evolved over millions of years to live in the open oceans. Supporters also raise concerns regarding genetic diversity and inbreeding problems with captive breeding programs, asserting this may eventually create pressure to recruit more animals from the wild to address genetic diversity needs of the captive population. SeaWorld counters the above arguments with the following points: 1.SeaWorld contends there is nothing wrong with the current approach to keeping orcas in captivity and that SeaWorld provides professional and compassionate care to all the whales it holds, all of which are healthy and have life spans equivalent to those in the wild. The whales receive a healthy diet, veterinary care, and adequate exercise, and live in socially compatible groups. They acknowledge that while AB 2140 Page 6 whales in captivity do not live the same lifestyle as their wild counterparts, this difference does not translate to negative welfare of the animals. Banning use of orcas in performance and entertainment would jeopardize the health and well-being of the animals which receive stimulation and health benefits from the trainings and performances. They claim SeaWorld's positive reinforcement training has become the model for other zoological institutions. 2.SeaWorld contends banning captive breeding would not be in the best interest of the whales as it would require separation of the sexes and deny the whales the experience of having offspring. They assert their captive breeding program has been very successful, is carried out according to internationally recognized zoological standards applicable to breeding programs, and makes it possible to display killer whales to the public without collecting whales from the wild. 3.Transferring the whales to sea pens is not a practical solution and could pose security problems, water quality concerns, and other risks to the whales and others. They assert there is no evidence that sea pens would provide a better environment for the whales. 4.SeaWorld asserts it's care of captive orcas benefits orcas in the wild, and this bill would diminish the ability of scientists and researchers to study killer whales in captivity as the only way to learn how to better ensure the health and well-being of killer whales in the wild. SeaWorld contributes to scientific research through its support of the Hubbs-SeaWorld Research Institute. SeaWorld is also a recognized leader in marine life rescue and rehabilitation, and notes that it has rescued thousands of marine animals with the goal of treating them and returning them to the wild. 5.SeaWorld notes its business provides major economic benefits to the San Diego region and the state, paying over $5 million in property tax in 2013 and providing 4,500 jobs during the peak season. More than 9 million students and teachers have participated in SeaWorld educational programs. Scientific Research Issues : One of the arguments for keeping orcas in captivity is that studies of captive orcas contribute to scientific knowledge of orca natural history. SeaWorld notes that research conducted on captive whales at SeaWorld have AB 2140 Page 7 increased scientific understanding of reproductive physiology, vocalization, development and learning capacity. Researchers affiliated with SeaWorld have authored numerous published research studies on killer whales. In addition to research on killer whale physiology, researchers at Hubbs-SeaWorld Research Institute have conducted research on bioacoustics, the study of animal sound production and perception. Additional examples of research on captive orcas at SeaWorld through Hubbs include: resting oxygen consumption rates and basal metabolism; studies of teeth tissue to estimate age of whales; calling behaviors between mothers and calves; and effects of fishing gear adaptations such as audible pingers on marine mammals. Researchers based at Hubbs also conduct research on marine mammals in the wild, including research on marine mammal strandings, and have authored field guides and other books. While there appears to be agreement that past research on captive orcas has provided insights into cetacean intelligence and cognition, as well as information about issues such as reproductive life cycles and acoustics, the continued need and relevance of captive orca research to understanding of wild orcas is questioned by some marine scientists. While there may be greater control in captive settings, the unknown effects of living in an artificial environment on behaviors and development can limit the application of such research to animals in the wild. Some scientists assert that with certain exceptions, there is little research today that scientists are getting from captive facilities that could not be gotten from the wild, particularly with newer technologies now being used for whale research. Examples of newer technologies include small biopsy darts, GPS technology, laser range finders, and satellite tagging. Consequently, it is argued that field studies designed to broaden understanding of a species' ecology and behavior, in order to shape conservation efforts, provide more relevant knowledge than captive studies. The physically restricted conditions of captivity, the effects of the unnatural captive environment on animal behavior, the small number of animals involved, and the limited genetic basis of captive orca populations, are said to cast doubt on the scientific basis for using captive animals as models for wild animals, especially given the increasing sophistication of studies on wild animals and the greater relevance of data from field studies. It should be noted that Hubbs-SeaWorld, as described above, is involved in significant research beyond its research on captive AB 2140 Page 8 orcas, both in California and other parts of the world. Hubbs is a nonprofit entity that was founded by SeaWorld and receives 5-25% of their annual funding from SeaWorld, in addition to the use of its marine park facilities and animals for research. It should also be noted the author of this bill expresses support for the research and rescue work of SeaWorld and the Hubbs-SeaWorld Research Institute, and contends these activities should continue and would not be affected by this bill. Public Safety Issues : Since orcas have been kept in captivity there have been four deaths of humans involving captive killer whales. In 1991, 20 year old trainer Keltie Byrne was killed in an incident at SeaLand in Canada involving three whales, including a male orca named Tilikum. The SeaLand facility was subsequently closed and Tilikum was moved to SeaWorld in Orlando. In 1999, a visitor to SeaWorld entered Tilikum's tank after hours and was subsequently found drowned in the tank. In 2009, 29 year old trainer Alexis Martinez was killed by an orca at Loro Parque in Spain. In 2010, trainer Dawn Brancheau was killed by Tilikum at SeaWorld in Orlando. In addition to the deaths there have been a number of reported incidents involving serious injuries to trainers who survived. SeaWorld has maintained that the deaths were unfortunate accidents and that overall the organization has a good safety record and follows appropriate safety protocol. SeaWorld was cited by federal OSHA for violating federal safety standards in the 2010 death of Dawn Brancheau. OSHA issued a "wilful" violation order against SeaWorld and ordered that trainers not be allowed in the water with the whales and must be protected by a physical barrier. SeaWorld appealed OSHA's decision to an OSHA review commission. The review reduced the violation classification from wilful to serious, but upheld OSHA's safety mandates. The Administrative Law Judge (ALJ) found that SeaWorld knew that training orcas involved inherent risks to trainers. According to the court decision, between 1988 and 2009 SeaWorld documented 100 incident reports, 12 documented injuries and 1 death. The ALJ found that "no reasonable person would conclude that SeaWorld was unaware that working in close contact with killer whales during performances creates a hazard for its trainers?SeaWorld knew its trainers were at risk for being struck or drowned by a killer whale." The court further found that "SeaWorld's reliance on its trainers to recognize precursors and prevent unpredictable AB 2140 Page 9 behavior by the killer whales runs counter to the requirements of the Act. The duty of care rests with the employer. An employer cannot shift this responsibility to its employees by relying on them to, in effect, determine whether the conditions under which they are working is unsafe." The court found that SeaWorld's own incident reports demonstrate its safety program exposes its trainers to the risks of death or serious physical injury, and that SeaWorld's training program cannot remove the element of unpredictability inherent in working with killer whales. SeaWorld appealed that decision to a Secretary of Labor discretionary review panel which declined review, allowing the ruling to stand. That decision was then appealed by SeaWorld to the U.S. Court of Appeals in the District of Columbia. Oral arguments were heard in the case in November 2013 and a decision is pending. Other Governmental Entities that have banned holding of orcas for entertainment : At least six countries have banned captive orca displays, as have one state and one county (Maui, Hawaii) in the United States. The State of South Carolina's law makes it unlawful to display any wild caught or captive-bred mammal of the order Cetacea (dolphins and whales). India, Croatia, Costa Rica, Hungary, and Chile prohibit captive orca and dolphin shows. Switzerland has prohibited the importation of any live dolphin species. Greece has a broader ban on the use of animals for performance or entertainment. A proposal similar to this bill is also being considered by the New York legislature this year. Suggested Amendments : SeaWorld has raised concerns regarding the feasibility of keeping orcas in sea pens, which may not be available. This bill provides that the orcas may be held in existing enclosures until a sea pen is established. If the orcas are maintained in their existing facilities, SeaWorld asserts that the prohibition on performance in this bill could prevent trainers from working with the orcas to ensure they receive the exercise and stimulation the animals need. This bill provides that "performance or entertainment purposes" includes, but is not limited to, any routinely scheduled public exhibition that is characterized by music or other sound effects, choreographed display or training for that display, or unprotected contact between humans and orcas. The "but is not limited to" phrase leaves the definition of what is prohibited activities open ended and uncertain. If the committee elects to approve this bill, staff recommends that amendments be taken to AB 2140 Page 10 clarify the activities that are prohibited and allowed under the bill as follows: (2) "Performance or entertainment purposes" includes,but is not limited to, any routinely scheduled public exhibition that is characterized by music or other sound effects, choreographed display or training for that display, or unprotected contact between humans and orcas. Holding of an orca is not, by itself, a performance or entertainment purpose. Performance or entertainment does not include activities necessary for the general health and welfare of an orca including veterinary care, husbandry, and related activities necessary to provide required exercise and stimulation, and the training required for those activities. The author also proposes the following technical amendments to address possible federal preemption issues: Amend subdivisions 4502(a) (2) and (4) to read as follows: (2)Capture in state waters, or import from another stateSell, offer for sale, trade or transfer for any reason other than transport to a sea pen any orca intended to be used for performance or entertainment purposes. (4)Export, Collect,or import from another statesell, offer for sale, trade, or transport in any manner the semen, other gametes, or embryos of an orca held in captivity for the purpose of artificial insemination. Additionally, they shall not be used for performance or entertainment purposes. Where, based on best available science, it is determined that an orca has the potential to return to the wild under paragraph (2)?. Similarly, Section 4502 (c) (3) to be amended as follows: (3) Until an appropriate sea pen has been established, captive orcas held in the state may be kept in existing enclosures. Those orcas shall not beexportedsold, offered for sale, traded, transferred for any reason other than transport to a sea pen, or used for gametes or embryos intended for artificial insemination? Support Arguments : Supporters assert the scientific literature documents the damaging effects of captivity on orcas' physical health and psychological well-being. They point to the record of incidents of orcas in captivity killing and seriously AB 2140 Page 11 injuring humans, other whales and themselves, and in comparison, the absence of any confirmed reports of serious injuries or attacks on humans in the wild. Supporters of this bill include organizations concerned with animal welfare, environmental groups, marine mammal scientists, former orca trainers, labor, and numerous individual citizens. Supporters assert the conclusion from decades of cumulative results of both captive and field studies is that cetaceans possess a level of intelligence, awareness, and psychological sensitivity that makes it unacceptable to continue to keep them in captivity if not necessary for their welfare, survival, or conservation. Supporters also note that a recent random poll showed that only 26% of California citizens support continuing to keep orcas in captivity for entertainment purposes. A statement signed by 35 marine mammal scientists from research institutions around the world including the University of California and other state universities was received in support of this bill. The statement notes that when killer whales were first displayed in the early 1960s little was known about their ecology and behavior, that there was a steep learning curve during the first two decades and survivorship improved, but that there has been little improvement since then. They note the science on the nature of killer whales makes them inherently unsuited for confinement in concrete tanks. The statement supports the goals of phasing out the practice of holding orcas in captivity and a ban on captive breeding. The scientists indicate that most of the orcas now in captivity in California are probably not candidates for release to the wild, but could be placed in well-designed and appropriately sited sea pens, guided by best available science, where they would have more natural surroundings, and where training for husbandry and veterinary purposes could continue and the animals could be viewed by the public. Opposition Arguments : SeaWorld asserts in opposition to this bill that orcas in their care are well taken care of, receive regular veterinary check-ups and a balanced diet, and get plenty of exercise. They also argue that keeping orcas in captivity contributes to public education and scientific research, that they haven't captured orcas from the wild in 35 years and do not separate calves from their mothers, and that Sea World is a world leader in animal rescue. They note in particular their work on rescue and rehabilitation of stranded marine life, and research they have funded through the Hubbs-SeaWorld Research AB 2140 Page 12 Institute. SeaWorld also notes that captive orca displays and shows have served an important public education function, thereby benefiting conservation of orcas in the wild. SeaWorld also claims the requirements for release or sea pens in this bill are unworkable and would be harmful to the whales. SeaWorld notes that 9 million visitors have visited SeaWorld, and 100,000 children and teachers per year attend educational programs. SeaWorld indicates it has invested $70 million in their killer whale facilities throughout their parks in the last three years. Other opponents of this bill also note the economic contributions of SeaWorld in San Diego, where they provide 4,500 jobs, serve 4.5 million visitors, and contribute millions in taxes and rental income to the City of San Diego. They assert that this bill would not only harm SeaWorld but the restaurants, hotels, small businesses and employees of the region, and the overall tourist economy of the state. REGISTERED SUPPORT / OPPOSITION : Support Animal Welfare Institute (sponsor) Action for Animals American Society for the Prevention of Cruelty to Animals (ASPCA) Animal Legal Defense Fund Born Free USA Dolphin Project Earth Island Institute, International Marine Mammal Project Environmental Protection Information Center (EPIC) Free Willy Keiko Foundation Humane Society of the United States In Defense of Animals Jean-Michel Cousteau's Ocean Futures Society League of Humane Voters Local 30 UNITEHERE, San Diego County Hotel and Food Service Workers' Union Marine Connection Protecting Earth & Animals with Compassion & Education (PEACE) Public Interest Coalition Sierra Club California Whale and Dolphin Conservation Wild Orca Women Occupy San Diego AB 2140 Page 13 Numerous individuals Opposition Anaheim/Orange County Visitor and Convention Bureau Opposition - continued California Association of Boutique & Breakfast Inns California Association of Zoos and Aquariums California Chamber of Commerce California Hotel & Lodging Association California Retailers Association California Travel Association City of Chula Vista Hotels in the Best Destinations San Diego Regional Chamber of Commerce SeaWorld Strategic Roundtable Analysis Prepared by : Diane Colborn / W., P. & W. / (916) 319-2096