AMONG THE ANIMALS: Lawsuits for orcas

Orcas in Puget Sound

Orcas in Puget Sounds. Courtesy of the Orca Network

by Christie Lagally

Originally published in City Living Seattle

June 2015

(c) Pacific Publishing Company

Take a ferry out of the Port of Seattle in August and you may encounter resident pods of orcas. Three pods — known as J, K and L — are revered by visitors and cherished by locals, some of whom are working to protect orcas who were taken from the ocean and confined to amusement parks.

The fight for captive orcas began after the brutal capture of seven young orcas from Penn Cove on Whidbey Island in 1970; only one of the young whales survives today. Lolita, a member of L Pod, has been held in captivity for 45 years at the Miami Seaquarium.

Twenty years ago, the campaign for Lolita’s return to Puget Sound was launched at the Daybreak Star Cultural Center in Discovery Park by whale researcher Ken Balcomb, former Gov. Mike Lowry and former Secretary of State Ralph Munro. Later, local resident Howard Garrett formed the Orca Network, an advocacy group that campaigns for Lolita’s return to her native waters.

The Orca Network calls for Lolita to be returned to Puget Sound to a sea pen, a large enclosed ocean cove in the San Juan Islands. There, she could live out her life in proximity to her family and perhaps live freely in the Salish Sea.

The Seaquarium has refused to return Lolita.

Earlier this year, a team of lawyers and activists made progress toward Lolita’s return by successfully arguing that she, as a member of Puget Sound’s endangered resident whale pods, should be listed as endangered herself. Until now, the “endangered” designation excluded whales from the population who were already in captivity at the time of the listing — a designation that included only Lolita. Yet, despite this new designation, the Seaquarium still refuses Lolita’s freedom.

So, this summer, Garrett, the Orca Network, People for the Ethical Treatment of Animals (PETA) and a legal team from the PETA Foundation and the Animal Legal Defense Fund (ALDF) filed a lawsuit claiming that Lolita is being harmed under the statutes of the Endangered Species Act (ESA), which protects animals from harassment and cruelty.

The lawsuit claims that Lolita’s capture and confinement in a concrete tank in Miami’s hot sun, being forced to perform for food and living in isolation, with no contact with members of her own species is a clear violation of her protected status as an endangered orca. Garrett explains that the court now has to agree that these acts of cruelty are an ESA violation and are causing harassment or harm to, or wounding, Lolita.

Jared Goodman, a lawyer for the PETA Foundation, explains that the next steps for the lawsuit are a scheduling conference and discovery, in which the parties exchange information and evidence.

You can support these efforts to bring Lolita back to Puget Sound by donating to PETA (peta.org) and ALDF (aldf.org).

Audience deception

Like at the Seaquarium, orcas are also confined to tanks at SeaWorld. The 2013 documentary “Blackfish” and recent books by journalist David Kirby (“Death at SeaWorld”) and former SeaWorld trainer John Hargrove (“Beneath the Surface”) all reveal the dismal, abusive and cruel lives that whales suffer at SeaWorld.

Yet, despite the expert investigative reporting and firsthand accounts of cruelty, SeaWorld officials continue to promote their orca shows to an unsuspecting, high-paying audience.

One law firm sees SeaWorld’s actions as a different kind of injustice, in that it is the consumer, as well as the orcas, who have been wronged. Seattle-based law firm Hagens Berman has filed a lawsuit on behalf of SeaWorld’s customers who would never have paid to visit SeaWorld had they known of the abusive conditions for the whales.

According to the firm, the lawsuit alleges that “SeaWorld deliberately conceals the unethical treatment and conditions of its captive orcas, including psychoactive drugging, forced separation of calves from mothers, forced and unnatural breeding and cramped conditions that lead to aggression and disease.”

Hagens Berman is not a public-interest organization but specializes in class action lawsuits in which consumers have been harmed because a business failed to tell the truth about its product.

“We believe in the justness of this case,” said Shayne Stevenson, a lawyer with Hagens Berman, who shared that his firm also works human rights cases.

Stevenson said that SeaWorld has a responsibility to tell the truth about the treatment and condition of its captive orcas instead of continuing to maintain that these captive orcas are nurtured and cared for and “confidently telling the public that its orcas even enjoy their lives performing in captivity.”

The suit states, “Customers misled by SeaWorld’s false statements and material omissions, who unwittingly and regrettably paid money to SeaWorld based upon a false understanding of whale conditions and treatment caused by SeaWorld’s misinformation campaign, are entitled to have those funds returned to them.”

Consumers who have attended SeaWorld in the last four years can request to be a part of the lawsuit by contacting Hagens Berman at SeaWorld@hbsslaw.com or by calling (206) 623-7292.

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