Full Title Name:  Detailed Discussion of Laws Concerning Orcas in Captivity

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Lauren Tierney Place of Publication:  Michigan State University College of Law Publish Year:  2010 Primary Citation:  Animal Legal & Historical Center 1 Country of Origin:  United States

This discussion focuses on the use of orca whales in captivity and the laws and regulations that govern such use. It then analyzes the legal issues these facilities face as a consequence. Specifically, this article examines the application of regulations associated with the Animal Welfare Act, Marine Mammal Protection Act, and the self-regulation of aquatic animal parks and zoos. It then concludes by examining some actual case studies involving captive whales. Finally, the future of orcas in captivity is discussed with both the pros and cons of housing these creatures.


Whales have been in captivity since 1861 when P.T. Barnum displayed the first live whale, a beluga whale that was captured from the St. Lawrence River in Canada. However, Barnum had no idea how to care for the mammal and it died after only a week in captivity. Since then, people have been using whales for entertainment purposes leading to the rise of dolphinariums and marine mammal parks across the nation. While the nature and life of captive whales has greatly improved since 1861, along with the knowledge of their human caretakers, the controversy of captive whales is still a hot topic.   Incidents such as the recent one between an orca named Tillikum and his trainer Dawn Brancheau, as well as concerns over an orca named Lolita’s tank size, continue to spark concerns over whether marine mammals should be housed for entertainment purposes.

Despite public concern, federal regulations that deal with the housing of marine mammals are often not well-enforced.   While there are numerous different species of whales and marine mammals in captivity, this discussion focuses on the use of orca whales (also known as killer whales) in captivity and the laws and regulations that govern such use.   It then analyzes the legal issues these facilities face as a consequence.   Specifically, this article examines the application of regulations associated with the Animal Welfare Act, Marine Mammal Protection Act, and the self-regulation of aquatic animal parks and zoos.   It then concludes by examining some actual case studies involving captive whales.   Finally, the future of orcas in captivity is discussed with both the pros and cons of housing these creatures.  



There are currently around 50 orcas living in captivity around the world.   The majority of these whales are housed in marine amusement parks in tanks or pens that are a fraction of the size of their normal environment. The confined quarters and limited interaction with other members of the species fails to replicate an orca’s natural existence. This can lead to danger to the animal’s physical well-being as well as stressors to its mental health.   Orcas living in captivity for public display live significantly different lives than their wild counterparts.   Both their physical and social environments are altered by their presence in captivity.   

A. Physical Environment

Not only is an orca’s social structure affected in captivity, but its habitat is vastly reduced, sometimes causing physiological changes. Wild orcas have been noted as diving hundreds of feet under the water, the record diving recorded being 1,000 feet, and spend the majority of their time under the water. Due to obvious structural limitations, orcas living in captivity do not have the capability of doing so as the average show pool is only 27.6 feet deep. [1] Thus, they tend to spend most of their time on the surface of the water, especially when interacting with their human trainers and handlers. This may potentially be the cause of what is known as "dorsal droop”.   More predominantly present in males (due to their taller dorsal fin), "dorsal droop" is when the dorsal fin collapses over on itself like it has been folded over to the side in an arc. Some speculate that while spending more time at the surface, the whale is no longer utilizing the buoyancy of the water and the fin is not able to continue to support itself against the pull of gravity. Others say that it is from the cartilage collapsing on itself from constantly swimming in circles. Orca whales in captivity are forced to swim in circles opposed to the 100 miles they may swim in the wild. [2]

Some mammals are kept in sea pens rather than tank pools. Sea pens are fenced off portions of open either seawater or a lagoon. Some suggest that sea pens are better for the whales because of the natural seawater, and the more natural surroundings. However, there are still multiple problems with sea pens. They tend to be close to pollution (road runoff, and sewage from land based septic tanks, fecal waste, and detritus from the uneaten decomposing fish), and high levels of sound pollution from boat traffic and coastal development that may cause distress and hearing damage. [3]

Sea pens are typically located in areas that are subject to hurricanes or typhoons. [4] The whales are typically not evacuated which leads to the escape of non-native species into the open waters or even death. [5] When hurricane Katrina hit in 2005, eight dolphins were left behind at Marine Life Oceanarium in Mississippi. They were all carried out into the Gulf in the storm surge. They were eventually rescued costing tens of thousands of dollars in taxpayer money. [6] Sea pens also cause damage to the natural barriers in the waters through dredging and the actual physical removal of them in order to accommodate the pens.

The orca's natural activity levels, sociality, hunting behaviors, acoustic perceptions, and the texture of their natural environments are all compromised by captivity. The habitat of marine mammals is complex and difficult and frequently impossible to recreate or simulate. Typical whale pools are about one ten thousands of 1% of their normal habitat size.   Shamu Stadium at SeaWorld San Diego totals about 2.5 million gallons of water. To put it in perspective:

Erich Hoyt in his 1992 report 'The Performing Orca’ calculated that (based upon the daily travels of a wild orca pod and taking into account even the minimum distance travelled, minimum depth of dives and so forth), the minimum volume of water traversed in an average 24 hours would total 6,006,000,000 cubic feet, containing over 45,302,778,000 gallons.   This is over 9,000 times larger than the sum of the interconnecting orca pools at either Sea World, San Diego or Orlando. [7]

The small pools create a lack of aerobic conditioning and cause the whales to swim in endless circles. It has been shown that larger pools decrease aggression and increase breeding success. [8] However, officials continue to lobby against any regulatory revisions that would increase the minimum pool size standards.

While some pools use actual saltwater pumped in from the ocean, most are not capable of doing so.   Instead, they must use a manufactured seawater mix using filtration and purification methods in order to ensure water clarity. "Orcas have very small bladders and urinate almost continuously, producing several litres of urine, as well as several kilograms of semi-liquid feces daily," putting a lot of work on the filters. [9] Thus, chlorine is often used to supplement filtration systems as it is a good disinfectant and helps maintain water clarity. [10] This manufactured water is another adjustment that orca whales have to make in captivity as their bodies are use to the natural seawater.  

B. Social Environment

When taken from the wild their family bonds are disrupted.   Orcas live in groups of matrilineal families known as pods made up of anywhere from 15-40 whales.   Orcas in captivity do not experience the social atmosphere as exhibited by their pod in the wild as, due to containment restrictions, tanks typically hold no more than four or so orcas.   In captivity, different populations of orcas are mixed together. Both Atlantic and Pacific stocks are housed together. Both resident and transient orcas are housed together even though they maintain different diets, have different habits and social structures [For a biological summary of orcas, click here .] [11]

Killer whales communicate and hunt using echolocation and sonar sounds. Each pod has its own language of communication using the same type of sounds. Even after years in captivity, orcas still use their family pod's language, as witnessed by the orca named Lolita who has been in captivity for nearly four decades. Living within a pool surrounded by white cement walls offers little to stimulate the orca and their sounds often become distorted when bouncing off the walls confusing the whales and making it hard to communicate with each other.

C. Health

Captive orcas face a unique set of health concerns than their wild counterparts.   The captive situation appears to increase the incidence of some infections that are rarely encountered in wild populations.   "Necropsy (autopsy) reports commonly report infestation of parasites such as nematode, trematode, and tapeworm." [12] An increased level of stress can lead to physical health problems as well.   Some orcas adjust quickly to captive life, while others do not.   Many factors can lead to higher levels of stress, including moving the whales, human interaction, competing whale social structure, and performing.   Stress can then lead to a damaged immune system leaving the whales more susceptible to infection.   Reports have shown a "high incidence of death due to bacteria infections, particularly upper respiratory infections. Whilst such infections are not exclusive to captives, it may be inferred that they are aggravated, if not caused by, the highly artificial conditions of confinement." [13] Captive orcas tend to die from illnesses that are not related to old age perhaps due to a decrease in longevity in captivity.

Aggression, both among whales and towards trainers, is of concern to researches as well.   Because whales of different populations and pods are housed together, there is a constant struggle for dominance in social structure.   Whales will ram other whales in effect to show dominance or incompatibility between the whales.   They have also been known to assert aggression toward themselves, in what scientists believe is stress induced behavior.   Whales have been observed ramming their heads into the sides of the tank repetitively causing damage to their nose and even skull fractures.   Aggression toward their trainers seems to be the biggest issue as it involves the safety of humans.   Incidents of whales dragging trainers to the bottom of the pool, grabbing trainers’ legs, and jumping out of the water to land on their trainers have been reported over the years.   Some incidents led to the parks not allowing human interaction in the pools with the orcas, but after some time passed, the parks allowed trainers back into the pools.   "It seems most likely that aggression stems from a combination of factors: the stress of unnatural confinement, sometimes with incompatible pool mates; the pressures of being asked to perform routines by young and often inexperienced trainers in a highly artificial and noisy environment and above all, the sheer frustration and boredom inherent in the captive situation." [14]

Another health issue captive orcas face that few may know about is dental concerns.   Poor dental health can lead to premature mortality amongst the whales.   The primary factors for developing dental health issues in whales are old age and captivity.   Broken and fractured teeth are not an uncommon site at marine parks.   Most damage occurs from threat displays between whales known as "jaw popping."   Jaw popping is when the whales, typically separated by steel gates, chomp down on the gates in an effort to show dominance. [15] The teeth fractures can lead to chronic pain which may result in the whale grinding down the jaw itself.  

Another cause of dental health are procedures known as tooth "flattening" and tooth "drilling." "Few people are aware of the practice where captive orcas routinely have holes drilled in their teeth as well as “grinding” or “flattening” of their teeth." [16] Whales then typically receive "tooth flushes" three times a day, where the teeth are "flushed" "by filling the reservoir of a device with a Betadine solution which is pumped down into the jaw."   The holes in the teeth need to be flushed because if remnants of their food are not flushed out, it may lead to infection.   Poor dentition care can lead to other health problems such as endocartisis, Pneumonia, Sepsis, valvular heart disease. [17]



Since the passage of the Marine Mammal Protection Act (MMPA) in 1972, it has been illegal for anyone to “take” (kill, hunt, injure or harass) any species of whale. However, the law allows permits to be issued for the purpose of public display. This is the avenue under which marine mammal parks have been able to obtain captive orcas. While the Animal Welfare Act (AWA) , places certain responsibilities on these exhibitors, and industry accreditation services encourage minimum standards of care, some suggest that these lack in enforcement and accountability .

A. Marine Mammal Protection Act

The most significant legislation for the protection of whales is the Marine Mammal Protection Act (MMPA) enacted October 21, 1972, which has been substantially amended in following years. The MMPA prohibits the "taking" of marine mammals without specific authorization and has enacted a moratorium on the import, export, and sale of any marine mammal, or any part of marine mammal within the United States. 16 U.S.C. 1372 . "Taking" is defined as "the act of hunting , killing, capture, and/or harassment of any marine mammal; or, the attempt at such." [18]

The MMPA issues permits authorizing the "taking" or marine mammals. Among permits issued are those typically for scientific research, public display, or enhancing the survival or recovery or a species or stock. The Secretary will issue a permit for public display to a person he determines:

(i) offers a program for education or conservation purposes that is based on professionally recognized standards of the public display community;

(ii) is registered or holds a license issued under 7 U.S.C. §2131 et seq.; and

(iii) maintains facilities for the public display of marine mammals that are open to the public on a regularly scheduled basis and that access to such facilities is not limited or restricted other than by charging of an admission fee. [19]

This is the type of permit under which most marine mammal parks have obtained their orcas.   The permit must also specify the methods of capture, supervision, care, and transportation which must be observed pursuant to such taking and must furnish the Secretary with a report of all activities pursuant to that permit. [20] For a more detailed discussion of the Marine Mammal Protection Act and whales please see the Discussion on Dolphins under the MMPA .

B. Animal Welfare Act

The Animal Welfare Act (AWA) was signed into law in 1966 and governs the humane care, handling, treatment and transportation of animals in certain situations. The act is typically regarded as covering animals in laboratories, animal exhibitors, carriers and handlers, puppy mills, dog and cat breeders, puppy mills, zoos, circuses, and transporters of animals. [21]   However, a marine mammal is considered an “exhibitor” under Section 2134 and is subject to specific requirements under the companion regulations for the Act. [22]   The Animal and Plant Inspection Services (APHIS) division located within the United States Department of Agriculture is responsible for the enforcement of the AWA. Inspectors are required to inspect, unannounced, the facilities that are covered by the Act. [23]

Since facilities that display orcas to the public are defined under the AWA as "exhibitors," they are required by Section 2134 to obtain a valid license. [24]   Without a license, the exhibitor or dealer is not allowed to sell or transport an orca to another facility.   In order to obtain a license, the exhibitor must show that the facility complies with the standards set up in Section 2143 , discussed below, thus assuring that the orca will be transported humanely and that the new facility is capable of properly providing the specific needs of the orca whale.  

In addition to licensing and recordkeeping, exhibitors must meet certain standards of care at their orca facilities.   The AWA provides standards for the maintenance and structure of orca pools as well as humane handling of the whales.   The AWA sets very specific standards for the size of the pools containing orca whales: "enclosures must be constructed and maintained so that the animals contained within are provided sufficient space, both horizontally and vertically, to be able to make normal postural and social adjustments with adequate freedom of movement, in or out of the water." [25] The standards of care articulated in the regulations contain great specificity on the size of the enclosure.  

The issue of adequate space for large cetaceans like the orca, involves four main factors: the minimum horizontal dimension (MHD), the depth of the pool, the volume of water in the pool, and the surface area (SA) of the pool. [26] The MHD, or length, of the pool must be at least twice the length of the orca and the pool must be at least half the length of the orca deep. [27] Thus, a 24 foot long orca whale must be housed in a tank at least 48 feet long and 12 feet deep.   If multiple orca whales are housed in the same pool, then the size standards must go off the largest orca in that pool. [28]   As long at the pool meets the depth and MHD requirement, then it meets the volume and surface area requirements.   Those portions of the pool that do not meet the minimum depth standard cannot be included when the facility is calculating the space requirements.   Thus, if the pool is only 10 feet deep around its edges, then that portion of the pool cannot be used to determine that the facility has met the proper MHD and surface area standards. [29] The standards are set with the idea that the pool will house two orca whales together.   If the facility adds an additional orca whale, then they must add an additional 10,851.54 cubic feet of water to the pool. [30]

The standards do provide guidance to the facilities on how to calculate the proper surface area of water that is required through a mathematical equation.   The proper surface area of the pool that is required of the facility is demonstrated by an equation.  

The minimum SA = (L[average adult length]/2)2 X 3.14 X 1.5

Thus using the killer whale average length of 7.32 meters or 24 feet,

the min SA = (7.32/2)2 X 3.14 X 1.5 = 63.01 m2/678.24 ft2 [31]

Not only do the regulations detail the enclosure dimensions, but they also recognize the orcas unique social nature. Section 3.109 states that they must be housed in the primary enclosure with at least one compatible animal of same or biologically related species, except when the attending veterinarian, in consultation with husbandry/training staff, determines such housing is not in best interest of marine mammals health or well being. [32]   There are a few requirements that must be met if an animal is to be housed separately.   First, there must be a written plan approved by the attending veterinarian and developed in consultation with the training staff.   It must also include a justification for the length of time kept separate or in isolation, information on the type and frequency of enrichment or interaction (if appropriate), and provisions for periodic review of the plan by the attending veterinarian. [33]

The approach of APHIS appears to be more of encouraging compliance with the standards, rather than penalizing or shutting down facilities that fail to follow the Act. "APHIS is widely regarded as being a more permissive, less effective agency, with a reputation for being more 'industry friendly'.” [34] As there are few inspectors throughout the United States, roughly around 100 or so to inspect every facility, they are thinly-stretched in their ability to do so.   While these regulations contain laudable detail, they are ineffectual without regular enforcement.

C. Industry Self-Regulation 

In addition to overreaching federal laws, large aquariums are also members of self-regulating organizations.   The two most prominent are The Association of Zoos and Aquariums (AZA) and The Alliance of Marine Mammal Parks and Aquariums (AMMPA).   The Association of Zoos and Aquariums is a nonprofit organization dedicated to the advancement of zoos and public aquariums.   The AZA is involved with accrediting zoos and aquariums that meet the high standards of animal care established by the AZA, which are typically higher than those required by law.   Facilities are inspected every five years to be sure that they are still meeting the standards in order to maintain their AZA accreditation.  

Many aquariums are also members of The Alliance. The AMMPA describes itself as "an international association" established in 1987, "representing marine life parks, aquariums, zoos, research facilities, and professional organizations dedicated to the highest standards of care for marine mammals and to their conservation in the wild through public education, scientific study, and wildlife presentations." [35]   The Alliance is the first and largest organization that concerns the public display of marine mammals.   It offers accreditation to facilities that meet the standards and guidelines it has set up in order to optimize the psychological and physical well being of the marine mammals.  



While laws exist to protect whales in the wild and some regulations mandate certain minimum standards of care, incidents involving orcas underscore the concerns of captivity. Two of the most well-known orcas, Tilikum and Lolita, illustrate the concerns of orcas in captivity. This section examines these case studies and how they affect the parks housing the animals.

A. Tilikum

In 1991, Tilikum was one of three whales blamed for the death of a Canadian trainer at Sealand.   In 1992, Tilikum was transferred from Sealand to his current home at SeaWorld in Orlando Florida.    While there i n 1999, a man was found dead in his tank after making it past security after hours at Seaworld. He ultimately died of hypothermia but authorities say that Tilikim bit the man and tore off his swimming trunks. The third incident involved the death of 40-year-old trainer Dawn Brancheau at Seaworld on February 24, 2010 after Tilikum reportedly pulled her into the tank.

Reasons for behavior

Killer whales are wild animals. They are predators, hunting for their food and have wild natural instincts. Therefore, some say it is not surprising for a killer whale to attack a human. But all orca attacks on humans have been in captivity, thus leading people to ask what causes the sudden attack trying to go inside the mind of a killer whale.

Some suggest Tilikum may have been suffering from the cetacean equivalent of anxiety disorder. Post-traumatic stress disorder may very possibly be related to the acts by Tilikum. The process of capture alone may be enough to cause anxiety, in addition to the sustained and chronic stress they are subjected to. [36] Tilikum's case is special because of several reasons:

  • He is the largest orca in captivity, weighing more than six tons, thus his movements are more limited in a tank than a smaller orca housed in the same tank.  
  • He was separated from his Icelandic family pod at the young age of two.
  • Because of his involvement with two other deaths, he is more isolated than the typical captive orca. Susan Berta, co-founder of the Orca Network in Washington State, states that "because of previous incidents, he has been kept in isolation most of the time - except for breeding." [37] Researchers generally say that confinement in a holding pen for long periods of time is stressful to the animal.

Lori Marino of Emory University adds this: "He is an intelligent sensitive animal taken from his family when he was two years old and forced to lead a highly artificial and confined life. This tragedy is just one example of what happens when we continue to use animals in this way." [38]


In August of 2010, the federal job safety agency, OSHA, fined SeaWorld $75,000 for three violations that were uncovered after an investigation due to trainer Dawn Brancheau's death.   They "classified the most serious violation as 'willful', or showing indifference or intentional disregard for employee safety." [39] The citation was for exposing workers to drowning hazards when interacting with orca whales, carrying a fine of $70,000.   "OSHA also suggests that trainers not play with other killer whales at the park, either in the water or out of water, unless they are protected by a barrier or deck." [40] SeaWorld facilities have not allowed trainers into the pools with the orca whales since the February incident.    If " SeaWorld is forced to meet new safety standards, it could mean an end — or at least substantial changes — to the long-running attraction of having trainers swimming with the largest carnivores in captivity." [41]

In addition, Activists demanded that Blackstone Group/SeaWorld release Tilikum to an animal sanctuary and plan to introduce a possible law named “Tilikum's law.” They plan on filing an animal abuse complaint with the United States Department of Agriculture and APHIS, and demand that the USDA-APHIS investigate and examine the psychological suffering as well as the physical conditions that Tilikum experiences.   Tilikum's law would ban all people, including aquatic parks like SeaWorld from possessing and breeding whales and dolphins for entertainment purposes. [42] Tilikum’s law has yet to be drafted, but activists hope that it will be drafted soon.    

Employees at SeaWorld say that Tilikum should not be released back into the wild for a couple reasons.   First, Tilikum spends most of his time surface-resting.   A wild orca spends almost his entire life swimming, and veterinarians worry he does not have the strength and muscle mass to keep up.   The second reason is that Tilikum does not have many viable teeth left.   Due to the dental health issues discussed above, he has lost most of his teeth.   He would not be able to properly hunt and eat in the wild with his lack of sharp viable teeth.   Without the daily teeth flushing, he would also be more prone to infection from food becoming stuck in the remnants of the teeth.   SeaWorld also states that Tilikum is insured for as much as $5 million and is a great asset to the captive breeding.   Over the years he has helped produce about thirteen captive born calves.   SeaWorld states that it would be against Tilikum’s health and safety to release him into the wild. [43]  

B. Lolita

As the oldest orca whale in captivity living in the smallest tank in the nation, Lolita has captured the public's heart leading to many protests and activist actions. Lolita's tank at Miami Seaquarium does not meet the government minimum standards, which some activists contend are already substandard. As stated above, CFR 3.104 says that the primary enclosure for an orca must have a minimum horizontal dimension of 48 feet in either direction with a straight line of travel in the middle. [44]   Lolita's tank measures 35 feet across from the front wall to the middle barrier that serves as the work island, and another 35 feet from the barrier to the back wall. USDA-APHIS states that adding the whole space together it meets the specifications.    At the deepest point in the tank, it is only 20 feet deep and 12 feet deep along the edges, while Lolita is 21 feet long. [45]

In 1995, the Humane Society of the United States filed a formal complaint against the Seaquarium about the size of the substandard tank.   APHIS did not respond to the complaint.   Since then APHIS has not taken any further action.   Since 1978, Miami Seaquarium has been promising a larger tank for Lolita, but yet it has yet to act. [46]

Activists are rallying to get Miami Seaquarium to retire Lolita. Some even petition for Lolita's release back into the wild. However, not everyone feels this way. The park's general manager, Andrew Hertz (son of park's owner Arthur Hertz) believes that Lolita is healthy and happy. She receives daily checkups and despite the criticism of her tank, he states that Lolita receives the best care of any orca in the world. An inspection from 2004 by the U.S. Dept of Agriculture states that "Lolita appears to be healthy and well-adjusted to her environment" despite a pool that "appears small." [47]

After nearly 4 decades in captivity, there are many obstacles to releasing an orca back into the wild:

  • She must be fully free of any bacteria, viruses, and parasites that could be transferred to another animal before she can be transported.
  • Then, if she can be moved, some question whether her body can adapt to the pollution of the Puget Sound which is high in PCP concentration.
  • They must make sure she is strong enough to hunt for fish and that once reunited with her family pod, that she is capable of keeping up with them.
  • There is also the issue of the stress of the coast-to-coast transport, obtaining government approvals, and ensuring that she will not approach ships thinking to be fed.

Despite these concerns, much information is known about Lolita's family pod, which is studied on a daily basis in the wild. Scientists at the Whale Center for Research in Washington State confirm that some of Lolita's family members are still alive that were alive at the time of her capture in 1970. They have devised a plan to retire, rehabilitate and return Lolita to the wild. Lolita still speaks in the tones of her family pod, and thus experts say that she is a prime candidate for release and are more positive in her successfully rejoining her family pod. However, people claim that Lolita's park owner refuses to entertain any ideas of her re-release for, what people claim, his purely economic reasons. [48] In order to swim as far as her family members in the wild, Lolita would have to swim the length of her tank 6,000 times.  



Advocates for maintaining marine mammals in captivity argue that they serve as ambassadors for the marine world.   Orcas in captivity provide the public with education and conservation of whales in general.   Programs and shows at marine parks help serve to educate the public about marine life, and without this firsthand experience, the public may be less involved with marine life. [49]      

People argue that having a few whales in captivity is helping to save the population of whales in the wild. Aquarium research combined with studies from the wild has improved scientists' understanding of the biology, ecology, and impacts of growing human populations and activities on the whales.   They use this knowledge to better understand the biological needs of the mammals and the impact that our human life has on their environments and life. Research such as hormone measurements of orcas in captivity have allowed scientists to discover that the gestation period is actually longer than previously believed and led the IWC to reduce Norway's allowable hunted whale quota by 52 whales a year. [50]

Births in captivity have minimized the need to capture whales from the wild for entertainment, and research purposes. [51] Others argue that captive breeding is the only hope for some endangered dolphins and porpoises by serving as a genetic reserve.



Activists claim that it is inhumane to keep such large intelligent animals in small tank in captivity. Even if the pools meet the standards set by the organizations and laws, this does not mean that the pool is a good environment for the animal. One whale expert states that "...building a tank the size of Rhode Island wouldn't be large enough for a six-ton male such as Tilikum, an animal capable of swimming 100 miles a day." [52] In captivity they have access to less than one ten-thousandth of 1% of the space available to them in their natural ocean environment. [53] The ocean is a complex environment to try to simulate in captivity.   The white concrete walls do little to simulate the vast ocean and stimulate the orca as it would be in the wild.   The blank walls also interfere with their sonar and echolocation capabilities. [54]

Killer whales are animals with tight-knit family bonds, spending their entire lives in the same pod.   Keeping them in captivity prevents them from being able to form these bonds, whether they are born into captivity or taken from their family pod in the wild.   If they are born in captivity, they are not able to be a part of a pod and form the social bond that comes with pod interaction.   Due to housing capabilities, most orcas do not live with more than a few other orcas, or may even be housed with other types of whales.   These are not adequate replacement for the social bonds of the pod.   If an orca is taken from their family pod in the wild, then all of its social ties have been broken and may cause the orca to become lonely or sad.  

Activists argue that there is no scientific evidence to support the claim by some exhibitors that environmental or conservation education to spectators is effective in changing people's behavior to benefit whales in the wild. Captive whales are not an appropriate comparison to their wild counterparts. They are in an artificial environment that requires them to adapt their behaviors. They are no longer in a family pod that would show the bonds and coordination each pod has and uses to successfully hunt for food. The lack of sufficient space for their optimal health often leads them to continually swimming in circles, a behavior not reportedly observed in the wild. Their diet is that of dead frozen fish and vitamin supplements, rather than the live fresh fish they would catch, or the more meat-based diet of sea lions, and other whales.

Captive breeding, which some argue helps to supply and conserve populations in the wild only tends to merely create a surplus of animals who may never be released into the wild, thus only using the animals to propagate the entertainment industry. [55] The animals natural feeding and foraging patterns are completely lost when they are taken from the wild, or removed from their mothers earlier than they would be in the wild. Other natural behaviors, such as dominance, mating, and maternal care are altered in captivity. [56]

Activists against the captivity of orca whales also argue that the nature of the whale's life in captivity causes high stress on the mammal and can lead to health problems.   Presence of stress-related conditions, such as ulcers and behaviors like pacing, self-mutilation and abnormal aggression within species groups frequently develops in predator animals that are denied the opportunity to hunt. [57] Significantly, orca whales in captivity have a higher mortality rate than those in the wild.  


The recent death of SeaWorld trainer, Dawn Brancheau, has brought to light a battle that has been going on for ages; the issue of whether a marine mammal, like the killer whale, should be kept in captivity and used for entertainment purposes. Activists have been fighting to move the animals to sanctuaries or to possibly release some back into the wild after rehabilitation for years before the recent tragedy.   Rehabilitation programs would help the whales to learn the skills they need to survive on their own in the wild.   Authorities of the marine parks claim that the captivity serves a legitimate learning experience, both scientifically and for increasing the public's awareness of how special the animals are.   Other people feel that the release of the whales may result in the tragic end that an orca named Keiko suffered, when, after being released, he died from pneumonia.

Critics argue that marine parks are not highly regulated communities, and the few regulations that do exist are not consistently upheld. The marine park environments have most certainly improved over the last 50 years or so, but they are a far cry from the natural environment these animals would otherwise have. Proposed laws that aim to prevent the entertainment use of orcas and other marine mammals offer the best hope for those opposed to continuing this nearly 150-year legacy of captivity.



[1] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 28 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

Naomi A. Rose, E.C.M. Parsons, & Richard Farinato, The Case Against Marine Mammals in Captivity 17 (Naomi A. Rose & Debra Firmani, 4th ed. 2009).

Id. at 18

[5] Id.

[6] Id.

[7] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 32 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

[8] Id . at 21

[9] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 34 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

[10] Id.

[11] Naomi A. Rose, E.C.M. Parsons, & Richard Farinato, The Case Against Marine Mammals in Captivity 23 (Naomi A. Rose & Debra Firmani, 4th ed. 2009).

[12] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 40 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

[13] Id.

[14] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 48 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

[15] Theorcaproject, The Hidden Cost of Captivity-Oral Health of Killer Whales Exposed (25 September 2010), http://theorcaproject.wordpress.com/2010/09/25/the-hidden-cost-of-captivity-oral-health-of-killer-whales-exposed/  

[16] Id.

[17] Id.

[21] Animal Welfare Act Facts, http://www.idausa.org/facts/awafacts.html .

[22] Animal Welfare Act, 7 U.S.C. §2134 (1966) .

[23] Id.

[24] Animal Welfare Act, 7 U.S.C. §2134 (1966) .

[27] Id.  

[28] Id.

[29] §3.104(b)(2) .  

[30]   §3.104(b) .  

[33] Id.

[34] Vanessa Williams, Captive Orcas ‘Dying to Entertain You’ The Full Story 29 (30 April 2001), http://www.wdcs.org/submissions_bin/orcareport.pdf .

[36] Inside the Mind of a ‘Killer Whale’ , Cosmic Log. (2 Feb 2010), http://cosmiclog.msnbc.msn.com/_news/2010/02/26/4349970-inside-the-mind-of-a-killer-whale .

[37] Id.

[38] Id.

[39] “SeaWorld Fined $75,000 for Whale Trainer’s Death.” CBS News. 23 Aug 2010, http://www.cbsnews.com/stories/2010/08/23/national/main6798111.shtml .  

[40] Id.

[41] Mike Lee, “Feds cite SeaWorld in trainer’s death” San Diego News . 23 Aug 2010.

[42] Edda Ness, Esq., MSW, “March 18- Rally Tilikum – Whale 4:30,” http://www.r8ny.com/node/152069 .

[43] “SeaWorld Called Best Place for Tilikum,” http://www.cbsnews.com/stories/2010/02/27/earlyshow/saturday/main6249874.shtml. (27 Feb 2010).

[45] “Lolita the Killer Whale at Miami Seaquarium,” http://www.freewebs.com/let_toki_go_free/lolitasstory.htm .

[46] Id.

[47] Jessica Bennett, “Free Lolita! A Whale Story.” Newsweek. 23 Jan 2008, http://www.newsweek.com/2008/01/22/free-lolita-a-whale-story.html .

[48] “A Whale’s Tale: Set Lolita Free,” WSPA, Feb 2, http://www.wspa-usa.org/pages/541_feb_02_a_whale_s_tale_set_lolita_free_.cfm .

[49] “Real Ideas on Captivity for marine mammals.” Jenna’s little “Marine” World, http://animaltrainer91.webs.com/trueideasoncaptivity.htm .

[50] Id.

[51] Id.

[53] “WSPA Condemns SeaWorld,” WSPA. 3 March 2010, http://www.wspa-international.org/latestnews/2010/seaworld.aspx .

[54] Id.

[55] Naomi A. Rose, E.C.M. Parsons, & Richard Farinato, The Case Against Marine Mammals in Captivity (Naomi A. Rose & Debra Firmani, 4th ed. 2009).

[56] Id.

[57] Id.



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