<I>Blackfish</I>

Tourism in Marine Environments, Vol. 13, No. 2–3, pp. 73–83 1544-273X/18 $60.00 + .00 Printed in the USA. All rights reserved. DOI: https://doi.org/10.3727/154427318X15225564602926 Copyright © 2018 Cognizant, LLC. E-ISSN 2169-0197 www.cognizantcommunication.com

THE BLACKFISH EFFECT: CORPORATE AND POLICY CHANGE IN THE FACE OF SHIFTING PUBLIC OPINION ON CAPTIVE CETACEANS

E. C. M. PARSONS* AND NAOMI A. ROSE†

*Department of Environmental Science & Policy, George Mason University, Fairfax, VA, USA †Animal Welfare Institute, Washington, DC, USA

In February 2010, a captive killer whale (Orcinus orca), or orca, killed his trainer at SeaWorld Florida. A cascade of events followed, including successful federal enforcement action against Sea- World for employee safety violations. In 2012 and 2015, nonfiction books about SeaWorld’s history with orcas were published; however, the 2013 documentary Blackfish has done the most to raise public awareness of captive orca welfare and trainer safety. It spawned a massive social media response, leading to the so-called “Blackfish Effect.” SeaWorld’s visitor numbers declined, business partners ended their relationships, and stock price plummeted. In 2012, Georgia Aquarium in Atlanta applied for a permit to import 18 wild-caught beluga whales from Russia; the permit was denied in 2013, the first time a public display permit had ever been denied in the history of the US Marine Mammal Protection Act. In 2014 and 2016, the California legislature considered bills phas- ing out captive orca exhibits in the state; the 2016 bill passed and became law in January 2017. In November 2015, a similar bill was introduced (and reintroduced in March 2017) in the US House of Representatives. In March 2016 SeaWorld announced it would end its orca breeding program company-wide and in January 2018 the Vancouver Aquarium announced it would no longer display cetaceans. Shifts in public perception of captive cetacean display strongly suggest policy makers should reconsider the legislative and regulatory status quo.

Key words: Killer whale; Orcinus orca; SeaWorld; Blackfish; Legislation; Captivity; Public display

Introduction The intelligence that allows these species to be trained to perform in fantastic entertainment spec- For decades, controversy has attended the pub- tacles leads to the obvious ethical question of lic display of captive cetaceans, particularly killer whether they should be held in captivity in the first whales (also known as orcas), Orcinus orca (see instance (White, 2000). However, in the past few e.g., Leiren-Young, 2016; Ventre & Jett, 2015). years this controversy has intensified, after trainers

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were killed in 2009 and 2010 by orcas going The US Occupational Safety and Health Admin- “off behavior” (refusing trainer commands) (see istration (OSHA) cited SeaWorld for the Florida Parsons, 2012, and below). incident in August 2010 (Grove, 2010; Parsons, Despite this perpetual controversy, visiting facili- 2012). SeaWorld challenged the citation, with ties with performing cetaceans remained universally hearings held in September and November 2011. popular as a tourism choice until recently, with the During the hearings, SeaWorld logbooks presented release of the documentary film Blackfish in 2013. as exhibits (dating back to 1988) revealed almost The idea that film can lead to shifts in societal 100 incidents of dangerous orca behavior,3 result- perceptions about appropriate or desirable tour- ing in a dozen serious injuries4 (Parsons, 2012). In ism choices is not new. However, generally these subsequent cross-examination, it became apparent influences are perceived as promotional market- these were likely an underestimate of the number ing or advertising (Hudson & Ritchie, 2006). A of serious incidents, as several verified reports of feature film or documentary may persuade the dangerous behavior had not been entered into the viewing public that the topic portrayed would be logbooks (Black, 2011; Howard-Fishburne, 2011; a desirable feature of a future tourism experience— Tompkins, 2011). A Department of Labor adminis- for example, the feature film Free Willy may have trative law judge upheld the citation in 2012.5 Sea- led to a boom in the whale-watching industry World appealed in 2013; the appeals court denied (Wearing, Buchmann, & Jobberns, 2011). How- SeaWorld’s request for a review in 20146 (see ever, it is less common for film to influence people summary of the original case in Parsons, 2012). to turn away from a previously popular tourism Following Brancheau’s death, two nonfiction choice. Blackfish is a unique example of the lat- books were published about SeaWorld’s history ter and has led to a series of notable societal, cor- with orcas and the human deaths and injuries noted porate, and policy changes, in several countries, above: Death at SeaWorld: Shamu and the Dark which are summarized and discussed below. Side of Killer Whales in Captivity by David Kirby (2012) and Beneath the Surface: Killer Whales, SeaWorld, and the Truth Beyond Blackfish by Background John Hargrove and Howard Chua-Eoan (2015). In February 2010, Tilikum,1 a 12,000 lb. captive Both gained considerable media attention, includ- male orca, killed his trainer, Dawn Brancheau, at ing author interviews on Anderson Cooper and SeaWorld Florida; this was the third human fatality The Daily Show.7 However, Blackfish has argu- with which this specific whale had been associated ably done the most to raise public awareness of (Parsons, 2012) (see Table 1). Another SeaWorld captive orca welfare and trainer safety. It spawned whale, unrelated to Tilikum and held at a Spanish a massive social media response related to cap- facility, had killed his trainer only 9 weeks earlier2 tive cetaceans, leading to the so-called “Blackfish (Parsons, 2012) (Table 1). Effect” (see e.g., Chattoo, 2016).

Table 1 Human Fatalities From Captive Killer Whale (Orcinus orca) Attacks

Date Victim Location Whale(s) Involved Injuries and/or Cause of Death

Feb. 24, 2010 Dawn Brancheau SeaWorld, Orlando, Tilikum Blunt force trauma: Broken jaw, spine, ribs, FL, USA dislocated elbow/knee, severed arm, skull exposed (drowning also indicated, but water in sinuses was minimal) Dec. 24, 2009 Alexis Martínez Loro Parque, Canary Keto Blunt force trauma: Multiple compression Islands fractures, lacerated internal organs July 6, 1999 Daniel Dukes SeaWorld, Orlando, Tilikum Drowning: Body was covered in multiple FL, USA pre- and postmortem bruises and abrasions Feb. 21, 1991 Keltie Byrne Sealand of the Pacific, Tilikum Drowning Victoria, British Haida 2 Columbia, Canada Nootka 4

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This review’s objective is to describe the impact, 2012). The film featured interviews with a selec- on SeaWorld in particular (as the focus of Black- tion of cetacean scientists, former orca trainers, and fish) and captive cetacean display generally, of the one person who had been involved historically in “Blackfish Effect.” We offer evidence that it is a capturing orcas in the US. The commentary from genuine social phenomenon, leading to substan- former trainers (at least eight were featured) was tive corporate, legislative, and regulatory changes the most novel aspect of the film; advocacy oppos- affecting the display of captive cetaceans. ing the display of captive orcas is as old as the practice of displaying them (Leiren-Young, 2016), but the authors of this advocacy were primarily non- Blackfish profit organizations and their representatives prior Blackfish was directed by Gabriela Cowperth to 2010 (Kirby, 2012). The perspective of trainers waite. Cowperthwaite’s previous directorial experi- (current or former) had been noticeably absent. ence was a documentary on lacrosse (Internet Movie These former trainers spoke on camera, several for Database [IMDb], 2016a) and she was not involved the first time, of their behind-the-scenes experi- in any animal rights activism prior to making Black- ences with captive orcas. Contrary to the promo- fish. Blackfish cost $76,000 to make and debuted tional rhetoric of spokespeople for public display at the Sundance Film Festival in January 2013. Its facilities in the past, several recounted incidents total gross revenue was more than $2 million at the where they felt they had been misinformed; their US box office for its distributor, Magnolia Pictures safety had been threatened; the welfare of animals (The Numbers, 2013). The film was nominated for had suffered (in their view) through decisions made numerous awards (IMDb, 2016b), including from by management; and the public had been misled the British Academy of Film and Television Arts. about the animals’ welfare. The new film division of the Cable News Network (CNN) acquired the television rights to An Evidence-Based Approach Blackfish at Sundance. CNN premiered the film on October 24, 2013, reprising it at least 25 times Several points made in the film were based on in the following weeks. For the initial airing, sci- information from the peer-reviewed scientific lit- entists and experts, as well as former orca train- erature, consultation with leading cetacean experts ers featured in the film and the filmmakers, were and lawyers, eyewitness statements, and court docu- recruited to simultaneously provide facts and sup- mentation and police reports and/or autopsy results porting information via Twitter, to participate in a (Parsons, 2012). The filmmakers invited represen- Crossfire segment (a long-running current affairs tatives of SeaWorld to be interviewed for the docu- debate TV show on CNN) with a representative of mentary, but they declined to participate (as noted the public display community,8 and to write blogs in the film). Nevertheless, company representatives (Rose, 2013). The Twitter hashtags #Blackfish and characterized Blackfish as factually incorrect.9 The #Blackfishthemovie “trended” during the initial filmmakers subsequently provided a rebuttal to the showing, with nearly 70,000 documentary-related list of these criticisms (Renninger, 2013). Tweets seen by 7.3 million people (Rogers, 2013; An example of these criticisms was that the Wright et al., 2015). In 2013 alone, CNN reported film mispresented orca life expectancies. However, that 21 million viewers watched the documentary Blackfish accurately noted that male orcas in north- (CNN, 2014). Subsequently Blackfish was acquired east Pacific populations (for which life history data by the Netflix “on demand” video service. are most complete) have a maximum estimated life The documentary described the deaths and inju- span of 60–70 years (Ford, 2009) and female orcas ries of orca trainers and others, in particular the have a maximum estimated life span of 80–90 deaths of SeaWorld trainer Brancheau, part-time (Ford, 2009). In contrast, captive orcas of either Sealand trainer Keltie Byrne, and Loro Parque trainer sex rarely live longer than 30 years, with many Alexis Martinez (Parsons, 2012). It reported on the dying in their teens and 20s (Jett & Ventre, 2015; regulatory and litigation responses to Brancheau’s Robeck, Willis, Scarpuzzi, & O’Brien, 2015; Small death and the subsequent OSHA citation (Parsons, & Demaster, 1995).

Mortality rates of orcas in marine theme parks SeaWorld also saw a decrease in attendance are a matter of record, especially in the US, where at its parks, with 1 million fewer people visiting births, transfers, and deaths of captive marine mam- SeaWorld in 2014 over the previous year (“Sea mals must be recorded in a database mandated by World Entertainment, Inc. Reports,” 2015). The the US Marine Mammal Protection Act [16 USC § company also saw its stock drop; share prices 1374 (c) (10)]. Small and DeMaster (1995) reported decreased 45% from a high in mid-2013 to mid- an annual mortality rate for captive orcas that was, 2014, including a 1-day plummet of 33% on at that time, 2.5 times higher than in the northeast August 13, 2014, when the company released its Pacific populations. A recent peer-reviewed study second quarter report (Solomon, 2014). In all, using different methodologies—the Kaplan-Meier during 2014, SeaWorld lost more than $80 mil- and Cox proportional hazard models—noted that lion in revenue (a 6% decrease), according to its captive orca survival rates had improved, but annual earnings report (“SeaWorld Entertainment, that captive orca “survival to age milestones [is] Inc. Reports,” 2015). This decline in revenue and poor when compared to wild killer whales” (Jett visitor numbers has continued (Russon, 2017a, & Ventre, 2015, p. 1362). Another recent article 2017b), with the company reporting 353,000 fewer (Robeck et al., 2015) also noted survivorship visitors in the first half of 2017 when compared improvement, but found current SeaWorld orca to the beginning of 2016 (Russon, 2017a). The survival rates are now similar to those in the north- company had assumed negative publicity from east Pacific, where populations have subsequently Blackfish would recede and visitor numbers and been designated as endangered and threatened.10 revenue would rebound, but these did not happen (Russon, 2017a). In August 2015, the fourth in a series of class- The Blackfish Effect action lawsuits11 was filed, with evidence of what There was a high level of interest in the docu- “attorneys allege[d] to be the misrepresented and mentary on social media (Wright et al., 2015). Tra- undisclosed truth about the conditions and treat- ditional media also showed considerable interest ment of SeaWorld’s captive orcas” (MarketWatch, in the topics it raised, promptly noting incidents 2015). A shareholders’ lawsuit12 was also launched, involving captive cetaceans, such as deaths, import with the plaintiffs contending that SeaWorld had attempts, or negative human–cetacean interactions withheld the financial impact of Blackfish from (e.g., Pedicini, 2015; Wang, 2015). These tradi- shareholders. E-mails released during the discov- tional media pieces seemed to represent the views ery phase of the latter case revealed that executives of both sides of the captivity debate more equitably were indeed secretly tracking revenue lost because and to be published more often than before Black- of the documentary’s impact (Weisberg & Russon, fish (N. Rose, personal observation). 2017). The withholding of information about the financial impacts of Blackfish has led to paral- lel criminal investigations into SeaWorld’s finan- Economic Impacts on the Company cial disclosures by the US Department of Justice Within a year of Blackfish’s release, longtime cor- and the US Securities and Exchange Commission porate partners cancelled their arrangements with (Swenson, 2017). SeaWorld. For example, Southwest Airlines termi- nated its 26-year partnership with SeaWorld (Kumar, Public Display Import Permit Denial 2014). Two American football teams, the Miami Dolphins and the Seattle Seahawks, ended long- In 2012, Georgia Aquarium applied for a Marine standing associations (Joseph, 2015; Koerner, 2014). Mammal Protection Act (MMPA) permit to import Several well-known musical acts also cancelled 18 belugas for the purpose of public display.13 The performances at SeaWorld parks (Duke, 2014). In belugas had been captured in the Sea of Okhotsk, December 2014, SeaWorld’s Chief Executive Offi- Russia. This was the first MMPA request to import cer (CEO) Jim Atchison announced his resignation wild-caught cetaceans in 20 years. During the and was replaced by Joel Manby in April 2015. public comment period for the permit application,

the National Marine Fisheries Service received facility for display; and the maximum number of approximately 9,000 comments, most opposing whales that could be held was 15 (4 more than the the permit. The agency denied the permit based on current numbers then, to allow for the possibility substantive legal and scientific grounds in 2013; of animals held for rescue and rehabilitation) (Cali- however, it is arguable that the political climate fornia Coastal Commission, 2015). SeaWorld sued created by the Blackfish Effect influenced the deci- the CCC over these conditions, as the company sion, making the likely legal challenge the permit believed the CCC had overstepped its authority applicant would file of less concern to the agency. under the California Coastal Act (Martin, 2015). Indeed, this was the first time the agency had denied The public relations pressures from the Blue a public display permit in the 40-year history of the World situation, coupled with a likely reintroduc MMPA—permits were always issued in the past, tion of the Bloom bill, were probable factors in some of dubious legality, as lawsuits filed by oppo- the decision by SeaWorld to engage with The nents of captive cetacean display (successfully and Humane Society of the United States (HSUS) in unsuccessfully) attest.14 Georgia Aquarium did a series of discussions, which began sometime in challenge the denial in court, but it was upheld and 2015 and culminated, in March 2016, with the sud- the aquarium chose not to appeal.15 den announcement that SeaWorld would volun- tarily end its orca breeding program (Allen, 2016). This corporate policy change made opposing AB Legislative and Regulatory Initiatives16 2140/2305 moot. SeaWorld withdrew its applica- In February 2014, Assembly Member Richard tion for a CCC permit (and its lawsuit against the Bloom introduced California Assembly Bill (AB) CCC) soon after (Weisberg, 2016). 2140. This bill would have made it illegal to “hold Bills similar to AB 2140/2305 were introduced in captivity, or use, a wild-caught or captive-bred in other states, although they did not progress. orca for performance or entertainment purposes.”17 In New York, Senate Bill 6613 was introduced, The bill was heard by the relevant committee in which would prohibit the keeping of orcas in April 2014, but there was no vote and no further facilities in New York State.19 In the state of Wash- action was taken in that legislative session. ington, Senate Bill 5666-2015-16 and House Bill Bloom reintroduced the bill as AB 2305 in 2115-2015-16 would prohibit the keeping of any March 2016. The legislation eventually passed both cetacean.20,21 A federal bill, the Orca Responsi- houses of the state legislature as part of a budget bility and Care Advancement (ORCA) Act, was trailer bill.18 The “Orca Protection Act” was signed introduced in November 2015 by Representatives by California’s governor in September 2016 and Adam Schiff (D-California) and Jared Huffman became state law in January 2017. SeaWorld vigor- (D-California), along with several cosponsors.22 ously opposed the bill in 2014, but adopted a neu- The bill did not progress, but was reintroduced tral position in 2016 (this neutrality may have been by Schiff in March 2017.23 This bill would result instrumental in the bill’s passage). The company’s in a phase out of captive orca display in facilities position on this legislation likely changed due to a throughout the US. chain of events that followed from its “Blue World” In Canada, the Vancouver Park Board voted to initiative in 2015. pass a bylaw in March 2017 that would end the In April 2015, SeaWorld San Diego applied for public display of cetaceans at Vancouver Aquar- a permit from the California Coastal Commission ium (Slattery, 2017). This bylaw was ruled invalid (CCC) to build “Blue World,” a significant expan- due to licensing violations by the British Colum- sion of its existing Shamu Stadium (California bia Supreme Court in February 2018, but a month Coastal Commission, 2015). The CCC held a hear- earlier the Vancouver Aquarium announced vol- ing and vote on the permit application on October 8, untarily that it would no longer display cetaceans 2015. The vote was unanimous to issue the permit, after the last one, a Pacific white-sided dolphin, but with the following conditions: SeaWorld would currently displayed dies (Eagland, 2018). The have to end its orca breeding program in San Diego; Aquarium noted that, although it would not with- no orcas could be transferred into or out of the draw its lawsuit, whatever the court eventually

ruled would not affect this decision. The Canadian research projects through the National Fish and Parliament in Ottawa is considering bill S-203, Wildlife Federation (SeaWorld, 2017c). SeaWorld which would prohibit the display of cetaceans.24 had been criticized for its lack of funding towards Mexico is also considering legislation that would free-ranging cetacean conservation and research, limit reproduction of cetaceans; the country already other than its active participation in stranding net- prohibits import, export, and capture from the wild works and the rehabilitation of stranded marine (“Mexico’s Lower House,” 2017). Mexico City has mammals.27 In particular, it had been criticized for declared itself to be dolphinarium-free (meaning its lack of funding directed toward the protection of the one dolphin facility within the city limits will endangered populations of free-ranging orcas (e.g., close) (“Mexico City Is First,” 2017), as has the Hodgins, 2014), making this a major shift for the city of Barcelona, which will close its zoo’s dol- company. phin exhibit by 2019 (“Barcelona Trasladará Los Within 2 days of this announcement, SeaWorld’s Delfines,” 2016). stock went up by 9.5% in 1 day (Fry, 2016). Nev- ertheless, SeaWorld has continued to suffer finan- cially, as noted above, reporting a $30 million Satire decline in revenue in 2016 when compared to 2015, Keeping orcas in captivity eventually became and 471,000 fewer visitors over the same time frame the target of satirists, another manifestation of the (SeaWorld, 2017d). During the first 9 months of Blackfish Effect. SeaWorld had already faced con- 2017, the company reported a decline in revenue of siderable lampooning from, for example, The Onion $78.9 million, compared to the same period in 2016, (2013a, 2013b), the popular comedy/satire maga- and there were approximately 1.1 million fewer zine. However, after Blackfish’s debut on CNN, visitors in the first 9 months of 2017 compared this escalated (The Onion, 2015a, 2015b, 2015c, to the first 9 months of 2016 (SeaWorld, 2017e). 2015d, 2017). Political comedian Stephen Colbert SeaWorld has gone from a thriving company to also joked about SeaWorld on his eponymous show one in decline. Its valuation has been cut by almost The Colbert Report, and the controversy was also half (top share price was approximately $39 in featured on The Daily Show with Jon Stewart. The 2013; it was approximately $21.50 in July 2018). lampooning did not abate, and more recent exam- SeaWorld insists its orcas will remain at its parks,28 ples include The Daily Show with Trevor Noah25 but it may have no choice but to consider retiring and Last Week Tonight With John Oliver.26 When them to seaside sanctuaries in the near future. a company or practice becomes a widespread, per- sistent object of ridicule in popular culture, par- Seaside Sanctuaries ticularly through online dissemination, its image becomes shaped by it, compounding financial and Sea pen facilities housing captive cetaceans other impacts (Veil, Petrun, & Roberts, 2012). for tourism purposes exist globally.29 These facilities are typically sited and designed to maximize tourism accessibility and are often similar in size to SeaWorld’s Ultimate Response to Blackfish concrete-tank facilities (personal observation). Sea- SeaWorld’s new policy of no orca breeding (Sea- side sanctuaries would apply engineering principles World, 2017a) was company-wide and affected the pioneered in these tourism facilities and elements 20-plus whales in its three US parks. SeaWorld also related to animal care and public outreach (e.g., pledged that it would change the orca shows and veterinary and employee support facilities, visitor facilities to provide “more natural looking habitats, and education centers) would be similar, but they and with a focus on the whales’ natural behaviors” would eliminate the need to consider tourism expe- and “with an added emphasis on education and rience when determining location and husbandry conservation” (SeaWorld, 2017a). Moreover, Sea- practices. They would also not breed the animals, World announced that it would be dedicating $50 to avoid producing more animals needing captive million in funding to marine conservation proj- care. Seaside sanctuaries would be sited where con- ects (SeaWorld, 2017b) and $1.5 million to in situ ditions are suitable for the species to be held, would

have limited public access, and would have a far general public no longer views keeping cetaceans larger surface area and be far deeper (thus, be far in captivity for tourism purposes as acceptable35 larger in volume) than any existing sea pen facility, (Naylor & Parsons, 2018). given that visibility of the animals to tourists is not a priority. The goal of a wildlife sanctuary (for any Biographical Notes species, marine or terrestrial) is to provide the resi- Chris Parsons has been involved in whale and dolphin dent animals with conditions as close to natural as research for over two decades and has been involved in proj- 30 possible. No seaside sanctuaries currently exist, ects on every continent. Dr. Parsons has been an Associate but several are in development.31 Professor at George Mason University and was the Director For many captive wildlife species rescued from and developer of their undergraduate program in environ- circumstances deemed unsuitable by authorities mental science. He is a member of the Scientific Committee of the International Whaling Commission (IWC), has been or experts (e.g., circus animals, wildlife in trade), involved in organizing four of the International Marine Con- being released into the wild is not an option, due servation Congresses (IMCC) (the world’s largest academic to captive birth, long tenure in captivity, permanent marine conservation conference), and two of the Interna- disability, or removal from the wild at an early age tional Congresses for Conservation Biology. He was a Gov- before independence (see e.g., Kolter & van Dijk, ernor of the Society for Conservation Biology (SCB) for nearly a decade and also served two terms as the president 2005). As a common alternative to euthanasia, of the SCB Marine Section. He was also on the Board of wildlife sanctuaries have been established for such Directors of the American Cetacean Society and is currently unreleasable individuals of several terrestrial spe- on the Boards of the Society for Marine Mammalogy and the cies (e.g., Wildlife Rescue & Rehabilitation, 2015). SCB Conservation Marketing Working Group. In addition, Many—and indeed, most—captive cetaceans are Dr. Parsons has published over 150 scientific articles and book chapters and has written a textbook on marine mam- equally unsuitable for release, making their place- mal biology and conservation and coedited a book on marine ment in sanctuaries a logical alternative but cur- wildlife conflict resolution. rently impossible due to the lack of such facilities. When seaside sanctuaries become operational, the residents would still be in captivity, but their condi- Naomi Rose is the marine mammal scientist for the Animal Welfare Institute in Washington, DC. She works addressing tions would be closer to natural than in presently problems associated with cetacean capture, trade, and cap- existing tourism facilities. tivity, both in the US and abroad. She has been a member of the International Whaling Commission (IWC) Scientific Committee since 2000, where she participates in the sub- A Paradigm Shift? committees on environmental concerns and whale watching. She has authored or coauthored over 35 scientific articles A societal paradigm shift appears to be happen- and authored numerous articles for animal protection publi- ing with regard to captive cetaceans. In June 2016, cations, as well as chapters in several books. She guest lec- the National Aquarium in Baltimore announced tures for three universities and speaks at and participates in that it would close its dolphin exhibit and build a sea- various conferences, workshops, meetings, and task forces side sanctuary (potentially in Florida or the Carib- at the international, national, and state level. She has testified before the US Congress four times and at several state bean), where it would “retire” its eight dolphins by legislative and federal regulatory hearings. She received a 32 2020 (Racanelli, 2016). In May 2016, Munchkin Ph.D. in biology from the University of California at Santa Inc. (a baby product company) announced a pub- Cruz in 1992, where her dissertation examined the social lic interest campaign promoting the end of captive dynamics of wild orcas. She has worked in the marine mam- orca display, with the CEO pledging $1 million to mal advocacy field for over 25 years. a retirement “sanctuary” for captive orcas.33 Global tourism companies such as Virgin Holidays and Notes TripAdvisor have decided to alter or restrict their 1Tilikum died on 6 January 2017, almost 7 years after partnerships with captive cetacean suppliers.34 killing Dawn Brancheau (Pedicini, 2017). He was approxi- For decades, the public display of cetaceans mately 36 years of age. 2In contrast, there have been no substantiated reports of has been accepted as a tool for education, con- free-ranging orcas ever killing a human being (see e.g., Hoyt, servation, and research, but the Blackfish Effect 1984). This, as well as the infrequency of reported human has turned the tide: A growing proportion of the injuries inflicted by free-ranging orcas (see footnote 4),

may be due to the general lack of close contact between 14See, for example, Jones v. Gordon, 792 F.2d 821 (9th human swimmers and free-ranging orcas (with some excep- Cir. 1986) (enjoining SeaWorld from collecting killer whales tions, such as in Norway, where tourists, to date without under a permit that had been issued without the preparation injurious incident, swim with free-ranging orcas—see of an environmental impact statement); Animal Protection http://www.whaleswim.com/swim-with-orca-whales-in- Institute of America v. Mosbacher, 799 F. Supp. 173 (D.D.C. norway/), compared to the routine close contact (particu- 1992) (upholding the issuance of import permits to Shedd larly in water, known as “waterwork”) between trainers Aquarium for cetaceans from Japan and Canada). and their captive charges prior to Dawn Brancheau’s death. 15Georgia Aquarium, Inc. v. Pritzker, 135 F. Supp. 3d 1280 However, the hypothesis that orcas are influenced to behave (D.C., ND Georgia 2015). differently in captivity cannot be dismissed (see e.g., Jett, 16One of the authors (Rose) was materially involved in Visser, Ventre, Waltz, & Loch, 2017, which describes ste- several of these legislative and regulatory initiatives in her reotypies in captive orcas that result in commonly observed capacity as an employee of a nonprofit animal charity. She injury to the animals’ teeth, injury not routinely observed did not initiate any of them, but was directly consulted by in the wild). legislators and regulators, assisted in drafting language, and 3A nonexhaustive list of examples of such behaviors testified at hearings. include lunging out of the water at trainers standing on the 17The original language of AB 2140 can be found at http:// deck; mouthing (no actual contact or injury from teeth) or leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_ raking (dragging teeth across skin, causing minor to serious id=201320140AB2140 bleeding) trainer extremities; bumping into trainers in the 18The final language of the bill that the governor of Cali- water with various body parts (lightly to powerfully enough fornia signed can be found at http://leginfo.legislature.ca.gov/ to break bones); and indeed any behavior not directed by the faces/billNavClient.xhtml?bill_id=201520160AB1453 trainer that required the trainer, on deck or in the water, to 19For the text of the bill, see https://www.nysenate.gov/ move quickly in an attempt (successful or unsuccessful) to legislation/bills/2013/s6613/amendment/original avoid contact. 20See http://app.leg.wa.gov/billsummary?billNumber= 4There have been less than a handful of reports of minor 5666&Year=2015 human injuries in the wild (Associated Press, 1996, 2005). 21The bill, subsequently restricted only to orcas, was rein- 5SeaWorld of Florida, LLC, 24 BNA OSHC 1303 (No. troduced in 2018 as Senate Bill 6099, http://app.leg.wa.gov/ 12–1375, 2012) (ALJ) billsummary?BillNumber=6099&Year=2017, and passed 6SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202 (D.C. out of committee in February. Cir. 2014) 22For the text of the bill, see https://www.congress.gov/ 7See http://ac360.blogs.cnn.com/2012/06/01/debate-over- bill/114th-congress/housebill/4019/text killer-whales-in-seaworld/ for Anderson Cooper and http:// 23See https://www.congress.gov/bill/115th-congress/house- www.cc.com/video-clips/lx3hyu/the-daily-show-with-jon- bill/1584 stewart-exclusive---john-hargrove-extended-interview for the 24See https://openparliament.ca/bills/42-1/S-203/ Daily Show. 25See http://www.cc.com/video-clips/ebp0j3/the-daily- 8For transcripts of the debate, see http://transcripts.cnn. show-with-trevor-noah-it-s-timeto-free-jeb-bush com/TRANSCRIPTS/1310/24/cfr.01.html and for clips, see 26See https://www.youtube.com/watch?v=Tloss7UKUaw https://www.youtube.com/watch?v=9MbgLBoPGjA &feature=youtu.be and https://www.youtube.com/watch?v= 9See http://da15bdaf715461308003-0c725c907c2d63706 XEVlyP4_11M&feature=youtu.be&t=6m39s 8751776aeee5fbf.r7.cf1.rackcdn.com/adf36e5c35b842f5ae 27See http://www.nmfs.noaa.gov/pr/health/report.htm 4e2322841e8933_4-4-14-updated-final-of-blacklist-list-of- 28See https://sea worldcares.com/2016/03/Why-Sea-Cages- inaccuracies-and-misleading-points.pdf Are-Dangerous/ 10See http://www.westcoast.fisheries.noaa.gov/protected_ 29See, e.g., http://www.ammpa.org/ourmembers.html species/marine_mammals/killer_whale/esa_status.html and 30See, e.g., http://www.whalesanctuaryproject.org http://www.dfo-mpo.gc.ca/species-especes/profiles-profils/ 31See https://awionline.org/sites/default/files/uploads/docu killerWhaleNorth-PAC-NE-epaulardnord-eng.html ments/ML-Rose-Seaside-Sanctuaries-DFE.pdf 11See Anderson v. SeaWorld Parks and Entertainment, 32Now seven dolphins, as one dolphin has subsequently Inc., No. 15-cv-02172-JSW, 2016 WL 4076097, n. 1 (N.D. died; see http://baltimore.cbslocal.com/2017/02/28/nani- Cal. Aug. 1, 2016), which states “[t]he other three cases were national-aquariums-eldest-dolphin-dies-at-44/ consolidated and were pending in the United States District 33See http://www.whalesanctuaryproject.org Court for the Southern District of California as Hall v. Sea- 34See https://www.virginholidays.co.uk/cetaceans and http:// World Entertainment, Inc., No. 3:15-CV-660-CAB-RBB ir.tripadvisor.com/news-releases/news-release-details/trip (the ‘Hall litigation’).” The Hall case was dismissed in May advisor-announcescommitment-improve-wildlife-welfare 2016; an appeal was filed and is pending. 35See, for example, poll results at https://awionline.org/sites/ 12Baker v. SeaWorld Entertainment, Inc., No. 3:14-cv- default/files/press-release/ML-AWI-WDC-OrcaPoll-2014. 02129-MMA-AGS (S.D. Cal., filed Sept. 9, 2014). pdf (orcas); https://awionline.org/sites/default/files/press- 13See http://www.nmfs.noaa.gov/pr/permits/georgia_aqua release/AWI-ML-Lake-Research-Public-Memo-Dolphinaris- rium_belugas.htm Scottsdale-103116.pdf (dolphin swim-with attractions).

References from https://www.osha.gov/dep/citations/seaworld-cita tion-notification-of-penalty.pdf Allen, G. (2016, March 17). SeaWorld agrees to end cap- Hargrove, J., & Chua-Eoan, H. (2015). Beneath the surface: tive breeding of killer whales. NPR WAMU. Retrieved Killer whales, SeaWorld, and the truth beyond Blackfish. from http://www.npr.org/sections/thetwo-way/2016/03/ New York, NY: St. Martin’s Press. 17/470720804/seaworld-agrees-to-end-captive-breed Hodgins, N. (2014). SeaWorld as a conservation donor? ing-of-killer-whales Whale and Dolphin Conservation, 12. Retrieved from Associated Press. (1996, January 17). Keiko reminds man http://us.whales.org/blog/nicolahodgins/2014/05/sea of a whale attack. Lodhi News Sentinel, p. 5. Retrieved world-conservation-donor from http://news.google.com/newspapers?nid=2245& Howard-Fishburne, T. (2011). Exchange between Tremelle dat=19960117&id=GIo1AAAAIBAJ&sjid=QiEGAAA Howard-Fishburne, OSHA attorney, and Shana Groves, AIBAJ&pg=3872,1646286 trainer at SeaWorld Florida, in Secretary of Labor v. Sea- Associated Press. (2005, August 18). Boy survives bump World of Florida LLC (transcript), September 22, 2011. from killer whale. The Seattle Times. Retrieved from Retrieved from https://www.scribd.com/doc/247774354/ http://www.seattletimes.com/seattle-news/boy-survives- OSHA-v-SeaWorld-Trial-Transcript bump-from-killer-whale/ Hoyt E. (1984). Orca: The whale called killer. New York, Barcelona trasladará los delfines del zoo y no construirá un NY: E. P. Dutton. nuevo delfinario. (2016, December 22). La Vanguardia. Hudson, S., & Ritchie, J. R. B. (2006). Promoting desti- Retrieved from http://www.lavanguardia.com/local/barce nations via film tourism: An empirical identification lona/20161222/412810995211/barcelona-delfines-zoo- of supporting marketing initiatives. Journal of Travel delfinario.html Research, 44, 387–396. Black, J. (2011). Question from John Black, OSHA attor- Internet Movie Database. (2016a). Gabriela Cowperth- ney, in Secretary of Labor v. SeaWorld of Florida LLC waite. Retrieved from http://www.imdb.com/name/nm1 (transcript), September 21, 2011. Retrieved from https:// 363250/ www.scribd.com/doc/247774354/OSHA-v-SeaWorld- Internet Movie Database. (2016b). Blackfish (2013) awards. Trial-Transcript Retrieved from http://www.imdb.com/title/tt2545118/ California Coastal Commission. (2015). Staff report: Regu- awards?ref_=tt_awd lar calendar. Application No.: 6-15-0424. Retrieved from Jett, J., & Ventre, J. (2015). Captive killer whale (Orcinus orca) https://documents.coastal.ca.gov/reports/2015/10/ survival. Marine Mammal Science, 31(4), 1362–1377. Th14a-10-2015.pdf Jett, J., Visser, I. N., Ventre, J., Waltz, J., & Loch, C. (2017). Chattoo, C. B. (2016, March 3). Anatomy of the “Blackfish Tooth damage in captive orcas (Orcinus orca). Archives Effect.” Huffington Post. Retrieved from http://www. of Oral Biology, 84, 151–160. huffingtonpost.com/caty-borum-chattoo/anatomy-of- Joseph, C. (2015, January 28). Miami dolphins sever business the-blackfish-_b_9511932.html partnership with SeaWorld. Broward Palm Beach New CNN. (2014). CNN moves past MSNBC to finish 2013 as Times. Retrieved from http://www.browardpalmbeach. #2 rated cable news network. Retrieved from http:// com/news/miami-dolphins-sever-business-partnership- cnnpressroom.blogs.cnn.com/2014/01/02/cnn-moves- with-seaworld-6452387 past-msnbc-to-finish-2013-as-2-rated-cable-news- Kirby, D. (2012). Death at SeaWorld: Shamu and the dark network/ side of killer whales in captivity. New York, NY: St Mar- Duke, A. (2014, January 16). Pat Benatar, Beach Boys tin’s Press. join “Blackfish” cancellation list. CNN Entertainment. Koerner, A. (2014, September 4). Seahawks fans cancel Retrieved from http://www.cnn.com/2014/01/16/showbiz/ SeaWorld event due to public outcry. Ecorazzi. Retrieved blackfish-busch-gardens-cancellations/ from http://www.ecorazzi.com/2014/09/04/seahawks-fans- Eagland, N. (2018, February 9). B.C. court strikes down cancel-seaworld-event-due-to-public-outcry/ park board’s cetacean ban at Vancouver Aquarium. Van- Kolter, L., & van Dijk, J. (Eds.). (2005). Rehabilitation couver Sun. Retrieved from http://vancouversun.com/ and release of bears. Köln, Germany: Köln Zoological news/local-news/b-c-court-strikes-down-vancouver- Gardens. park-boards-cetacean-ban Kumar, S. V. (2014, July 31). Southwest Air, SeaWorld end Ford, J. K. B. (2009). “Killer whales.” In W. F. Perrin, B. partnership. Wall Street Journal. Retrieved from https:// Wursig, & J. G. M. Thewissen (Eds.), Encyclopedia of www.wsj.com/articles/southwest-air-seaworld-end- marine mammals (pp. 669–676). New York, NY: Aca- partnership-1406851911 demic Press. Leiren-Young, M. (2016). The killer whale who changed the Fry, E. (2016, September 14). Why SeaWorld’s stock could world. Vancouver, British Columbia and Berkeley, CA: stop sinking. Fortune. Retrieved from http://fortune. David Suzuki Institute and Greystone Books. com/2016/09/14/seaworld-stock/ MarketWatch. (2015). Hagens Berman files consolidated Grove, L. L. (2010). Citation and notification of penalty, complaint against SeaWorld. Retrieved from http://www. OSHA, USDL, Inspection No. 314336850, August 23, marketwatch.com/story/hagens-berman-files-consolida 2010. Tampa, FL: US Department of Labor. Retrieved ted-complaint-against-seaworld-2015-08-21

Martin, H. (2015, December 29). SeaWorld sues Coastal Russon, G. (2017b, November 7). SeaWorld deals with Commission over “no-breeding” clause added to orca declining attendance, revenue. Orlando Sentinel. project. Los Angeles Times. Retrieved from http://www. Retrieved from http://www.orlandosentinel.com/busi latimes.com/business/la-fi-seaworld-sues-coastal-com ness/tourism/os-bz-seaworld-earnings-20171030-story. mission-20151229-story.html html Mexico City is first to ban dolphin shows in Mexico. (2017, SeaWorld. (2017a). New orca encounters: SeaWorld San August 2). Puerta Vallarta Daily News. Retrieved from Diego—Summer 2017. Retrieved from http://www.sea https://www.vallartadaily.com/news/mexico/mexico- worldcares.com/future city-first-ban-dolphin-shows-mexico/ SeaWorld. (2017b). HSUS partnership. Retrieved from http:// Mexico’s lower house of congress passes measure prohib- www.seaworldcares.com/en/Future/HSUS-Partnership/ iting dolphinariums. (2017, April 30). Yucatan Times. SeaWorld. (2017c). Champion of the wild: SeaWorld com- Retrieved from http://www.theyucatantimes.com/2017/ mits $1.5 million to the National Fish and Wildlife Fed- 04/mexicos-lower-house-of-congress-passes-measure- eration. Retrieved from http://www.seaworldcares.com/ prohibiting-dolphiariums/ research/nfwf/ Naylor, W., & Parsons, E. C. M. (2018). An international SeaWorld. (2017d). SeaWorld Entertainment, Inc. reports online survey on public attitudes towards the keeping of fourth quarter and full year 2016 results. Retrieved from whales and dolphins in captivity. Manuscript in review http://s1.q4cdn.com/392447382/files/doc_financials/ for publication. Quarterly/2016/Q4/2016-Q4-SEAS-Earnings-Relase- Parsons, E. C. M. (2012). Killer whale killers. Tourism in Final-Website2.pdf Marine Environments, 8(3), 153–160. SeaWorld. (2017e). SeaWorld Entertainment, Inc. reports Pedicini, S. (2015, September 28). Judge rules against Geor- third quarter and nine months 2017 results. Retrieved gia Aquarium in its quest for beluga whales. Orlando from http://s1.q4cdn.com/392447382/files/doc_financials/ Sentinel. Retrieved from http://www.orlandosentinel. Quarterly/2017/Q3/Q3-2017-SEAS-Earnings-Release-for- com/business/os-georgia-aquarium-belugas-20150928- website.pdf story.html SeaWorld Entertainment, Inc. reports fourth quarter and full Pedicini, S. (2017, January 6). Tilikum, the infamous Sea- year 2014 results. (2015, February 26). PRNewswire. World killer whale, has died. Orlando Sentinel. Retrieved Retrieved from http://www.prnewswire.com/news-rele from http://www.orlandosentinel.com/business/tourism/ ases/seaworld-entertainment-inc-reports-fourth-quarter- os-seaworld-tilikum-died-20170106-story.html and-full-year-2014-results-300041588.html Racanelli, J. (2016, June 14). National Aquarium: The time Slattery, J. (2017, March 10). Park Board votes to ban ceta- is right to move our dolphins to a seaside sanctuary. cean captivity at Vancouver Aquarium. Global News. Baltimore Sun. Retrieved from http://www.baltimore- Retrieved from http://globalnews.ca/news/3300715/park- sun.com/news/opinion/oped/bs-ed-aquarium-dolphins- board-votes-to-ban-cetacean-captivity-at-vancouver- 20160613-story.html aquarium/ Renninger, B. J. (2013, July 15). SeaWorld unleashes 8 Small, R. J., & DeMaster, D. P. (1995). Survival of five spe- assertions about “Blackfish” and filmmakers respond. cies of captive marine mammals. Marine Mammal Sci- IndieWire. Retrieved from http://www.indiewire.com/ ence, 11, 209–226. article/seaworld-unleashes-8-assertions-about-black Solomon, J. (2014, August 19). SeaWorld stock gets soaked, fish-and-filmmakers-respond plunges 33%. CNN Money. Retrieved from http://money. Robeck, T. R., Willis, K., Scarpuzzi, M. R., & O’Brien, J. K. cnn.com/2014/08/13/investing/seaworld-earnings/ (2015). Comparisons of life-history parameters between Swenson, K. (2017, August 30). Investors say SeaWorld free-ranging and captive killer whale (Orcinus orca) lied about business downturn after orca outcry. Now populations for application toward species management. feds are investigating. Washington Post. Retrieved from Journal of Mammology, 96, 1055–1070. https://www.washingtonpost.com/news/morning-mix/ Rogers, S. (2013). The #Blackfish phenomenon: A whale of wp/2017/08/30/investors-say-seaworld-lied-about- a tale takes over Twitter. Retrieved from https://blog. business-downturn-after-orca-outcry-now-feds-are- twitter.com/2013/the-blackfish-phenomenon-a-whale- investigating/?utm_term=.56c42eb6efc7 of-a-tale-takes-over-twitter The Numbers. (2013). Blackfish (2013). Retrieved from http:// Rose, N. A. (2013, October 28). A win-win solution for www.the-numbers.com/movie/Blackfish#tab=summary captive orcas and marine theme parks. CNN Web- The Onion. (2013a, February 12). SeaWorld unveils new site. Retrieved from http://www.cnn.com/2013/10/24/ 20 whales stuffed in pool show. Retrieved from https:// opinion/blackfish-captive-orcas-solutions/ www.theonion.com/seaworld-unveils-new-20-whales- Russon, G. (2017a, August 8). SeaWorld’s declining atten- stuffed-in-pool-show-1819591057 dance leads latest earnings; stock drops. Orlando Sen- The Onion. (2013b, May 15). SeaWorld to discontinue great tinel. Retrieved from http://www.orlandosentinel.com/ white shark ride. The Onion, 49(20). Retrieved from business/tourism/os-bz-sea-world-earnings-20170804- http://www.theonion.com/article/seaworld-to-discon story.html tinue-great-white-shark-ride-32443

The Onion. (2015a). SeaWorld debuts new controversial K. Markwell (Ed.), Animals and tourism: Understand orca whale burlesque show. The Onion, 51(6). Retrieved ing diverse relationships (pp. 128–145). Bristol, UK: from http://www.theonion.com/graphic/seaworld-debuts- Channel View Publications. new-controversial-orca-whale-burle-38007 Wang, Y. (2015, December 23). Three whales have died The Onion. (2015b). SeaWorld responds to California at SeaWorld San Antonio in the last six months. drought by draining animal tanks halfway. The Onion, Washington Post. Retrieved from https://www.wash 51(14). Retrieved from http://www.theonion.com/article/ ingtonpost.com/news/morning-mix/wp/2015/12/23/ seaworld-responds-to-california-drought-by-drainin- in-the-last-six-months-three-whales-have-died-at-sea 38386 world-san-antonio/?utm_term=.8355889af19e The Onion. (2015c). New SeaWorld show just elephant Wearing, S., Buchmann, A., & Jobberns, C. (2011). Free drowning in large tank of water with no explanation. Willy: The whale-watching legacy. Worldwide Hospital- The Onion, 51(33). Retrieved from http://www.the- ity and Tourism Themes, 3, 127–140. onion.com/article/new-seaworld-show-just-elephant- Weisberg, L. (2016, April 19). SeaWorld withdraws plans for drowning-large-tan-51139 orca tank project. San Diego Union-Tribune. Retrieved The Onion. (2015d). SeaWorld employees place orcas in from http://www.sandiegouniontribune.com/business/tour plastic bags of water while cleaning tanks. The Onion, ism/sdut-seaworld-withdraws-orca-tank-project-coastal- 51(45). Retrieved from http://www.theonion.com/graphic/ 2016apr19-story.html seaworld-employees-place-orcas-plastic-bags-water-- Weisberg, L., & Russon, G. (2017, November 9). SeaWorld 51818 emails show execs knew “Blackfish” hurt business long The Onion. (2017). SeaWorld Café introduces new 5-pound before they told investors. Los Angeles Times. Retrieved orca burger–eating challenge. The Onion, 53(1). Retrieved from http://www.latimes.com/business/la-fi-seaworld- from http://www.theonion.com/article/seaworld-cafe-intro blackfish-20171109-story.html duces-new-5-pound-orca-burgerea-55005 White, T. I. (2000). Doing business in morally troubled Tompkins, C. (2011). Testimony of Charles Tompkins, Sea- waters: Dolphins, the entertainment industry, and the World vice-president of animal training, in Secretary of ethics of captivity. International Journal of Applied Phi- Labor v. SeaWorld of Florida LLC (transcript), Septem- losophy, 14, 197–208. ber 21, 2011. Retrieved from https://www.scribd.com/ Wildlife Rescue & Rehabilitation. (2015). Sanctuary. doc/247774354/OSHA-v-SeaWorld-Trial-Transcript Retrieved from http://back.wildlife-rescue.org/services/ Veil, S. R., Petrun, E. L., & Roberts, H. A. (2012). Issue sanctuary/ management gone awry: When not to respond to an Wright, A., Veríssimo, D., Pilfold, K., Parsons, E. C. M., online reputation threat. Corporate Reputation Review, Ventre, K., Cousins, J., Jefferson, R., Koldewey, H., 15, 319–332. Llewellyn, F., & McKinley, E. (2015). Competitive out- Ventre, J., & Jett, J. (2015). “Killer whales, theme parks, reach in the 21st century: Why we need conservation and controversy: An exploration of the evidence.” In marketing. Ocean & Coastal Management, 115, 41–48.

&lt;I&gt;Blackfish&lt;/I&gt;

<I>Blackfish</I>