May 26, 2020 Via email Ms. Katherine Fernandez Rundle Miami-Dade State Attorney [email protected] Re: Request for Investigation Into Cruelty to Animals Regarding the Orca Lolita at Miami Seaquarium Dear Ms. Fernandez Rundle: I am counsel to People for the Ethical Treatment of Animals (PETA) and am writing on the organization’s behalf to request your office’s investigation and pursuit of appropriate charges against Miami Seaquarium and its employees responsible for causing the orca Lolita torment, excessive and repeated infliction of unnecessary suffering, and depriving her of necessary shelter in apparent violation of Florida’s cruelty to animals law. As discussed further below, orcas are highly social, long-lived, far ranging, and psychologically and culturally complex apex predators. These attributes make them particularly vulnerable to suffering in inadequate captive conditions, such as the uniquely deficient conditions at Seaquarium. Despite her highly endangered status, Lolita is held in a small, shallow, barren concrete tank, without adequate protection from the sun and without appropriate companionship. These conditions prevent her from performing any behaviors natural to an orca (including diving, swimming any meaningful distance, seeking shelter from the sun, feeling ocean currents, and forming species-typical social relationships), and likely cause her to suffer chronic illness, various types of sun damage, and to sustain repeated injuries in the form of rakes to her flesh from the incompatible dolphins in her tank. As a result, Lolita manifests ongoing psychological injuries in the form of stereotypic (i.e., repetitive and abnormal) behavior—when not being manipulated to perform for guests by being fed dead fish. Marine mammal experts can attest that the complete deprivation of all that is natural and important to Lolita causes her extreme and unnecessary stress, agitation, injury, and suffering, in what we strongly believe to be a violation of the cruelty to animals law, Fla. Stat. § 828.12. We stand ready to facilitate your contact with orca experts and to otherwise assist in any way in your investigation. I. Florida Cruelty to Animals Law Misdemeanor animal cruelty occurs when a person—including a corporation—unnecessarily torments or causes an animal to be tormented, or deprives or causes an animal to be deprived of necessary shelter. Fla. Stat. § 828.12(1). “Torment” is defined to “include every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused … permitted, or allowed to continue when there is reasonable remedy or relief.” Id. § 828.02. Felony aggravated animal cruelty occurs when a person intentionally commits an act, or fails to act, which results in the “excessive or repeated infliction of unnecessary pain or suffering.” FLA. STAT. § 828.12(2). As used in either of these statutes, “unnecessary” means “not necessary,” and therefore not “absolutely needed” or “required.”1 Animal cruelty is a general intent crime. “[T]he statute does not require a specific intent to cause pain, but rather punishes an intentional act that results in the excessive infliction of unnecessary pain or suffering.” State v. Avella, 275 So. 3d 207, 210 (Fla. Dist. Ct. App. 2019); see also Reynolds v. State, 842 So. 2d 46, 48 (Fla. 2002). Accordingly, to support a conviction, Seaquarium need only have intended to confine Lolita in the conditions in which they do, which is undeniably the case. Seaquarium need not have intended to inflict or permit unnecessary suffering, although the company has been at all times fully aware of the consequences of her confinement. As discussed herein, Seaquarium confines Lolita in conditions that inflict such psychological harm that they lead to stress, abnormal repetitive behaviors, and physical injuries from attacks by other animals. Moreover, this suffering cannot reasonably be considered “necessary” under any definition of the word. In no way is Seaquarium’s confinement of Lolita with incompatible animals for mere human entertainment to maximize corporate profit in any way needed, required, essential, or required to be done. Seaquarium’s confinement of Lolita to these harmful conditions is subject to prosecution even absent any overt physical injury. In C. E. Am., Inc. v. Antinori, 210 So. 2d 443, 444 (Fla. 1968), for example, the Florida Supreme Court rejected the event organizer’s harmless description of so-called “bloodless bullfights,” in which bulls are brought into an arena and forced to participate in a performance for public entertainment, as “contrary to common sense and common experience” and “unreliable in the light of reason,” and held that the performances violate the anti-cruelty law. The court concluded that this harassing and traumatic spectacle for public entertainment—contrary to the bull’s inherent nature, though not resulting in physical harm to the animal—“shocks the sensibilities of any person possessed of humane instincts.” Id. at 446.2 II. The Conditions of Captivity at Seaquarium Cause Lolita to Unnecessarily Suffer Orcas are highly intelligent and social apex predators, and living in small tanks in captivity causes them extensive physical and psychological harm. Among other things, the physical constraints of the 1 Florida courts construe words of common usage employed and undefined in a statute “in their plain and ordinary sense.” Zuckerman v. Alter, 615 So. 2d 661, 663 (Fla. 1993). See Unnecessary, Merriam-Webster, http://www.merriam- webster.com/dictionary/unnecessary; Necessary, Merriam-Webster, http://www.merriam- webster.com/dictionary/necessary. 2 Note that Seaquarium’s license to exhibit animals under the federal Animal Welfare Act (AWA) is irrelevant to determining whether it has violated state law. The AWA is abundantly clear that it does not preempt more protective state and local laws, 7 U.S.C. § 2143(a)(8), and state cruelty charges are routinely brought against licensed exhibitors. 2 artificial enclosure at Seaquarium limits Lolita’s ability to exercise, disperse from incompatible pairings or during conflicts, or engage in natural behaviors such as swimming at high speeds or diving, causing extreme stress and frustration. The stress of the captive environment often manifests in orcas by “physiological and behavioral abnormalities indicative of psychological distress and emotional disturbance,” including stereotyped behavior, excessive submissiveness, self-inflicted physical trauma and mutilation, compromised immunology,3 all of which Lolita exhibits at Seaquarium. A. Orcas Are Highly Intelligent Mammals Whose Brains Are Highly Developed in Areas Responsible for Complex Cognitive Functions Orca brains share—and, in some respects, exceed—a number of important features with human brains that are associated with complex intelligence. As with the human brain, orca brains are much larger than expected for their body size.4 Orcas therefore have more brain tissue available to serve complex cognitive functions, such as self- awareness (sense of self identity), social cognition, culture, and language. In addition, the neocortex (the outer wrinkled surface of the cerebrum) of the orca brain even surpasses the human brain in degree of convolutedness—a measure of surface area indicating the amount of information processing possible.5 The neocortex is involved in integrating information from the different senses to form mental representations of objects and thoughts and is also part of the cerebral cortex—the system that processes higher-order thinking and complex and abstract processes, such as language, self-awareness, metacognition (the ability to think about your own thoughts), social cognition, and theory of mind (the ability to think about and infer the thoughts of others). The orca brain also contains spindle-shaped cells known as von Economo neurons in the same areas of the brain as humans.6 These spindle cells are found in the parts of the brain that are thought to be involved in high-level cognitive processing, such as social and emotional cognition, awareness, and intuition.7 This includes “feelings of empathy, guilt, embarrassment, and pain, as well as judgement [sic], social knowledge, and consciousness of visceral feelings.”8 Finally, orca brains possess a highly developed paralimbic region,9 which is believed to be involved in processing and integrating emotional information with other thought processes. This suggests that the orca brain may have evolved certain kinds of sophisticated or complex functions and 3 Lori Marino & Toni Frohoff, Toward a New Paradigm of Non-Captive Research on Cetacean Cognition, 6(9) PLOS ONE 3 (2011). 4 Lori Marino, A Comparison of Encephalization Between Odontocete Cetaceans and Anthropoid Primates, 51 Brain, Behav. & Evolution 230 (1998). 5 Patrick R. Hof et al., Cortical Complexity in Cetacean Brains, 287A Anatomical Rec. 1142, 1151 (2005); Lori Marino, Cetacean Brains, in The Encyclopedia of Neuroscience 807-810 (Larry R. Squire ed., 2008); Lori Marino et al., Neuroanatomy of the Killer Whale (Orcinus Orca) from Magnetic Resonance Imaging, 281A Anatomical Rec. 1256, 1262 (2004) [hereinafter Neuroanatomy of the Killer Whale]. 6 Camilla Butti et al., Total Number and Volume of Von Economo Neurons in the Cerebral Cortex of Cetaceans, 515 J. Comp. Neurology 243, 244 (2009). 7 Id. 8 Id. at 257 (citations omitted). 9 Marino, Neuroanatomy of the Killer Whale, supra. 3 thought processes related to emotion-processing that did not evolve in the human brain—or at least not