By Ken Stone
What led to Kasatka being euthanized at SeaWorld San Diego? What killed two other orcas — in Orlando and San Antonio?
And why won’t the federal agencies involved with killer whales make the Orlando-based theme park company share its findings?
Those are among the issues being raised in a federal lawsuit filed Tuesday in Washington, D.C., by the Animal Welfare Institute, or AWI, also based in the nation’s capital.
Alleging violations of the Freedom of Information Act, or FOIA, the nonprofit animal-protection group is asking the court to force the National Marine Fisheries Service and its parent National Oceanic and Atmospheric Administration to explain why SeaWorld can withhold the necropsy of Kasatka as well as the cause-of-death reports of Tilikum and his granddaughter Kyara, who also died in 2017.
Moreover, AWI wants to know the legal basis for a reputed change in a public-display permit that once mandated the disclosure of killer whale necropsies.
“After the death of three SeaWorld orcas over a seven-month period,” says the nine-page suit, “NOAA/NMFS has refused to release or disclose the legal rationale for its conclusion that SeaWorld can ignore clearly stated permit requirements and withhold information that would shed light on the cause of death and medical condition of these whales during their lives in captivity and benefit science and marine mammal husbandry, stranding response, and medical care.”
Writing for AWI, attorneys Donald C. Baur and Sunny Tsou said: “SeaWorld refuses to release the whales’ clinical histories or necropsy reports.”
In response to a request for comment, agency spokeswoman Kate Brogan said Thursday: “NOAA Fisheries cannot discuss ongoing litigation.”
SeaWorld San Diego spokesman David Koontz issued this statement:
As required, SeaWorld submits mortality information to appropriate regulatory agencies. Additionally, we share this information with the public, and the zoological community.
Necropsy reports contain complex medical information and analysis, which are best interpreted and used by researchers and trained specialists.
SeaWorld does release specific necropsy findings via peer-reviewed scientific papers where the information is useful to the health and management of both free-ranging animals and those in human care.
Our teams work with a variety of scientists to assure that the data and biomaterials from the animals are available for specific and verified scientific studies that will benefit those species today and in the future.
Those interested in reading more about SeaWorld’s scientific contributions can review the more than 350 peer-reviewed articles, book chapters and books our team members have authored at SeaWorldCares.com.
(In mid-September, Times of San Diego asked SeaWorld San Diego for Kasatka’s necropsy but didn’t receive a response. SeaWorld posted updates here.)
In a press release Wednesday, the AWI said: “The agencies claim that an obligation under pre-1994 public display permits to provide necropsy results and clinical histories (complete veterinary records) is no longer in effect due to 1994 changes in the Marine Mammal Protection Act (MMPA), but have offered no legal justification for the claim.”
A series of FOIA requests for that legal reasoning was ignored, AWI argues in the lawsuit.
“This is an issue of government transparency and sound science,” said Naomi Rose, AWI marine mammal scientist. “We find it disturbing that the agencies have gone to such great lengths to hide their rationale for their legal conclusion.”
The AWI release said SeaWorld cited generic lung disease as a cause of death.
“Fatal lung infections are all too common in captive orcas,” AWI said. “A more detailed look at the necropsy results and clinical histories would provide scientists, including those involved in rescuing stranded whales and dolphins, with important information on treatments, diagnoses and prognoses.”
The AWI suit said NOAA/NMFS still hasn’t responded to a Sept. 29, 2017, request for public records, which by law should have come within a month.
“Nor has the agency provided AWI with any explanation for the ongoing delay,” the suit says. “The other agencies have either responded in full … or acknowledged receipt and confirmed that review is underway.”
In March 2017 — two months after “Blackfish” subject Tilikum died in Orlando — NOAA/NMFS said it had concluded that the necropsy and clinical history provisions of Tilikum’s permit had been “extinguished” by 1994 amendments to the Marine Mammal Protection Act.
But AWI was told that “the legal analysis supporting this determination is exempt from disclosure under the attorney-client privilege,” the suit says.
This was done despite what AWI called “the plain language of the permit.”AWI says its lawyers have provided legal analysis that the necropsy and clinical history are still required.
Appointed to her current job by President Clinton in 1997, Kollar-Kotelly was presiding judge from 2002 to 2009 of the United States Foreign Intelligence Surveillance Court.
In one notable case involving the Freedom of Information Act, she ruled in 2008 that the Office of Administration was not subject to FOIA “and therefore did not have to release records regarding missing White House e-mails” of the George W. Bush administration, according to CNN.
“The possibly lost e-mails are from a period in which the United States decided to go to war with Iraq, White House officials leaked the identity of CIA officer Valerie Plame and the Justice Department started a criminal investigation into who leaked the information,” CNN recounted.
More recently, Kollar-Kotelly, 74, blocked the Trump Administration’s proposed transgender military ban, writing in a strongly worded opinion that the policy “does not appear to be supported by any facts.”
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