The United States is often considered to have some of the highest animal welfare standards in the world and yet, when it comes to captive marine mammals, even the U.S. fails to provide the necessary safeguards and standards to protect one of our favorite creatures. Whether talking about dolphin shows at aquariums, or swim-with-dolphin (SWTD) attractions or wading programs at marine parks, U.S. regulations just don't measure up.
There is no law in the United States that is specifically designed to protect the welfare of dolphins. Rather, the laws in the U.S. seek only to regulate the captivity industry and set up certain guidelines for capturing and confining wild dolphins. Clearly, as there is a world of difference between animal protection and animal regulation, this leaves a gaping loophole through which dolphins can be abused and exploited.
Legality of Dolphin Captures
Isn't it illegal to capture dolphins from the wild in the United States?
No. There is a widespread belief that it is illegal to capture wild dolphins in the U.S. However, even though no permits have been granted for captures since 1989, it is still legal to capture dolphins. There are two main reasons why no wild dolphins have been caught in U.S. waters for the past 20 years:
An unprecedented number of strandings has supplied the captivity industry with all of the dolphins it needs – for now. Because of this, the industry agreed to voluntarily halt captures. But there is no guarantee this policy will continue permanently.
The word is out about the tremendous violence surrounding dolphin captures and the captivity industry has grown cautious about drawing negative attention and protests by planning to catch wild dolphins.
But what about the Marine Mammal Protection Act (MMPA)? Surely this act, passed in 1972, must protect dolphins.
Wrong! The MMPA only stipulates that the capture of wild dolphins and other marine mammals is acceptable as long as the individual applies for and receives a permit from the National Marine Fisheries Service (NMFS).
Permits to “take” or capture wild dolphins may be granted by NMFS for the following reasons:
Accidental captures by fishermen (this provision allows for the deaths of millions of dolphins in the nets of the tuna fishing industry)
U.S. Marine Park Facilities
How does a U.S. marine park facility obtain a permit for the capture of a wild dolphin or to import a dolphin from another facility?
When an individual or marine facility wants to capture or import a dolphin, they must first submit an application to the National Marine Fisheries Service (NMFS). The NMFS will then refer the application to its Marine Mammal Commission for review and posting in the “Federal Register”.
Once an application is posted in the register, there will be a 30-day period allowed for public comment during which animal welfare groups and activists can send letters objecting to the proposed capture. After the 30 days is up, the Commission will determine whether or not the applicant should be granted a permit for the wild capture or importation.
Are there any requirements that must be met by a marine facility before they can obtain a permit?
Yes. The Marine Mammal Protection Act has three requirements that facilities must meet before a capture permit can be granted. These requirements are in place to ensure that dolphins are not captured by individuals and maintained as part of a private collection. The requirements are as follows:
The facility must offer an education or conservation program based on recognized standards of the public display community, including the American Zoo and Aquarium Association and the Alliance of Marine Mammal Parks and Aquariums.
The facility must be open to the public on a regular basis.
An individual or facility can only keep a marine mammal on public display (includes interactive programs such as swimming-with-dolphins) if they are licensed under the Animal Welfare Act (AWA).
Who decides how much space a captive dolphin needs?
The Animal Welfare Act (AWA), enacted in 1979, sets the standards for the care of captive marine mammals. While NMFS is responsible for administering the Marine Mammal Protection Act, once a dolphin is captured, their jurisdiction ends. After a dolphin is captured, the United States Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS) has the authority to enforce the AWA. The AWA establishes the criteria for keeping marine mammals in captivity and specifies guidelines for the following:
Space requirements (i.e., the size of a dolphin's tank)
Quality of water and sanitation
Transportation and handling
Food quality and diet
According to the space requirements under AWA, a bottlenose dolphin can be legally confined to a space that measure no more than 24 x 24 feet -- just 6 feet deep! For an energetic, inquisitive marine mammal that can swim up to 40 miles a day in the wild, this requirement is shockingly inadequate.
While the AWA does establish space requirements for the dolphins, qualifications for personnel (managers, behaviorists, trainers and veterinarians), ratio of human participants to facility personnel, interaction time, and veterinary schedules, the guidelines were clearly designed to protect and benefit the tourist industry not the dolphins.
What about swim-with-the-dolphin and other interaction programs?
The USDA took over the responsibility for setting standards and enforcing regulations for captive marine mammal facilities in 1994, including swim-with-the-dolphins (SWTD) and interaction programs. Between 1994 and 1998, dolphin interaction programs operated without any regulation from the U.S. government. On Oct. 5, 1998, the USDA was forced to create guidelines for these programs due to the rapid growth of this industry. Unfortunately, the rules were quickly suspended on Apr. 1, 1999, due to overwhelming pressure from the captive dolphin industry. Consequently, the USDA only issues permits to operate facilities that offer SWTD programs but does not regulate them. Since the USDA took over the responsibility of overseeing dolphin interaction programs in 1994, operators have not been required to report injuries to staff or visitors. Although APHIS inspectors are responsible for monitoring compliance at marine mammal facilities, the understaffed office does not have the resources to visit each park more than once per year which means that the captive dolphin industry is called upon to police itself.
Whether swimming or wading with dolphins, these programs are inherently dangerous for both humans and dolphins. Trevor Spradlin, who conducted a 1992-94 study of SWTD programs for the National Marine Fisheries Service (NMFS), wrote, "Dolphins have not been domesticated. They are wild animals, even if they are in captivity and have been trained to be around people. Therefore, great caution should be taken when interacting with them. Dolphins are large, powerful animals that can inflict serious harm on people. NMFS has injury reports on file that illustrate the potential risks to swimmers and dolphins in SWTD programs are real, and should not be overlooked or disregarded."
Do facilities need a permit to export their dolphins to other countries?
No. Marine parks and facilities are not required to obtain a permit to export their marine mammals to foreign zoos or aquariums. The Marine Mammal Protection Act (MMPA) specifically states that a permit issued by NMFS to import a marine mammal for public display grants the holder the right to transfer the marine mammal from one public display facility to another without obtaining additional permits or authorization. This means that aquariums and marine parks can freely sell, trade or buy marine mammals from parks within and outside the U.S. at their own discretion, without going through any application or screening process.
NMFS does require that the facility in the receiving country meet certain standards. For example, it must meet the U.S. criteria for water quality and space measurements. Additionally, the receiving facility must provide an educational or conservational component. The receiving country must also provide comity, a rule of courtesy by which one government honors the decisions made by another government, to NMFS. It should be noted however, that neither NMFS nor APHIS has any authority to enforce regulations once the marine mammal has left United States jurisdiction and therefore cannot ultimately ensure the welfare of the marine mammals.
For More Information
The complete content of the Animal Welfare Act and its requirements can be found on APHIS's Animal Care website. The sections pertaining specifically to marine mammals can be found in the Publications sections 3.100 – 3.118.
*Information supplied by Animal Protection Institute and the National Marine Fisheries Service and the Dolphin Project.