Chapter X — Marine Mammals in Captivity 



that the Service publish an unequivocal policy state- 

 ment or, if necessary, regulations specifying that the 

 release of captive marine mammals to the wild with- 

 out proper authorization has the potential to injure 

 marine mammals and is considered an illegal taking. 

 The Commission further recommended that, if the 

 Service does not believe it has sufficient authority to 

 prevent unauthorized releases, it seek amendment of 

 the Marine Mammal Protection Act to obtain such 

 authority (e.g., by specifically prohibiting unautho- 

 rized releases, allowing recovery of costs for recap- 

 ture efforts, and giving the Service clearer authority 

 to obtain an injunction against those intending to 

 release animals or otherwise violate the Act). 



As discussed in the previous aimual report, one 

 effort to release long-term captive marine mammals 

 involved bottlenose dolphins held at a facility in 

 Florida. The facility, which acquired the dolphins in 

 1994 under a public display permit, intended to seek 

 a scientific research permit under which preparation 

 for release, release, and post-release monitoring 

 would occur. Before submitting a permit application, 

 however, the facility operators took matters into their 

 own hands. On 23 May 1996, despite warnings from 

 the National Marine Fisheries Service that such action 

 would constitute a violation of the Marine Mammal 

 Protection Act, two of the dolphins were transported 

 to open waters off Key West and released without 

 authorization. The facility contended that this was not 

 a violation of the Act. 



Without sufficient preparation for the release, one 

 of the dolphins appeared in a Key West marina with 

 lacerations, begging for food. The second dolphin 

 had sustained deep lacerations and was emaciated. 

 The animals likely would have died, had they not 

 been rescued by the National Marine Fisheries Ser- 

 vice. As demonstrated by this experience, releasing 

 marine mammals before they are properly prepared 

 clearly has the potential to injure the released animals. 

 It also exposes the released and wild marine mammals 

 to potential risks of contracting diseases. Therefore, 

 the Commission believes the unauthorized release of 

 captive marine mammals constitutes a form of taking 

 as defined under the 1994 amendments to the Marine 

 Mammal Protection Act. 



The National Marine Fisheries Service and the 

 Animal and Plant Health Inspection Service have both 

 pursued enforcement actions against the facility. The 

 Animal and Plant Health Inspection Service suspended 

 the facility's Animal Welfare Act license, which 

 provided a partial basis for the National Marine 

 Fisheries Service to seize a third dolphin maintained 

 at the facility. The Animal and Plant Health Inspec- 

 tion Service concluded its enforcement action in 1996 

 by imposing a $10,000 fine. The fine was suspended, 

 however, when the licensee agreed to surrender its 

 license voluntarily and cease participating in regulated 

 activities. By the end of 1998 the National Marine 

 Fisheries Service had filed charges against four 

 individuals involved in the unauthorized release. All 

 four were charged with an illegal take by harassment 

 and illegal transportation of each dolphin. The case 

 is expected to be heard by an administrative law judge 

 in February 1999. 



On 6 December 1996 the Commission also wrote 

 the Animal and Plant Health Inspection Service 

 regarding the issue of release. The Commission noted 

 that Animal Welfare Act regulations require that 

 facilities maintaining marine mammals be structurally 

 sound and in good repair to protect and constrain the 

 animals and to restrict entry of unwanted animals. 

 The Commission noted that despite the clear require- 

 ment that marine mammals be contained in an enclo- 

 sure, some facilities have been allowed to permit 

 animals to venture outside the primary enclosure. 

 Although this may be appropriate in certain situations 

 (e.g. , open-water training of marine mammals by the 

 Navy), such exceptions should be authorized only if 

 necessary and only if safeguards are in place to ensure 

 that the animals will be returned to their primary 

 enclosure. The Commission further recommended 

 that the Animal and Plant Health Inspection Service 

 work with the National Marine Fisheries Service and 

 the Fish and Wildlife Service to review their respec- 

 tive authorities and consider the need for more deci- 

 sive enforcement of existing statutory provisions and 

 regulations, issuance of policy statements, and regula- 

 tory amendments. If the agencies determine that they 

 have authority to respond to, but not prevent, unau- 

 thorized releases, the Commission recommended that 

 the agencies seek statutory authority to do so. 



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