Beluga Whale Import Permit Comment - George Washington ...

COMMENT 

On Application of Georgia Aquarium, Inc. 

for a Permit to Import Beluga Whales for Public Display 

under the Marine Mammal Protection Act 

and 

Draft Environmental Assessment 

for Issuance of Permit No. 17324 

for the Importation of Beluga Whales for Public Display Purposes 

October 29, 2012 

Before the 

National Marine Fisheries Service, 

National Oceanic and Atmospheric Administration, 

U.S. Department of Commerce 

Prepared by: 

Joan Schaffner, Esq., Erin Sheley, Esq., 

Tyler Sniff, Jessica Kabaz-Gomez, Ann Porter, Emily Tone

Introduction 

The George Washington University Law School Animal Welfare Project (“GW Law 

AWP”) respectfully submits this comment to the National Marine Fisheries Services (“NMFS”) 

of the National Oceanic and Atmospheric Administration (“NOAA”) on a pending application by 

Georgia Aquarium, Inc. for a permit to import eighteen beluga for the purposes of public display 

under the Marine Mammal Protection Act (“MMPA”), 16 U.S.C. § 1361 et seq., and the 

associated Draft Environmental Assessment (“Draft EA”). These beluga whales are presently 

being held at the Utrish Marine Mammal Research Station on the Russian coast of the Black Sea. 

GW Law AWP is an independent pro bono effort of law faculty and law students that seeks to 

raise awareness of animal welfare issues and promote the interests of animals through the law. 

In this comment, GW Law AWP urges NMFS to deny the Georgia Aquarium’s 

application for a MMPA import permit. NMFS should not issue the Georgia Aquarium a 

MMPA import permit because the inability of the Aquarium and its partner facilities to 

successfully breed and sustain beluga whales indicates a lack of sufficient expertise and 

resources, as well as inadequate facilities, to achieve the captive breeding goals stated in the 

application, a criterion of permit issuance under 50 C.F.R. § 216.34. Alternatively, if NMFS 

approves the application, it should place restrictions on the permit that will protect the welfare of 

the imported beluga whales and ensure that the purposes of the import and the MMPA are 

satisfied over the long term. Specifically, the permit should require the Georgia Aquarium to 

conduct research on the impacts of captivity on beluga whales and other avenues of beluga whale 

repopulation, the submission of an annual report to NMFS on the condition of the imported 

beluga whales, as well as prohibit the sale of the imported beluga whales to facilities that will use 

them for purposes other than conservation. 

1

Prior to making any final decision on the Georgia Aquarium permit application, however, 

NMFS must improve its analysis of the environmental impacts of the agency’s action under the 

National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4321 et seq. Under NEPA, an 

environmental assessment (“EA”), which NMFS has completed a draft of, was clearly required 

for this action, and thus all representations by the Agency in the Draft EA that a categorical 

exclusion (“CE”) would have been sufficient NEPA analysis are misleading and should not be 

included in the final EA. More importantly, the Draft EA is legally inadequate because it fails to 

consider reasonable alternatives within the jurisdiction of NMFS, including authorizing the 

import permit from a closer facility, allowing import of frozen beluga whale sperm for artificial 

insemination, instead of whales, and requiring the import of fewer whales along with sperm. 

NMFS should analyze these alternatives in any Final EA as it considers whether to deny the 

import application or impose reasonable restrictions on it. 

I. NMFS Should Not Issue the Georgia Aquarium an MMPA Import Permit Because 

the Inability of the Georgia Aquarium and Its Partner Facilities to Successfully 

Breed and Sustain Beluga Whales Indicates a Lack of Sufficient Expertise and 

Resources, as well as Inadequate Facilities, to Achieve the Captive Breeding Goals 

Stated in the Application, a Criterion of Permit Issuance under 50 C.F.R. § 216.34. 

The Georgia Aquarium fails to meet the MMPA import permit issuance criteria set forth 

in 50 C.F.R. § 216.34. Under § 216.34, one criterion of permit issuance is “whether the 

applicant’s expertise, facilities, and resources are adequate to accomplish successfully the 

objectives and activities stated in the application.” According to the permit application, the 

purpose of the import “is to promote conservation and education and to enhance the North 

American beluga breeding cooperative by increasing the population base of captive beluga 

2

whales to a self-sustaining level.” 1 However, there is strong evidence indicating that the Georgia 

Aquarium and its partner facilities where it proposes to maintain the imported beluga whales lack 

the requisite expertise and resources to successfully conserve the beluga species and/or 

contribute to a self-sustaining captive population. 

None of the aquarium facilities named in the permit application has a successful history 

of breeding or maintaining beluga whales in their care. Since 1999, a mere eighteen beluga 

births have occurred between the Georgia Aquarium, Shedd Aquarium, Mystic Aquarium, and 

the three Sea World parks listed in the application (Orlando, San Antonio, and San Diego). 2 The 

Georgia Aquarium, in particular, has struggled to breed beluga whales, as evidenced by the May 

2012 death of its first captive-born calf, which died at just five days old. 3 The Shedd Aquarium 

has encountered similar difficulties, with only fifty percent of its captive-born beluga whales 

surviving to reach one year of age. Since 1999, the Shedd Aquarium’s program has produced ten 

beluga births, of which two were stillborn, and two calves died at less than two days old. 

Additionally, one of the remaining six calves surviving past infancy died at approximately one 

year of age. To date, the Mystic Aquarium has not produced any beluga calves. 4 

Likewise, the three Sea World parks named in the permit application have failed to 

demonstrate expertise sufficient to increase the North American captive beluga whale population 

to a self-sustaining level. Despite their relatively large collection of beluga whales, Sea World 

Orlando has reported only one beluga birth since 1999. Sea World San Antonio has been most 

1 Georgia Aquarium, Inc., Application for a Permit to Import Certain Marine Mammals for Public Display Under the 

Marine Mammal Protection Act, at 12 (June 15, 2012), 

http://www.nmfs.noaa.gov/pr/permits/sci_res_pdfs/17324_final_application.pdf [hereinafter application]. 

2 See LUGA’LOGUE (last visited Sept. 27, 2012), http://www.ceta-base.com/lugalogue/. 

3 Georgia Aquarium’s Baby Beluga Dies Days After Critical Birth, WSBTV (May 23, 2012), 

http://www.wsbtv.com/news/news/local/baby-beluga-dies-days-after-critical-birth/nPCg9/. 

4 See LUGA’LOGUE, supra note 2. 

3

successful—with four calves born to three different mothers since the year 2000. 5 Most recently, 

in 2010, following the 2008 death of its first captive-born beluga whale calf, Sea World San 

Diego had one successful beluga whale birth. However, the mother subsequently ignored her 

calf, a phenomenon uncommon in wild beluga whale populations, and Sea World employees had 

to intervene to sustain the calf. 6 Additionally, all of these captive birthing patterns demonstrate a 

stark departure from the natural birthing patterns of wild beluga whales, where mothers give 

birth every two to three years on average. 7 

In addition to the failure of their captive breeding programs, the six marine mammal 

parks that would care for the imported beluga whales also have poor track records in sustaining 

adult beluga whales. In September of 1991, two young, wild-born beluga whales imported to the 

park the month prior died suddenly. The reported cause of death was acute cardiovascular 

collapse, although the precise cause was unknown. Similarly, the Orlando, San Antonio, and 

San Diego Sea World facilities have a history of deaths of young captive-born beluga whales, 

many transferred from other facilities. In 2003, Sea World Orlando reported the death of a four 

year-old captive-born beluga from intestinal torsion. Sea World San Antonio has reported four 

deaths of young beluga whales at its facilities since 1995, with three of the four beluga whales 

less than three years of age. Although one cause of death was undeterminable, the remaining 

causes included chronic osteomyelitis, acute cranial and cervical conditions, and acute bacterial 

pneumonia. 8 According to the Merck Veterinary Manual, cases of pneumonia arising in captive 

marine mammals “often can be considered the result of mismanagement,” since primary 

5 

MARINE MAMMAL INVENTORY REPORT: SEA WORLD, LLC 1–3 (June 7, 2011), available at http://www.cetabase.com/lugalogue/dl_swt.html. 

6 

Michael Stetz, SeaWorld Raising First Newborn Beluga Whale, UT SAN DIEGO NEWS (Aug. 11, 2010), 

http://www.utsandiego.com/news/2010/aug/11/seaworld-raising-first-newborn-beluga-whale/?page=1#article. 

7 

Beluga Whale, NOAA FISHERIES (last visited Oct. 27, 2012), 

http://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/belugawhale.htm. 

8 

See MARINE MAMMAL INVENTORY REPORT, supra note 5. 

4

contributing factors include temperature fluctuations from warm water to cold air and poor air 

quality at the water surface of a tank—conditions which disproportionately affect already 

compromised animals. 9 Sea World San Diego also reported the 1986 death of a fifteen year-old 

captive-born beluga whale as due to “senile changes, old age,” 10 despite evidence that the 

average life span of wild beluga whales is somewhere between thirty-five and fifty years of age. 11 

Thus, the inability of the Georgia Aquarium and its partner facilities—Mystic Aquarium, 

Shedd Aquarium, Sea World Orlando, Sea World San Antonio, and Sea World San Diego—to 

successfully breed and sustain beluga whales in their facilities indicates a lack of sufficient 

expertise and resources and inadequate facilities to properly achieve the goals stated in the 

permit application, a criterion of MMPA import permit issuance under 50 C.F.R. §216.34. As 

such, NMFS should not grant the Georgia Aquarium’s application for a MMPA permit to import 

eighteen beluga whales for the purposes of public display. 

II. If NMFS Issues the Georgia Aquarium a MMPA Import Permit, the Agency 

Should Place Restrictions on the Permit that Will Protect the Welfare of the 

Imported Beluga Whales and Ensure that the Purposes of the Import and the 

MMPA Are Satisfied over the Long Term. 

A. A Permit Should Require the Georgia Aquarium to Conduct Research on the 

Causes of Stress in Beluga Whales, the Impact on the Species Occurring as a 

Result of Takings from the Wild, and the Impacts of Living in Captivity, as 

Opposed to the Wild. 

If NMFS issues the Georgia Aquarium an import permit, the Agency should require the 

Aquarium as a condition of the permit to conduct research on the stress involved in capturing 

beluga whales from the Russian Seas, as well as the effects of lengthy transportation on the 

animals. In addition, the Georgia Aquarium should conduct an independent study of stressors of 

9 MERCK & CO., THE MERCK VETERINARY MANUAL: MARINE MAMMALS, BACTERIAL DISEASES (2011), available at 

http://www.merckvetmanual.com/mvm/index.jsp?cfile=htm/bc/170808.htm. 

10 See MARINE MAMMAL INVENTORY REPORT, supra note 5. 

11 See Beluga Whale, supra note 7. 

5

eluga whales in captivity, including any kind of physical and/or psychological damage that 

results, and make this information publically available. Indeed, much remains to be known 

about the stress responses of beluga whales and other marine mammals. 12 Generally, marine 

mammal stressors include “noise, threatening stimuli, habitat and ecosystem changes, transport 

and restraint, new environments, and social interactions for [captive] whales under human 

care.” 13 All of these elements are involved in the importation and captivity of the beluga whales 

in question and thus NMFS should require the Georgia Aquarium to study the short-term and 

long-term impacts of these elements on the health of beluga whales. 

Additionally, the permit should require the Georgia Aquarium to conduct a comparative 

study of the standards of living and average lifespan of beluga whales living in the wild, 

specifically in the Seas of Okhotsk, as compared with the standards of living and average 

lifespan of beluga whales living in captivity. The research should include the effects on the 

behavior, physical and mental health, and physiology of the whales of living in captivity. While 

the average lifespan for a beluga whale living in the wild is up to fifty years, the average lifespan 

for a beluga whale living in captivity is approximately eight years. 14 The Whale and Dolphin 

Conservation Society (“WDCS”) attributes the short lives of beluga whales in captivity to the 

stress of living in captivity, stating that “[f]or all the arguments about veterinary care and 

restaurant-quality fish, [captive beluga whales are] not living any longer. . . . After over [fifty] 

years of keeping beluga whales in captivity, we still [do not] have a self-sustaining population.” 15 

12 

See generally OFFICE OF NAVAL RESEARCH, EFFECTS OF STRESS ON MARINE MAMMALS EXPOSED TO SOUND 6, 17 

(2009). 

13 

See id. at 6. 

14 

See MARINE MAMMAL INVENTORY REPORT, supra note 5. 

15 

Brandon Keim, Georgia Aquarium’s Beluga Whale Capture Comes Under Fire, WIRED (Oct. 5, 2012), 

http://www.wired.com/wiredscience/2012/10/beluga-aquarium-controversy/. 

6

To date, there is a lack of information showing any benefit to the beluga whale species as a 

whole of keeping whales in captivity. 16 

The Georgia Aquarium reports that one of its goals underlying the request for import is 

ex-situ conservation of beluga whale by “increasing the population base of captive beluga 

[whales] to a self-sustaining level.” 17 However, marine mammal experts vary on the benefits of 

taking whales from the wild to meet goals of conservation. According to Dr. Hal Whitehead, a 

marine mammal expert at Dalhousie University in Nova Scotia, beluga whales “are intensely 

social mammals with complex and lengthy migrations, and . . . they are acoustic communicators. 

. . . There is no way even the best captive situation has even the slightest approximation to 

that.” 18 Similarly, according to WDCS, “[c]onfined in an unnatural environment, these wide- 

ranging, social animals are forced to live a life of severe deprivation, suffering lower life- 

expectancy and higher infant mortality than in the wild.” 19 

While some aquariums defend their desire to import whales on the basis that allowing 

people to see the whales in person will strengthen their desire to protect the animals in the wild, 

this defense is arguably a pretext for a desire to promote a profitable “amusement” for viewers, 

which is not in the best interests of beluga whales and far from the goal of conservation. 

Therefore, requiring Georgia Aquarium to conduct comparative research in this area, as a 

condition of permit issuance, will promote accountability, conversation, and minimal 

interference with intelligent and social animals. 

16 See generally Georgia Aquarium Applies for Permit to Import Wild-Captured Beluga Whales into the U.S., 

WHALE AND DOLPHIN CONSERVATION SOCIETY, http://www.wdcs-na.org/story_details.php?select=328 [hereinafter 

WDCS]. 

17 Application, supra note 1, at 1. 

18 Felicity Barringer, Opposition as Aquarium Seeks Import of Whales, NY TIMES (Oct. 9, 2012), 

http://www.nytimes.com/2012/10/10/science/earth/strong-opposition-to-aquariums-plan-to-import-belugawhales.html. 

19 Captivity, WHALE AND DOLPHIN CONSERVATION SOCIETY (last visited Oct. 27, 2012), 

http://www.wdcs.org/stop/captivity/index.php. 

7

B. A Permit Should Require the Georgia Aquarium to Conduct Research on 

Different Avenues of Beluga Whale Repopulation, such as Artificial 

Insemination, and Other Sources of Importation. 

The Georgia Aquarium should resolve to conduct research on different avenues of beluga 

whale repopulation, such as artificial insemination (discussed in detail in Part IV.B) and other 

sources of whale importation closer to the United States. In a 2005 permit granted to the Georgia 

Aquarium by NMFS for the importation of two captive-born beluga whales from a Mexican 

corporation, Grupo Empresarial Chapultepec, S.A., headquartered in Mexico City, the total 

transportation time for the whales was nine hours and fifteen minutes. 20 This journey, despite 

being stressful on the whales, is a much easier trip than the proposed transport of the whales 

from Russia to the United States. Indeed, the import application proposes that the beluga whales 

be transported with two flights, one flight from Anapa Airport in eastern Russia to Liege Airport 

in Belgium, and then a second flight from Belgium to the United States. 21 This journey would 

total approximately twenty-three to thirty hours, including movement on trucks, two planes, and 

more trucks. 22 Requiring the whales to be moved this distance with numerous transfers during 

the journey will be extremely stressful and traumatizing for the beluga whales. 

C. A Permit Should Prohibit the Georgia Aquarium from Selling Beluga 

Whales to Facilities that Will Use them for Other than Conservation 

Purposes and Require the Submission of an Annual Report to NMFS on the 

Condition of the Whales. 

A permit should prohibit the Georgia Aquarium from selling the imported beluga whales to 

other facilities unless NMFS approves them to publically display marine mammals and the 

facility has an APHIS license for the care and maintenance of beluga whales. NMFS made a 

20 See Notice of Issuance of MMPA Permit No. 1078-1796, 70 Fed. Reg. 197 (Oct. 13, 2005), see also Application 

for a Permit for Public Display under the Marine Mammal Protection Act (June 20, 2005), available at 

www.nmfs.noaa.gov/pr/pdfs/permits/1078-1796_application.pdf. 

21 See Application, supra note 1, at 1. 

22 Id. at 1. 

8

similar restriction in Permit 1078-1796 issued in 2005 for the importation of two beluga whales 

by the Georgia Aquarium from Mexican facilities. 23 This requirement is meant to ensure that the 

imported whales do not end up being sold to facilities that maintain substandard or adverse 

conditions for animals in their care. In addition, in order to ensure the future welfare of the 

imported whales, the permit should require the Georgia Aquarium to prepare and submit to 

NMFS an annual report on the current condition of each of the eighteen whales. Further, upon 

the request of NMFS, the Georgia Aquarium should make available for inspection records, 

facilities, marine mammals, and any other information related to any inspection of records 

associated with this permit. Submission of a similar annual report was required of the permit 

holder in the permit granted in March 2007 by NMFS to the Alliance of Marine Mammal Parks 

and Aquariums concerning whales and whale parts imported for scientific research. 24 Such a 

report will allow the NMFS to remain aware of the conditions of the imported beluga whales and 

the status of their well-being. 

III. NMFS Should Not Include Any Representations in the Final Environmental 

Assessment that a Categorical Exclusion (CE) Is Sufficient for this Action, Rather 

the Final EA Should Explain Why a CE Would Be Insufficient. 

The National Environmental Policy Act (“NEPA”) is a federal law that requires federal 

agencies to consider the environmental impacts of major federal action during the decision- 

making process. 25 A “major federal action” is any action “with effects that may be major and 

which are potentially subject to Federal control and responsibility.” 26 Here, the major federal 

action under consideration by NMFS is the issuance of an MMPA permit for the import of 

23 See Application for Permit 1078-1796, supra note 20. 

24 See MMPA Permit No. 1076-1789 at 6–7 (Mar. 14, 2007), available at 

www.nmfs.noaa.gov/pr/pdfs/permits/1076-1789_permit1.pdf. 

25 NOAA, THE NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION NATIONAL ENVIRONMENTAL POLICY ACT 

HANDBOOK 12 (2009), available at http://www.nepa.noaa.gov/NEPA_HANDBOOK.pdf [hereinafter NOAA NEPA 

HANDBOOK]. 

26 40 C.F.R. § 1508.18. 

9

eighteen beluga whales from Russia to the Georgia Aquarium, Shedd Aquarium, Sea World of 

Florida, Sea World of Texas, and Sea World of California for the purpose of public display. 27 

As a major federal action, MMPA permit issuance by NMFS is subject to NEPA review, 

which requires one of three levels of NEPA analysis: (1) a categorical exclusion (“CE”); (2) an 

environmental assessment (“EA”); or (3) an environmental impact statement (“EIS”). 28 A CE 

applies if the action does not “individually or cumulatively have a significant impact on the 

human environment” and the category of action has been documented as a CE by the federal 

agency. 29 To satisfy the NEPA CE requirements, an agency must discuss the appropriateness of 

the CE, considering: (1) whether prior NEPA analysis for the “same action demonstrated that the 

action will not have significant impacts on the quality of the human environment;” 30 (2) whether 

the proposed action is likely to result in significant impacts; 31 and (3) whether any exceptions to 

CEs apply. 32 Finally, if NMFS finds that a CE is appropriate, it must produce a CE 

memorandum. 33 

A. A CE Level of NEPA Analysis is Insufficient for this Proposed Action, and 

the Final EA Should Address this. 

Although NMFS has prepared a Draft EA, the agency asserts that this action—issuance 

of an MMPA import permit for the purpose of public display—falls under a NEPA CE pursuant 

to NOAA Administrative Order 216-6. 34 NMFS’s CE determination, however, was made 

without the requisite consideration of: (1) prior NEPA analysis for the “same action,” and (2) 

27 

NMFS, Draft Environmental Assessment For Issuance of Permit No. 17324 for the Importation of Beluga Whales 

for Public Display Purposes, 4 (Aug. 2012), available at 

http://www.nmfs.noaa.gov/pr/permits/sci_res_pdfs/17324_draft_ea.pdf [hereinafter Draft EA]. 

28 

NOAA NEPA HANDBOOK, supra note 25. 

29 

Id. 

30 

NOAA Admin. Order 216-6, § 5.05b (May 20, 1999), available at http://www.nepa.noaa.gov/NAO216_6.pdf 

[hereinafter NOAA Order 216-6]. 

31 

Id. 

32 

Id. § 5.05c. 

33 

NOAA NEPA HANDBOOK, supra note 25, at 25. 

34 

Draft EA, supra note 27; NOAA Order 216-6, supra note 30, § 6.03f.2(a), 46–47. 

10

significant impacts of the proposed action, including CE exception consideration. Consideration 

of these factors demonstrates that it is clearly inappropriate to apply a CE to this action. 

Therefore, all representations in the Draft EA that a CE would have been sufficient NEPA 

analysis are misleading and should not be included in the Final EA. 

1. The Draft EA Fails to Consider Whether Prior NEPA Analysis for the 

“Same Action” Demonstrated that the Action Will Not Have Significant 

Impacts on the Quality of the Human Environment. 

First, the Draft EA fails to consider whether prior NEPA analysis for the “same action 

demonstrated that the action will not have significant impacts on the quality of the human 

environment. 35 NOAA guidance for determining that an action is the “same” includes 

consideration of “nature of the action, the geographic area of the action, the species affected, the 

season, [and] the size of the area.” 36 Here, the Agency’s only discussion of prior NEPA analysis 

is a conclusory statement that “there is no evidence from prior analyses of the effects of permit 

issuance that issuance of permits for importation of marine mammals for the purposes of public 

display results in adverse effects on stocks or species.” 37 It is unknown what prior NEPA 

analysis NMFS considered, and whether it was for the “same” action. 

It is extremely improbable that NMFS considered the “same” action since eighteen years 

have passed without any imports of wild-captured cetaceans by U.S. facilities. 38 Additionally, it 

is questionable how reliable or pertinent any prior NEPA analysis could be, given that the most 

35 

NOAA Order 216-6, supra note 30, § 5.05b, 23. 

36 

Id. 

37 

Draft EA, supra note 27, at 4. 

38 

WDCS, supra note 16. Whales, dolphins, and porpoises belong to the order Cetacea, which includes carnivorous 

marine mammals. What is a Cetacean, HEBRIDIAN WHALE & DOLPHIN TRUST (last visited Oct. 28, 2012), 

http://www.whaledolphintrust.co.uk/species-what-is-a-cetacean.asp. It is clear that there is no “same” action or even 

similar action for comparison to the current import decision, because not only has there not been a wild beluga 

whale import in the past eighteen years, there has not been an import of any wild-captured cetacean over the past 

eighteen years. WDCS, supra note 16. 

11

ecent wild-captured cetacean import analysis is almost two decades old, 39 and that in 1989 

NMFS called for a voluntary moratorium for the capture of bottlenose dolphins because of the 

lack of information about wild populations. 40 Finally, past wild-caught cetaceans that were 

imported into the United States and underwent prior NEPA import analysis were “rescues from 

inadequate facilities, resulted from strandings, or were imported after decades in captive facilities 

elsewhere.” 41 The eighteen beluga whales here do not fit any of these three categories making it 

unlikely that prior NEPA analysis was undertaken for the “same” action that is proposed here. 

NMFS’s CE determination, therefore, is legally inadequate, as it was made without 

consideration of prior NEPA analysis for the “same action.” The agency should explain what 

prior NEPA analysis it is relying upon. If there is no previous NEPA analysis for the “same” 

action that is currently proposed, NMFS should disclose this fact. On the other hand, if NMFS is 

relying on prior NEPA analysis for the “same action,” it should explain why it considers certain 

prior actions to be similar to this proposed action. 

2. The Draft EA Fails to Consider Whether the Proposed Action Is Likely 

to Result in “Significant” Impacts Before Asserting that a CE Could 

Apply to this Action. 

Second, the Draft EA fails to consider whether the proposed action would be likely to 

result in “significant” impacts before asserting that a CE could apply to this action. Significance 

is a two-part inquiry into the action’s “context” and “intensity.” 42 The context inquiry requires 

that the action’s significance “be analyzed in several contexts such as . . . the affected region . . . 

39 WDCS, supra note 16. 

40 Id. NMFS’s 1989 moratorium was imposed because of the lack of information about wild bottlenose dolphins in 

U.S. waters. There was a lack of information despite the fact that the actions affecting dolphins were taking place in 

the United States, where it would presumably be easier to gather information on wild populations than in Russian 

waters, where this proposed action has potentially serious adverse consequences. This is a clear example of the 

difficulty of gathering adequate information about wild cetacean populations for capture and import purposes, even 

when the proposed action takes place in the United States. 

41 Id. 

42 40 C.F.R. § 1508.27. 

12

and the locality . . . [including] short- and long-term effects.” 43 The intensity inquiry focuses on 

the “severity of the impact.” 44 The following are pertinent considerations for determining the 

severity of the impact: (1) the “degree to which effects on the human environment are likely to 

be highly controversial”; (2) the “degree to which effects are highly uncertain or involve unique 

or unknown risks”; (3) the “degree to which the action establishes a precedent for future actions 

with significant effects or represents a decision in principle about a future consideration”; and (4) 

whether the action may result in “cumulatively significant impacts.” 45 These factors are the 

same that must be considered when deciding whether any exceptions to CEs apply. 46 

a. The Draft EA Fails to Consider the Context of the Proposed 

Action. 

The Draft EA fails to consider the context of the proposed action. The Draft EA restricts 

the action area to “the captive facilities that currently hold the beluga whales [UMMRS] and 

those that will receive the beluga whales [five U.S. public display facilities], on the rationale that 

“[n]o activities are being proposed in the wild.” 47 NMFS, therefore, ignores that the context 

inquiry requires assessment of long and short-term impacts in the local and region where the 

action is taking place. The only reason an import permit can even be considered is because 

whales have been captured from the wild for import. Segregating the purchase and import of 

wild-caught whales from the wild-capture of the whales and the associated environmental 

impacts ignores the context inquiry that NEPA mandates. 

The Final EA should address the impacts of the proposed action on wild whales in the 

region. The Agency’s cursory discussion of wild beluga whales in the region is an inadequate 

43 Id. § 1508.27(a). 

44 Id. § 1508.27(b). 

45 Id. § 1508.27. 

46 NOAA Order 216-6, supra note 30, § 5.05c, 23. 

47 Draft EA, supra note 27, at 12. 

13

consideration of the context of the proposed action. First, NMFS failed to consider the full 

context of the proposed action by only considering the mean number of beluga whales captured 

from the Sakhalin-Amur Estuary over eleven years, 48 instead of the actual number of beluga 

whales captured in the Sakhalin-Amur Estuary, the Shantar Sea, and Sheilkov Bay (the three 

provisional stocks in the Sea of Okhotsk). NMFS admits that the “[g]enetic analysis of the three 

Sea of Okhotsk stocks supports both theories of a single stock and multiple stocks within this 

region.” 49 NMFS, therefore, should have assessed the actual number of whales caught annually 

from each of the three stocks, as well as an annual aggregate of the actual number of whales 

caught from the three stocks combined. This would ensure an adequate baseline to consider the 

local and regional impacts of the wild-capture and international sale of beluga whales. 

NMFS also ignored the full context of the action by only assessing compliance with the 

aggregate Potential Biological Removal level (“PBR”) of eighty-six whales for Sakhalin and 

Shantar Bays, instead of the individual PBRs for Skhalin Bay beluga whales (twenty-nine to 

thirty whales) and Shantar Bay beluga whales (thirty-two whales). 50 NMFS only notes that “[i]f 

the Sakhalin and Shantar aggregations are considered as one stock, the annual quota set and the 

actual collection from the wild falls below the analytical PBR of [eighty-six whales].” 51 This 

assessment, however, ignores that if Sakhalin and Shantar stocks are considered separate stocks, 

which NMFS admits is possible, 52 then the actual annual capture of whales has exceeded the 

Sakhalin PBR up to three times in the past eleven years. 53 Exceeding the PBR could have 

48 Id. 

49 Id. at 8. 

50 Id. at 11. 

51 Id. at 12. 

52 Id. at 8 

53 Id. at 12. 

14

negative effects on the regional beluga whale population and its ecosystem. NMFS should have 

considered this full context of the proposed action in the EA. 

b. The Draft EA Fails to Consider the Intensity of the Proposed 

Action by Inadequately Considering the “Cumulative Impact” of 

the Action. 

The Draft EA also fails to consider the intensity of the proposed action by inadequately 

considering the “cumulative impact” of the action. A cumulative impact is the “impact on the 

environment which results from the incremental impact of the action when added to other past, 

present, and reasonably foreseeable future actions, regardless of what agency or person 

undertakes such other actions.” 54 An impact is “synonymous” with “effect,” which includes both 

direct and indirect effects that are “caused by the action and are later in time or farther removed 

in distance, but are still reasonably foreseeable.” 55 An assessment of cumulative effects in this 

case requires NMFS to consider the environmental consequences of past wild-beluga captures 

and imports, present captures and imports, and reasonably future foreseeable wild-captures and 

imports, even if those capture and imports are undertaken by other actors—such as the Russian 

actors in this case. 

There are past, present, and reasonably foreseeable future captures and imports that this 

Draft EA does not discuss. The Draft EA merely states that since all of the U.S. facilities will be 

sharing the eighteen beluga whales sought for import, “it is extremely unlikely, but not 

impossible, for other marine mammal facilities to request a similar permit in the future.” 56 This 

is a conclusory assertion, with analysis that only focuses on the demand of beluga whales from 

the United States. In just the past eleven years, however, Canada alone has imported thirty-six 

54 40 C.F.R. § 1508.7. 

55 Id. § 1508.8. 


15

wild-caught beluga whales from Russia. 57 A large number of these whales have been females, 

which is a special cause for concern. 58 Additionally, no scientific surveys were conducted to 

assess the impact of these wild-captures and imports. 59 Furthermore, China, Thailand, Egypt, 

Taiwan, Bahrain, and Turkey have also recently imported beluga whales from Russia. 60 The 

current action proposes the import of eighteen beluga whales to the United States. The 

reasonably foreseeable future implication of all these imports from Russia is that it will restock 

its captive supply by capturing more beluga whales from the wild. 61 Presumably, Russia sees its 

beluga whales as a resource for revenue. 62 The Draft EA asserts that “an adverse effect on . . . a 

small group of animals does not translate into an adverse effect on the population or species 

unless it results in . . . an appreciable reduction in the likelihood of survival or recovery for the 

species.” 63 The EA, however, fails to recognize that the actual number of beluga whales taken 

each year from the Sakhalin-Amur Stock has drastically increased from ten whales in 2000, to 

thirty-three in 2011—the highest number of beluga whale takes from the stock in the past eleven 

years. 64 This high number also happens to be over the PBR established for this stock, which will 

perhaps cause the stock to fall below its optimum sustainable population, reducing the likelihood 

of survival of the species, especially if the number of takes continue to increase as they have over 

the past eleven years. The Final EA, therefore, needs to address these past, present, and future 

demands on beluga whales. 

57 

THE HUMANE SOCIETY OF THE UNITED STATES, THE CASE AGAINST MARINE CAPTIVITY 9 (2009), 

http://www.humanesociety.org/assets/pdfs/marine_mammals/case_against_marine_captivity.pdf. 

58 

Id. 

59 

Id. 

60 

Id. at 10. 

61 

WDCS Campaign Launched to Stop U.S. Import of Eighteen Beluga Whales, WHALE AND DOLPHIN 

CONSERVATION SOCIETY, http://www.wdcs.org/news_int.php?select=1312. 

62 

HSUS, supra note 57, at 10. 


64 Id. at 12. 

16

c. The Draft EA Fails to Consider the Intensity of the Proposed 

Action by Inadequately Considering the “Degree to Which Effects 

are Highly Uncertain or Involve Unique or Unknown Risks.” 

Second, the Draft EA does not adequately consider the “degree to which effects are 

highly uncertain or involve unique or unknown risks.” 65 The major deficiency is the agency’s 

failure to conduct its own analysis of the data, creating uncertainty around the raw data and PBR 

calculations that were performed by the permit applicant. 66 NMFS does not discuss any attempts 

to collect any raw data or additional studies on beluga whales in the affected region outside of 

what the permit applicant provided. Furthermore, the Draft EA recognized that the “[g]enetic 

analysis of the three Sea of Okhotsk stocks supports both theories of a single stock and multiple 

stocks within this region,” 67 but the Draft EA does not assess the impacts at both the single stock 

and multiple stock levels, despite the uncertainty on this issue. Finally, the Draft EA asserts that 

“the importation of these animals is not expected to impact the annual quota for live beluga 

captures set by the Russian government,” 68 but there is no discussion for the rationale behind this 

assumption. The impact of United States actions on Russia’s capture program is a large 

unknown risk not adequately assessed. The lack of additional data and thorough analysis makes 

the effects of this proposed action seem highly uncertain. The Final EA should include a more 

thorough analysis, and, if infeasible, NMFS should clearly state that the proposed action has 

unknown risks. 

65 40 C.F.R. § 1508.27. 


67 Id. at 8. 

68 Id. at 13. 

17

d. The Draft EA Fails to Consider the Intensity of the Proposed 

Action by Inaccurately Assessing the “Degree to Which Effects on 

the Human Environment are Likely to be Highly Controversial.” 

Third, the Draft EA inaccurately assesses the “degree to which effects on the human 

environment are likely to be highly controversial.” 69 While courts have not defined any test to 

determine what qualifies as “highly controversial,” the Ninth Circuit has previously held that 

where a Sea World MMPA permit application to capture killer whales “reveals the arguable 

existence of ‘public controversy based on potential environmental consequences,’” the agency 

must explain why points raised by public comment do not suffice to create a public 

controversy. 70 In the prior Ninth Circuit case, the points presented by public comment which the 

court believed created an “arguable” public controversy included concerns similar to those 

presented for this proposed action, including: (1) the inability of captured whales to perform their 

ecological roles in captivity, undercutting the United States position against whaling; (2) whales’ 

shortened life-span in captivity, encouraging further exploitation by issuing permits; (3) and 

long-term impacts on wild populations. 71 

Here, the Draft EA states that “issuance of the permit is not expected to be controversial 

based on potential environmental impacts.” 72 There is intense public sentiment, however, over 

the environmental impacts associated with wild-capture and display of live cetaceans. 73 The 

Cetacean Specialist Group of the International Union for Conservation of Nature indicates that 

“removal of live cetaceans from the wild, for captive display and/or research, is equivalent to 

incidental or deliberate killing, as the animals are no longer available to help maintain their 

69 

40 C.F.R. § 1508.27. 

70 

Jones v. Gordon, 792 F.2d 821, 828–29 (9th Cir. 1986). 

71 

Id. 

72 

Draft EA, supra note 27, at 14. 

73 

WDCS, supra note 16. 

18

natural populations.” 74 Furthermore, captive breeding operations have not resulted in any “return 

of animals and genetic material back to the wild to aid in the conservation” of beluga whales. 75 

The removal of individual whales from the wild also hurts the social cohesion of wild 

populations. 76 The capture can also cause physical harm and distress to the wild populations left 

behind, and these environmental consequences are largely unexplored. 77 Finally, the Draft EA 

does not discuss these controversial potential environmental impacts, even though NMFS is 

aware of the public pressure and opposition associated with wild-cetacean capture, and the 

agency even called for a voluntary moratorium in 1989 for the capture of bottlenose dolphins in 

the Gulf of Mexico and along the U.S. Atlantic coast. 78 The Final EA should adequately assess 

the public controversy over the proposed action. 

e. The Draft EA Fails to Consider the Intensity of the Proposed 

Action By Not Discussing the “Degree to Which the Action 

Establishes a Precedent for Future Actions with Significant Effects 

or Represents a Decision in Principle about a Future 

Consideration.” 

Finally, the Draft EA inadequately assesses the intensity of the proposed action because it 

fails to discuss the “degree to which the action establishes a precedent for future actions with 

significant effects or represents a decision in principle about a future consideration.” NMFS 

approval of this import permit would do both. The Agency’s cursory and inadequate analysis of 

the action, despite that there have been no imports of wild-captured cetaceans for U.S. facilities 

since 1993, 79 establishes a decision in principle that future considerations of wild-capture 

imports can be just as cursory. Such an inadequate EA, and attempts to write the action off as a 

74 Id. 

75 Id. 

76 Id. 

77 Id. 

78 Id. 

79 Id. 

19

CE, should not be employed when the proposed action is somewhat novel. Past wild-caught 

cetaceans that were imported into the U.S. and underwent prior NEPA import analysis were 

“rescues from inadequate facilities, resulted from strandings, or were imported after decades in 

captive facilities elsewhere.” 80 In stark contrast, the eighteen whales at issue here were 

intentionally captured for sale and were only recently captured. 81 Additionally, the failure of 

NMFS to explore the full context of the imports of wild-caught whales, which includes the 

capture of whales from the wild, establishes a precedent for future actions with similarly 

significant effects. Creation of such precedent is unacceptable, and makes clear that a CE level 

of NEPA analysis is insufficient for this proposed action. A Draft EA was clearly required for 

this action, and therefore, all representations in the Draft EA that a CE would have been 

sufficient NEPA analysis are misleading and should not be included in a Final EA. 

IV. The EA is Inadequate Because it Fails to Consider Reasonable Alternatives, 

Including Authorizing the Import Permit From a Closer Facility, Allowing Import 

of Beluga Whale Sperm for Artificial Insemination, Instead of Whales, and 

Requiring the Import of Fewer Whales Along with Sperm. 

Since a CE is clearly not appropriate in this case, the next level of NEPA review required 

is an EA. An EA must analyze the environmental impacts of the action, along with a comparison 

of reasonable action alternatives, and explain whether an EIS or “finding of no signification 

impact” (“FONSI”) is appropriate. Under NOAA’s own policies, “reasonable alternatives” are 

those that may be feasibly carried out based on technical, economic, environmental and other 

factors. 82 Under CEQ regulations, the alternatives analysis of the EA should: (a) “rigorously 

explore and objectively evaluate all reasonable alternatives”; (b) “devote substantial treatment to 

each alternative considered in detail . . . so that reviewers may evaluate their comparative 

80 Id. 


82 NOAA NEPA HANDBOOK, supra note 25, at 35. 

20

enefits”; (c) include reasonable alternatives not within the jurisdiction of NOAA; and (d) 

include the no action alternative. 83 

The Draft EA of the Georgia Aquarium’s permit application considers only one potential 

alternative to granting the permit—the “no-action” alternative. 84 As Georgia Aquarium admits 

in Appendix E of its application, however, a wide range of potential alternatives to either of these 

courses of action exist. 85 Because of the existence of alternatives that would impose less 

physical harm, and pose fewer medical risks, to captive beluga whales, while nonetheless 

achieving the stated purposes of Georgia Aquarium’s application, NMFS should not grant this 

application for an MMPA import permit. 

A. Authorizing the Import Permit from a Safer Location Such as Marineland of 

Canada is a Reasonable Alternative Given the Substantial Harm that the 

Whales Imported from Russia Would Experience, as well as the Number of 

Whales in Canada and their Conditions. 

Georgia Aquarium states that the purpose of the contemplated permit activity is to import 

the whales “for public display to enhance the North American beluga breeding cooperative by 

increasing the population base of captive beluga whales to a self-sustaining level and to promote 

conservation and education.” 86 The potential benefits of “increasing the population base of 

captive beluga whales” through this importation are quite probably only marginally greater than 

under the “no-action” option. But all of these goals—public display, population increase, 

promotion of conservation, and education—can be at least equally well-achieved through the 

importation of beluga whales already on public display in North America, with fewer animal 

welfare costs. 

83 40 C.F.R. § 1502.14 


85 Application, supra note 1, at E1–24. 

86 Id. at 1. 

21

1. The Transportation of Beluga Whales Results in Harm to the Animals 

and Presents Substantial Risks to their Medical Well-being. 

It is widely understood that, amongst mammals generally, bodily responses to the stress 

of transportation are associated with impaired immune defenses and predisposition to disease. 87 

In particular, as the Georgia Aquarium admits in its application, research into the capture and 

handling stress experienced by cetaceans such as the beluga whale indicates that they experience 

immediate thyroid imbalances as a result of capture, which persist throughout the time spent in 

captivity and adversely affect the animal’s immune system. 88 While chronic stress appears to 

account for unexpectedly generally low thyroid hormone levels in some captive cetaceans, 89 

acute stress, of the sort associated with handling encounters, has been found to have “profound 

effects on thyroid hormone balance.” 90 Transportation of beluga whales leads to elevations of 

cortisol, which mediates physiological changes resulting in neutrophilia, eosinopenia, and 

lymphopenia (blood disorders associated with acute infection or acute stress). 91 It should be 

noted that one of the leading studies making this finding with respect to beluga whales involved 

transporting them in slings over land for fifteen kilometers, in contrast to the air journey halfway 

around the world proposed by the Georgia Aquarium. 92 

87 

See, e.g., J.J. Jones, Effects of Transport on Stress and Disease in Horses, 4 WORLD. EQUINE. VET. REV. 15 

(1999); H. Murata et al., The Effects of Road Transportation on Peripheral Blood Lymphocyte Blastogenesis and 

Neutrophil Function in Calves, 143 BR. VET. J. 166 (1987); M. Oikawa, et al., Pathology of Equine Respiratory 

Disease Occurring in Association with Transport, 113 J. COMP. PATHOL. 29 (1995); C.L. Stull & A.V. Rodiek, 

Physiological Response of Horses to 24 Hours of Transportation Using a Commercial Van During Summer 

Conditions, 78 J. ANIM. SCI. 1458 (2000); Katsura Noda et al., Relationship Between Transportation Stress and 

Polymorphonuclear Cell Functions of Bottlenose Dolphins, 69 J. VET. MED. SCI. 379 (2007). 

88 

D.J. St. Aubin & J.R. Geraci, Capture and Handling Stress Suppresses Circulating Levels of Thyroxine (T4) and 

Triiodothyronine (T3) in Beluga Whales Delphinapterus Leucas, 61 PHYSIOL. ZOOL. 170–75 (1988). 

89 

S.H. Ridgway & G.S. Patton, Dolphin Thyroid: Some Anatomical and Physiological Findings, 71 Z. 

VERGLEICHENDE PHYSIOL. 129 (1971). 

90 

St. Aubin, supra note 88, at 174 (emphasis added). 

91 

D.J. St. Aubin & J.R. Geraci, Adaptive Changes in Hematologic and Plasma Chemical Constituents in Captive 

Beluga Whales, Delphinapterus Leucas, 46 CAN. J. FISH. AQUAT. SCI. 796, 801 (1989). 

92 

Id. at 797. 

22

Furthermore—and uniquely relevant to the lengthy plane rides at issue here—noise has 

been found to act as a stressor to marine mammals; one study notes that “[a] range of issues may 

arise from the extended stress response including, but not limited to, suppression of reproduction 

(physiologically and behaviorally), accelerated aging, and sickness-like symptoms.” 93 It should 

be noted that none of the above cited studies, which indicate the acute stress effects on cetaceans 

of noise and travel, involved anything even close to the brutal transportation contemplated in this 

permit application, which would entail seventeen hours of air and land travel (not including the 

time between the various legs of the journey), with four transfers from one vehicle to another. 94 

2. The Importation of Beluga Whales From Marineland of Canada Would 

Impose a Substantially Reduced Toll on Animal Welfare. 

As an alternative to the Russian whales contemplated by this permit application, there 

are, as the Georgia Aquarium notes, thirty-nine captive beluga whales residing at Marineland of 

Canada, located in Niagara Falls, Ontario. While the distance between the whales’ proposed 

point of take-off at Anapa Airport in Anapa, Russia, to their first U.S. destination at New York 

City’s JFK Airport is 5,150 miles, the distance between Niagara Falls and New York City is 

approximately 700 miles, or roughly thirteen percent of the distance, and traversable by road. 

The Georgia Aquarium asserts that after dialogue with Marineland it determined that acquisition 

of any of these animals was “not a viable alternative” due to a “financially and philosophically” 

incompatible relationship between the aquariums. The Georgia Aquarium provides no details as 

to the financial limitations against which it purports to be balancing the significant animal 

welfare costs of importing from Russia. Furthermore, the well-publicized “deplorable 

conditions” at Marineland, suggest that additional animal welfare benefits might result from 

93 Andrew J. Wright et al., Do Marine Mammals Experience Stress Related to Anthropogenic Noise?, 20 INT’L J. 

COMP. PSYCH. 274, 290 (2007). 

94 Application, supra note 1, at 8. 

23

importing the Canadian whales. 95 At a minimum, NMFS should take into account the existence 

of this safer alternative in the Final EA, and the reasons for which the Georgia Aquarium so 

summarily dismisses it. 

B. Authorizing the Import of Beluga Whale Sperm, or Less than Eighteen 

Beluga Whales Along with Sperm, is a Reasonable Alternative Given Recent 

Breakthroughs in Frozen-Thawed Artificial Insemination Ignored by the 

Georgia Aquarium in its Application. 

A second reasonable alternative that NMFS should consider in the Final EA is either 

denying the permit, but authorizing the import of sperm from the beluga whales at Utrish Marine 

Mammal Research Station for artificial insemination (“AI”) or allowing the import of fewer 

whales and some amount of sperm. In its application for an MMPA import permit, the Georgia 

Aquarium discards the possibility of using AI to increase the viability of its captive breeding 

population for several reasons: (1) “AI methods for beluga whales are still being perfected, and 

are not effective enough to be relied upon as the sole source of population increase”; (2) “few or 

no male belugas outside of the United States have been trained to donate [sperm]”; (3) the 

“methods for semen collection of said foreign-held facilities may not meet the standards and 

practices that would be used as part of an [AI] program in the United States”; and (4) the “use of 

AI would not . . . satisfy the requirements set forth in the population models . . . needed to . . . 

increase the likelihood of future population growth.” 

The above reasons for discarding the alternative of importing sperm for AI are 

disingenuous and unpersuasive at best. First, while beluga whale AI research has not progressed 

as quickly as AI for other cetacean species due to “variations in beluga reproductive biology and 

difficulties in storing spermatozoa,” tremendous breakthroughs have been made in recent years. 

95 See, e.g., Dan Dakins, Niagara Falls Mayor Defends Marineland, CNEWS (Aug. 15, 2012), available at 

http://cnews.canoe.ca/CNEWS/Canada/2012/08/15/20105576.html (reporting a trainer’s accusations of heart 

conditions amongst animals, deteriorating water conditions, and staffing shortages). 

24

In 2008, the first successful AI with liquid-stored semen occurred, 96 as the Georgia Aquarium 

notes in its application. However, the Aquarium completely ignores the fact that in 2010, 

researchers in the United States reported the first successful application of AI using frozen- 

thawed semen in beluga whales. 97 The researchers reported a twenty percent rate of pregnancy 

(two out of ten inseminations), with one pregnancy resulting in twins (one calf was born stillborn 

and one successfully survived). 98 Other beluga whale AI research is rapidly progressing. 99 

Thus, contrary to the statements of the Georgia Aquarium in its application, it is more than just 

“theoretically possible to import semen from foreign-held beluga whales to be used in [AI] in the 

United States,” as the best science available shows that the necessary reproductive technology 

exists and has been successfully implemented. Second, the fact that few male beluga whales 

outside of the United States have been trained to donate sperm should not prevent the Georgia 

Aquarium from considering importing sperm for AI, as several papers from as early as 2003 

have demonstrated that males can be trained for voluntary semen collection. 100 Indeed, with the 

exception of the Pacific white-sided dolphin, “[h]igh quality ejaculates can be collected year- 

round from most cetaceans,” including beluga whales. 101 Third, it is unlikely given the number 

96 J.K. O’Brien et al., Semen Collection, Characterisation and Artificial Insemination in the Beluga (Delphinapterus 

Leucas) Using Liquid-Stored Spermatozoa, 20 REPRODUCTIVE FERTILITY DEV. 770–83 (2008). 

97 T.R. Robeck et al., Deep Intra-Uterine Artificial Inseminations Using Cryopreserved Spermatozoa in Beluga 

(Delphinapterus Leucas), 74 THERIOGENOLOGY 989, 990 (2010). 

98 Id. 

99 See e.g., Steven Osborn et al., Management of Twin Pregnancy and Perinatal Concerns in a Beluga 

(Delphinapterus Leucas), 43 J. ZOO & WILDLIFE MED. 193–96 (2012); K.J. Steinman et al., Characterization of the 

Estrous Cycle in Female Beluga (Delphinapterus Leucas) Using Urinary Endocrine Monitoring and 

Transabdominal Ultrasound: Evidence of Faculative Induced Ovulation, 175 GENERAL AND COMPARATIVE 

ENDOCRINOLOGY 389–97 (2012); J.K O’Brien et al., Preservation of Beluga (Delphinapterus Leucas) Spermatozoa 

Using a Trehalose-Based Cryodilutent and Directional Freezing Technology, 22 REPROD., FERTILITY, & DEVELOP. 

653–63 (2010). 

100 See e.g., Robeck, supra note 97, at 992; O’Brien, supra note 96; M. Graack & N. Grovhoug, Semen Collection 

Training with a Beluga Whale (Delphinapterus Leucas), in PROCEEDINGS OF THE INT’L MARINE ANIMAL TRAINER 

ASS’N 31–42 (2003). 

101 J.K. O’Brien et al., The Value of Ex Situ Cetacean Populations in Understanding Reproductive Physiology and 

Developing Assisted Reproductive Technology for Ex Situ and In Situ Species Management and Conservation 

Efforts, 23 INT’L J. COMPAR. PSYCHOLOGY 227, 230 (2010). 

25

of papers published on methods of beluga whale semen collection that the methods used on the 

belugas in Russia would not meet the standard and practices used in the United States. In 

addition, if Russian practices are a valid concern, it may be less expensive and more beneficial to 

send U.S. personnel trained in beluga whale semen collection to Russia. 

Finally, and most importantly, it is conceivable that AI could satisfy the requirements set 

forth in the population models of the Georgia Aquarium. Already, three beluga calves have been 

born using frozen-thawed sperm and “[n]o significant complications have resulted from any of 

the [over 150] cetacean AI procedures conducted.” 102 In addition, researchers expect the rate of 

successful inseminations using frozen-thawed sperm for beluga whales to approach fifty to 

seventy-five percent, as more inseminations are performed using a deep bicornual insemination 

method. 103 Moreover, researchers have stated AI using frozen-thawed sperm will “prove to 

be an important part of the overall effort to maintain healthy, sustainable [beluga] 

populations.” 104 Therefore, importing beluga whale sperm for AI or less than eighteen beluga 

whales with some sperm for AI are reasonable alternatives that the NMFS in the Final EA should 

analyze, particularly given its role as an expert agency in marine mammal conservation. Indeed, 

requiring the Georgia Aquarium to use AI to boost the captive beluga whale population would 

improve the state of AI research even further at a critical time in its development, and promote 

“[t]he goals of modern zoological institutions,” that, as researchers have stated, “are very 

different [from] their predecessors, whose sole purpose was for public display.” 105 

102 Id. at 235. 

103 Id. at 236. 

104 Robeck, supra note 97, at 999. 

105 O’Brien, supra note 101, at 228. 

26

Conclusion 

NMFS should carefully consider the application of the Georgia Aquarium for the import 

of eighteen beluga whales for the purposes of public display, as well as captive breeding. Beluga 

whales are intelligent and social animals and thus they should ordinarily remain in their natural 

environment and existing social structures. This is the first time since 1993 that a U.S. facility 

has sought to acquire wild-caught beluga whales for the purposes of public display. Given that 

the MMPA requires NMFS to consider the humaneness of capture and import of marine 

mammals such as beluga whales, consistent with the spirit of the MMPA and its delegated role 

as the national steward of marine mammals, NMFS should consider the message that granting 

this individual application will send to the international community. The message is that the 

wild-capture and global trade of beluga whales for the purposes of public display is acceptable, 

despite the significant animal welfare concerns discussed in this comment. 106 

Accordingly, for the foregoing reasons, GW Law AWP respectfully asks NMFS to deny 

the Georgia Aquarium’s application for a MMPA import permit for eighteen beluga whales for 

the purposes of public display. The failure of the Georgia Aquarium and its partner facilities to 

successfully breed and sustain beluga whales indicates a lack of sufficient expertise and 

resources and inadequate facilities to achieve the captive breeding goals stated in the application, 

a criterion of permit issuance under 50 C.F.R. § 216.34. Alternatively, if NMFS approves the 

application, it should place restrictions on the permit that will protect the welfare of the imported 

beluga whales and ensure that the purposes of the import and the MMPA are satisfied over the 

106 See e.g., Candace Calloway Whiting, Op-Ed., What Beluga Whales are Telling Us, SEATTLE POST INQUIRER (last 

visited Oct. 27, 2012) (detailing the aggressive behaviors such as “jaw-popping” that beluga whales often exhibit in 

captivity due to disturbances such as tapping on their glass enclosures), 

http://blog.seattlepi.com/candacewhiting/2012/10/24/what-beluga-whales-are-telling-us/ ; see also Brandon Keim, 

Georgia Aquarium Beluga Plan Raises Whale Culture Questions, WIRED SCIENCE, Oct. 26, 2012 (“Recurrent 

capture or removal from the same site could effectively or potentially have an effect on the local [beluga] 

community if there is one showing fidelity to this site.”) (quoting Dr. Robert Michaud, Dalhousie University), 

http://www.wired.com/wiredscience/2012/10/georgia-aquarium-belugas/. 

27

long term. Specifically, the permit should require the Georgia Aquarium to conduct research on 

the impacts of captivity on beluga whales and other avenues of beluga whale repopulation, the 

submission of an annual report to NMFS on the condition of the imported beluga whales, as well 

as prohibit the sale of the imported beluga whales to facilities that will use them for purposes 

other than conservation. 

Prior to making any final decision on the Georgia Aquarium permit application, however, 

NMFS must improve its analysis of the environmental impacts of the agency’s action in the Final 

EA. Under NEPA, an EA, which NMFS has completed a draft of, was clearly required for this 

action, and thus all representations in the Draft EA that a CE would have been sufficient NEPA 

analysis are misleading and should not be included in a Final EA. More importantly, the Draft 

EA is inadequate because it fails to consider reasonable alternatives within the jurisdiction of 

NMFS, including authorizing the import permit from a closer facility, allowing import of frozen 

beluga whale sperm for artificial insemination, instead of whales, and requiring the import of 

fewer whales along with sperm. NMFS should analyze these alternatives in the Final EA as it 

considers whether to deny the import application and/or impose restrictions on it. 

28

Respectfully submitted by: 

__________________________________ 

Joan E. Schaffner, Associate Professor of Law and Director, Animal Law Program 

The George Washington University Law School 

2000 H Street, NW, Washington, DC 20052 

(202) 994-7040 

__________________________________ 

Erin L. Sheley, Visiting Associate Professor 


2000 H Street, NW, Washington, DC 20052 

(202)-994-8494 

__________________________________ 

Tyler Sniff 

Administrative and Legislative Commenting Manager, Animal Welfare Project 


__________________________________ 

Jessica Kabaz-Gomez, Animal Welfare Project 


__________________________________ 

Ann Porter, Animal Welfare Project 


29

__________________________________ 

Emily Tone, Animal Welfare Project 


30

Beluga Whale Import Permit Comment - George Washington ...

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?