by David Kirby
First they went to see Keiko. Naomi was dismayed to see his undersize confinement. If anything, it seemed even more confining than it had in the movie. His tail was hitting the bottom of the shallow pool, which was not deep enough for him to breach completely out of the water. It only took three pumps of his flukes to propel him from one edge to the other. The bases of his pectoral fins were covered in thick layers of black, bumpy warts. It was depressing to even look at him.
The meeting itself was a formal affair with tea and cookies, attended by Mario Aguilar, Mexico’s minister of environmental affairs. JoBeth McDaniel, a writer for Life magazine who was doing a story on Keiko, was also invited.
Ken explained past protocols for the release of captive cetaceans, including killer whales from the US Navy, and whales that had been held in sea pens for a year or more before being set free. The Americans explained that Keiko’s proposed release program would meet every concern that Reino Aventura had expressed.
Porter and colleagues looked impressed. They liked the idea, they said. They voiced their agreement that Ken should direct a project to return Keiko to his native waters in the North Atlantic. Porter further agreed not to negotiate with any other group, including SeaWorld, for six months while Ken drew up an even more comprehensive protocol for Keiko. Porter promised to draft a letter of intention to spell out the agreement by September 15.2
Then, halfway through the meeting, the Mexicans were called away for an urgent phone call. They returned to the conference with entirely different expressions on their faces. Naomi shot Ken a look that said, “What the hell happened?”
“Thank you very much. We appreciate your coming all this way. We’ll take what you said under advisement,” Porter informed the confused Americans. His body language suggested that the meeting was over and it was time for the groups to go back to the States. Tea and cookies were canceled. Naomi was never able to confirm it, but she was certain that the phone call had come from SeaWorld. On the flight back to Washington, she realized she had been out of the country for a total of nineteen hours.
The next day, Vancouver Aquarium director John Nightingale sent a fax to Oscar Porter in Mexico informing him, “All institutions holding killer whales in North America have pledged to work together to solve the problem of providing better conditions for Keiko immediately.” That communication was followed up by another fax from the Alliance of Marine Mammal Parks and Aquariums to “reconfirm the commitment already made to ensure the health and well-being of Keiko.” Days later, Warner Bros. told Ken Balcomb they would not support his release protocol.
Then, on September 9, the Alliance issued a news release announcing its offer of “a comprehensive rescue program” for Keiko, stating that soon “a home will be provided for long term recovery.”
Naomi had waited long enough for a response from Porter. On September 13, after consulting with HSUS attorneys, she faxed him a letter demanding to know the status of both the “verbal commitment” and his promise to sign a written agreement by the fifteenth. “Events concerning Keiko’s future are proceeding quickly and our coalition would find it easier to respond to circumstances if we were able to clearly indicate that an agreement has been reached,” she wrote. HSUS wanted to issue a press release, in two days’ time, on September 15, she said, to announce the mutual agreement to rehabilitate and release Keiko.
She meant business. Naomi urged Porter to get back to her promptly “as we do not wish to proceed without your valuable input and cooperation.” She added, “These are exciting times for everyone who takes a special interest in the welfare of marine mammals.”
The next day, Naomi arrived at work to find a USA Today article in which she was quoted, and an urgent fax from Mexico City.
“Movie Star Trapped in Whale of a Hassle,” the USA Today headline blared.
“The popularity of the film Free Willy is fading along with summer memories, but the real Willy—a killer whale called Keiko—remains in hot water in a Mexico City marine park,” the article said, adding that animal activists were feuding with the film’s producers over Keiko’s fate. Meanwhile, Mexican officials were eager to see Keiko sent to a more appropriate habitat, “but that’s where all the agreement ends.”
But Naomi had upped the ante in the high-stakes game. “Negotiations with officials are very, very encouraging,” she told the newspaper.
Her encouragement was stomped on by a Warner Bros. executive, Rob Friedman, however. His company would never get involved with a proposal that would be “more injurious to this whale than his current situation,” Friedman said.
Naomi could not believe what she was reading. How could a long-term, comprehensive program to slowly reintroduce Keiko into the ocean possibly be worse that his eighty-degree, table-salt pool in Mexico? Warner Bros. had been grossly misinformed, she thought.
The studio would continue to “monitor” Keiko in Mexico, Friedman said, and “try to help him by getting coolers for his tank and looking for further opportunities.” Yeah, right, Naomi scoffed, “opportunities” like spending the rest of his life at SeaWorld.
Friedman said that Keiko’s lesions rendered his release impossible because he could infect wild whales. But Dr. Lanny Cornell—the former SeaWorld veterinarian who had been let go following the rash of orca attacks in San Diego in 1987—said the warts were the result of suboptimum water quality and temperature. In his estimation, they were not contagious to other whales.
The Mexico City fax, meanwhile, had come from Oscar Porter. Reino Aventura was not yet ready to sign a letter of intent. The fax confirmed her suspicion that SeaWorld and the Alliance had intervened while they were in Mexico City.
Porter said he tried to explain that the Alliance was in “the best position to provide us with all their support to optimize Keiko’s living and medical conditions, as well as to help get ready for the first stage of the preparation program for Keiko’s departure, that is to start cooling the water. We are requesting them to be more specific on this help.”
Once the agreement letter was ready, however, he would send it to Naomi and Ken.
“We have always stated our main interest is Keiko’s health and well-being, and we gladly accept any positive help offered for this purpose. I have verified that the Alliance is doing this without asking any promises from us. We expect the same … from your organization.”
Naomi wrote back immediately, expressing patience and conciliation. “We are grateful that the Alliance appears ready and willing to cooperate,” she wrote, adding that the park would soon be receiving letters of support from US and international groups “praising your decision two weeks ago to commit to a release program for Keiko.” She conceded that no release of Keiko would be authorized without the blessing of an international panel of experts who would “be chosen by our coalition and the Alliance.”
The days went by and no reply came from Mexico City. Ken wrote to Oscar Porter again, offering to help with logistics and even financing to improve conditions at Reino Aventura. If the Alliance of Marine Mammal Parks and Aquariums was going to help with water cooling and filtration, perhaps Ken’s group could arrange to fly in fresh Icelandic herring to help accommodate Keiko in his transition to native prey.
Porter gave Ken the brush-off. He said that recent medical reports had revealed a compromised immune system in Keiko. Until that was brought under control through chilled water, proper salinity, and a new filtration system provided by the Alliance—in another six months to a year—Keiko was not going anywhere. Once his health was deemed robust enough to travel, “we will decide where to relocate Keiko to continue with his rehabilitation program,” Porter wrote. “In due time, we will keep you updated.”
Reino Aventura had declined Ken’s offer of assistance, but Porter invited him to join a Keiko Working Group the park was forming.
Naomi’s heart sank when Ken faxed her a copy of the letter. What did he mean “in due time”? And what was this working group? That was not in the original commitmen
t. Clearly, SeaWorld and the Alliance had intervened well, she thought.
She was right. After the Free Keiko group had departed, the Mexicans were visited by executives from the Alliance, who made an offer of chilling and filtering the tank, and adjusting the salinity. They would also provide Keiko with a complete medical analysis and treatment for his skin condition. Only then would the park owners consider finding a location in the United States for his further rehabilitation “before reaching any decision pertaining to the reintroduction matter.”
Porter nonetheless encouraged Ken to continue his research in Iceland on genetics and orca calls to try to locate Keiko’s family, which Reino Aventura would be interested in reviewing “at some time in the future.” But at the same time, he noted that Ken’s coalition was raising money to finance the Keiko project and ordered him to stop doing so.
Ken was not amused. He had his attorney write to the Alliance, and to Busch Entertainment Corp., threatening legal action for “engaging in efforts, including possible defamatory conduct, to induce Reino Aventura to break its contract with the Center for Whale Research and, instead, allow you to obtain Keiko and prevent his release to the wild.”
Ken, Naomi, and the others were undeterred. In late October, Ken traveled to Iceland to collect DNA samples and orca recordings for comparison with Keiko’s own. Money was starting to come in for the project, including $5,000 raised by kids at one school in Tampa.
Meanwhile, Earth Island had convinced Warner Bros. to allow the conservation group to include Keiko information (including the release plan and information critical of captivity) in packets sent out to people calling the 800 number. The studio also agreed to a 900 number when the movie opened in the UK, to be managed by the Whale and Dolphin Conservation Society. All proceeds would go toward Keiko’s release effort.
It was a huge victory to have so much support from Warner Bros. SeaWorld and the Alliance could pick off HSUS and other animal groups, Naomi knew, but taking on Warner Bros. was another matter entirely. This was now a battle of wits between two huge entertainment conglomerates: Hollywood glitz versus St. Louis beer. Naomi had her money on Tinseltown.
Keiko’s release gained another boost in November, when Life magazine published its cover story, written by JoBeth McDaniel. Headlined “Won’t Somebody Please Save This Whale?” it described the horrible conditions for Keiko at Reino Aventura and detailed Ken’s release plan.
“Clearly bored and frustrated, he gnaws at the concrete walls of his prison. His teeth are worn down, and blood seeps from ragged abrasions on his chin,” McDaniel wrote. “Reared to swim in 40-degree arctic seas, Keiko is now required to give three strenuous performances a day in 80-degree water.” Keiko “lives in a cesspool,” McDaniel went on. “His tank has a weak filtration system that can’t handle the mass of excrement he releases; he must swim for hours in his own wastes before they are flushed away.”
Photos showed Keiko’s bloody lip from scratching the poolside. So many readers called the magazine wanting to help Keiko it had to open a dedicated phone line. Life received more calls about Keiko than any other story in the preceding decade.
Naomi was feeling confident. Donations were expected to total between $1 and $2 million by January or February of the new year. Michael Jackson, the pop star, had expressed an interest in the Free Keiko endeavor and planned to visit the whale during an upcoming “Dangerous” concert tour that would bring him to the Mexican capital. “I really think we should pursue that interest here at HSUS,” she said. “If Michael Jackson wants to fork over a million or so to help send Keiko back home,” then he should be fully encouraged, she said. (Naomi did not realize that Jackson wanted to bring Keiko home to his private Neverland Ranch outside Santa Barbara, California.)
“I don’t think Oscar Porter will be able to hold out against this tide of money and feeling for much longer,” Naomi predicted. “And when the movie opens in Mexico in December, he will be under enormous pressure to give in.” Only time would tell.
The media played up the battle between industry and activists. Ken Balcomb was happy to fuel the flames. “We suspected SeaWorld would do anything to block Keiko’s release,” he told the Los Angeles Times. “They stand to lose millions of dollars if a movie-star killer whale is released into the wild successfully and the public realizes there is no reason that whales need to be kept in captivity.”
Despite Reino Aventura’s claim that it had not ruled out releasing Keiko back to nature, Ken said that would never happen “as long as SeaWorld is in control.” He said the company did not want “a bunch of enviro-crazies like us maybe getting the public more interested in whales in the wild than whales as circus performers.” Indeed, the Mexican park was now denying it had entered into an agreement with the activists, even though they had videotaped the entire meeting at Reino Aventura.
SeaWorld’s Jim McBain jumped into the international mêlée, saying he had been involved with Keiko’s care since 1991. “I don’t think Ken Balcomb and the others had even heard of Keiko in 1991,” he told the Times. “As romantic a notion as it may sound, taking an animal like Keiko and doing the Born Free thing just isn’t realistic.”
Naomi also spoke to the media about the industry’s interference in the Keiko affair. “He could die tomorrow,” she told a reporter from Gannett News Service. “It was definitely an ambush so they could look like the knight in shining armor, rescuing Keiko. If they cared so much about him, why didn’t they do this three years ago?”
The Keiko saga was far from over; it was just getting started.
20
Protection
Up until the early 1970s, marine mammals were having a hard time in the United States and its territorial waters. Pollution and coastal development had threatened entire populations; polar bear, seal, and sea otter communities had been decimated by hunting and trapping; whaling operations were still in business on both coasts; tens of thousands of dolphins were dying in tuna nets; and aquariums, marine parks, and research teams had culled hundreds of mammals from the ocean without federal permits or rules governing their care and transportation.
Onshore, things were little better. Marine mammals were bought and sold like commodities, to be displayed at zoos, theme parks, aquariums, and roadside attractions that were often second-rate, and even at trade shows such as the boat show that had bought Skana in 1967 and tried to force-feed her raw hamburger. Uncounted numbers of animals were held in substandard environments: tiny and sometimes filthy tanks and pens, often overcrowded with sick and neurotic creatures.
Meanwhile, huge gaps existed in knowledge about most marine mammals, their natural histories, and their ecological importance.
Congress took note. Cetaceans, pinnipeds, manatees, sea otters, even polar bears—all mammals that were essentially tied to the marine environment—deserved federal protection, many lawmakers now believed. Their growing appreciation of these species as living beings—creatures of beauty and an international resource to be treasured and studied, rather than hunted, harassed, and abused—led to the landmark Marine Mammal Protection Act (MMPA) of 1972.
Under the act, it became a felony for anyone to “take” marine mammals from US waters, or for any US citizen to take these protected species from the high seas. Congress broadly defined “taking” as the commission or even attempted commission of “any act of hunting, capture, and/or harassment of any marine mammal.” The MMPA also prohibited the importation of marine mammals or marine mammal products, among many other provisions.
The intent of the bill was to protect mammal species in the oceans, but Congress also specified that a small and regulated number of mammals could be taken for the purposes of public display, scientific research, or conservation, or incidentally during certain important activities such as commercial fishing or oil and gas exploration and extraction.
Under the act, marine mammals from nondepleted stocks could be captured or imported into the United States for public display, with certain restriction
s. The bill authorized NMFS to issue permits only to those facilities that the secretary of commerce deemed to have “acceptable” programs of conservation or public education. Display venues also had to meet the minimum requirements for care and maintenance for animals in their custody, as set forth by the Animal Welfare Act of 1966.
Clearly, Congress felt that captivity for these species was justified as long as it benefited the public and the animals, through research, conservation, and education—and as long as marine mammals were treated according to federal standards on animal well-being.
The MMPA was written to be reauthorized roughly every four years, which generally led to a number of amendments being fought over by various parties, leading to deletions and additions to the law. When Naomi began working at the Humane Society of the United States in May of 1993, negotiations on the next reauthorization were well under way. She was fully expected to get herself up to speed and conversant on the legislation, its history, and the intent on both sides of various issues, including captivity, to propose changes this time around.
It was a daunting education. Naomi went back to the HSUS files for a quick primer on the legislation, and how it had been conceived, implemented, and amended over the years.
On the captivity issue, she found a mess of federal departments, agencies, commissions, and services entangled in a typically bureaucratic jumble. Sorting through what Congress had originally intended for the law was difficult, and competing and overlapping government entities had interpreted that intent differently.
To begin with, the management of marine mammals in the wild was divided between NMFS—an agency of the Commerce Department’s National Oceanic and Atmospheric Administration (NOAA)—and the US Fish and Wildlife Service of the Department of the Interior. NMFS took jurisdiction over whales, dolphins, porpoises, and all pinnipeds except (for some odd reason) walruses, while Fish and Wildlife handled walruses, sea otters, polar bears, manatees, and a related species known as the dugong.