Case 1:16-cv-24793-MGC Document 83 Entered on FLSD Docket 09/30/2017 Page 1 of 4

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 16-24793-Civ-COOKE/TORRES

PEOPLE FOR THE ETHICAL TREATMENT

OF ANIMALS, INC., ANIMAL LEGAL DEFENSE FUND,
ORCA NETWORK and HOWARD GARRETT,

Plaintiffs,

vs.

UNITED STATES DEPARTMENT OF

AGRICULTURE, ELIZABETH GOLDENTYER,
in her official capacity as Director of Animal
Welfare Operations for the Eastern Region of the
United States Department of Agriculture Animal
and Plant Health Inspection Service and FESTIVAL
FUN PARKS, LLC d/b/a MIAMI SEAQUARIUM,

Defendants.
___________________________________________/
ORDER TO SHOW CAUSE
This is an action under the Administrative Procedures Act, 5 U.S.C. 701-706
(APA). Plaintiffs challenge action taken by Defendants under the Animal Welfare Act, 7
U.S.C. 2131 et seq. (AWA), and the controlling regulations promulgated, 9 C.F.R. 2.1 et
seq., and policies implemented, thereunder. Plaintiffs dispute the decision by Defendant
United States Department of Agriculture (USDA) to license Defendant Miami Seaquarium
(Seaquarium) which exhibits the orca, Lolita as an additional site under the AWA
license of Festival Fun Parks, LLC d/b/a Palace Entertainment.
Pending are (1) Defendant-Intervenor Festival Fun Parks, LLC d/b/a Miami
Seaquariums (FFP) Motion to Dismiss (ECF No. 64), and (2) Defendants United States
Department of Agriculture, et al.s (USDA) Motion to Dismiss for Lack of Subject Matter
Jurisdiction (ECF No. 66). For the reasons that follow, I defer ruling on the pending Motions
until after the parties have submitted responses to the questions outlined below.
BACKGROUND
The USDA describes its enforcement of the AWA as follows:
The Animal Welfare Act . . . passed by Congress in 1966, set Federal

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standards for care and treatment of certain warm-blooded animals bred

for commercial sale, used in research, transported commercially, or
exhibited to the public. Facilities which fall into these categories must
provide their animals with adequate care and treatment in the areas of
housing, handling, sanitation, nutrition, water, veterinary care, and
protection from extreme weather and temperatures. Although Federal
requirements establish basic standards, regulated businesses are
encouraged to exceed these standards.

The [USDA] delegates responsibility for upholding the AWA to the

Animal and Plant Health Inspection Service (APHIS). APHIS Animal
Care . . . program officials are charged with developing and implementing
regulations to support the AWA. These regulations require the licensing
of animal dealers, exhibitors, and operators of animal auction sales where
animals are sold under AWA regulations. Before APHIS will issue a
license, the applicant must be in compliance with all standards and
regulations under AWA. To ensure that all licensed and registered
facilities continue to comply with AWA, APHIS inspectors regularly
make unannounced inspections. If an inspection reveals deficiencies in
meeting AWA standards and regulations, the inspector documents the
deficiencies and instructs the facility to correct the problems within a
given timeframe. If deficiencies remain uncorrected at subsequent
inspections, APHIS considers legal action.

USDA Audit Report, APHIS: Animal Welfare Act Marine Mammals (Cetaceans), May 2017
(Report).
Lolita is an orca owned by, and since 1970, housed at, Miami Seaquarium. In 1978,
APHIS issued an AWA Class C exhibitor license to Marine Exhibition Corp. (MEC) for
Seaquarium. MEC owned Seaquarium and was a wholly-owned subsidiary of Wometco
Enterprises, Inc. (Wometco). On July 1, 2014, Wometco sold its interest in MEC to FFP.
On July 3, 2014, FFP merged with its wholly-owned subsidiary MEC. When FFP and MEC
merged, each held a valid AWA license: FFP held AWA license 12-C-0052, originally issued
for its exhibition site called Storyland in New Hampshire; and MEC held AWA license 58-C-
0147, originally issued for its Seaquarium site in Florida. (ECF No. 31, 60). Thus, after FFP
and MEC merged, FFP, the surviving corporate person, held and controlled two AWA
licenses. The controlling regulations, however, prescribe that [n]o person shall have more
than one license, 9 C.F.R. 2.1(b), and FFP is a person under the regulations, 9 C.F.R.
1.1 (defining person as any individual, partnership, firm, joint stock company, corporation,
association, trust, estate, or other legal entity.). Accordingly, FFP added the Seaquarium site
onto its existing, surviving license.

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On May 18, 2016, Plaintiffs filed this action challenging the licensing of Seaquarium as
an additional FFP site. They argue that the issuance of Sequariums license was arbitrary and
capricious, an abuse of discretion, and not in accordance with law, or otherwise violated the
APA.
In May 2017, the USDA reviewed APHIS monitoring and oversight of captive
marine mammals to determine (1) if exhibitors met AWA regulations; (2) if APHIS established
an adequate system to monitor compliance; and (3) if care and maintenance regulation are
consistent with current science. Id. Among the facilities the USDA reviewed was
Seaquariums orca tank. See, e.g., Chabeli Herrera, Lolitas Tank at the Seaquarium May Be Too
Small After All, USDA Audit Finds, Miami Herald, June 2, 2017; Jonathan Kendall, USDA
Officials Say Lolitas Tank at Miami Sequarium Might Violated Federal Law, Miami New Times,
June 7, 2017. The USDA concluded:
We determined that APHIS has allowed an orca (Orcinus orca) to be kept
in an enclosure which may not meet all space requirements defined by the
agencys AWA regulations. During our observation of an inspection, we
identified a primary enclosure housing for an orca for which it was
unclear whether minimum horizontal dimension (MHD) requirement
were met. This occurred as the Animal Welfare Regulations are not clear
on how to calculate MHD. The design of the enclosure may deny the
resident orca sufficient space for adequate freedom of movement.
Report, at 4.
It also concluded:

We found that the AWA regulations for natural or artificial shelter for
marine mammals are not consistently enforced by APHIS inspectors.
Current regulations require exhibitors using outdoor enclosures to protect
marine mammals from adverse weather or direct sunlight by providing
species- and climate- appropriate shelter. Through document reviews and
interviews, we learned that one facility has been repeatedly cited for not
providing or having adequate shade.
Id. at 18. Lolitas lack of protection from the elements is particularly troubling given reports
that Seaquarium left her in her tank as Hurricane Irma battered South Florida. See, e.g., Isabella
Vi Gomes, Lolita, Miami Seaquariums Orca, Left in Tank During Hurricane Irma, Activists Say,
Miami New Times, Sept. 13, 2017.
In light of these revelations, it is hereby ORDERED and ADJUDGED that by October
13, 2017, Defendants shall file a memorandum in response to this Order, not to exceed fifteen
(15) pages, addressing the following questions:

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1. Does Seaquariums orca tank currently meet AWA space and shade/shelter
requirements?
2. What impact, if any, would the tanks current failure to meet AWA space and
shade/shelter requirements have on the pending Motions to Dismiss?
3. If Seaquairums orca tank does not currently meet AWA space and
shade/shelter requirements, what, if any, remedy can this Court order to correct
those deficiencies?
Plaintiffs shall have until October 27, 2017 to file a memorandum in reply, not to exceed (15)
pages.
The Court shall DEFER ruling on the pending Motions to Dismiss (ECF Nos. 64, 66)
until the parties have made their submissions.
DONE and ORDERED in chambers, at Miami, Florida this 30th day of September
2017.

Copies furnished to:

Edwin G. Torres, U.S. Magistrate Judge
Counsel of Record