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I am an attorney practicing in Hartford, Connecticut. A particular focus of mine is the legal needs of the amusement and tourism industry. My focus on the amusement industry derives from my pre-law career as an operations manager with Cedar Fair Entertainment Company and Universal Orlando. Having started my career as a ride operator at Cedar Point in 1992, I progressed through the seasonal ranks and ultimately became the Manager of Ride Operations and Park Services at Worlds of Fun in Kansas City. I also worked in Universal's operations department during the construction and development of Islands of Adventure. Today, I am an active member of the New England Association of Amusement Parks & Attractions and the International Association of Amusement Parks & Attractions. I have been invited to speak at amusement industry meetings and seminars and have worked on a variety of matters relating to this industry.

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Wednesday, April 9, 2014

3 Things We Learned From Yesterday's Hearing On AB2140, The So-Called "Blackfish Bill"

Yesterday, April 8, 2014, the California State Assembly's Committee on Water, Parks, and Wildlilfe held its public hearing on AB2140, also known as the "Blackfish Bill."  The proposed bill would, prohibit the possession or use of killer whales for entertainment purposes in the State of California, would generally prohibit breeding of killer whales in California, and would require owners of killer whales to return them to the wild "where possible" - more on that in a minute - and where not possible to move them to sea pens.  Yesterday's hearing, which lasted about ninety minutes, featured prepared testimony from the bill's sponsor, Assembly Member Richard Bloom, three witnesses in support of the bill, and five witnesses in opposition to the bill.

As a purely practical matter, the end result of the hearing was not a clear victory for either the bill's supporters or its detractors.  The Committee decided to refer the bill for "interim study," which requires preparation of a comprehensive report on the proposed bill.  Once that study is complete, which is expected to take more than a year, another hearing will be convened to consider the bill again.  Thus, the bill is not dead, but it was not passed out of committee either. 

Aside from the bottom line result to defer a vote, the hearing offered some valuable insight into both side's positions, the legal merit of the bill, and the considerations that are likely to resonate with the Committee members when the next hearing occurs.  Although I could spend hours writing about any number of issues that were raised, I've decided to narrow it down to the three that resonated most with me from a legal perspective.   



1.  No One Has Thought This Bill Through
To the credit of some of the committee members, the shortcomings and lack of thought that went into AB2140 were abundantly apparent during the hearing.  While supporters of the bill continued to make, at bottom, a moral case against captivity using much of the same rhetoric as in Blackfish, none of them had answers to the practical, real-world questions and obstacles this bill would raise.  I don't think that was lost on the committee, even some of its members that are inclined to support the bill.  More specifically:

  • The bill's sponsor was forced to admit during the hearing that sea pens of the magnitude called for in AB2140 have never been constructed before and there is no known timeline for when such pens could be constructed in the future.  Given the importance of sea pens to this bill, isn't the technical and economic feasibility of these pens an important issue to nail down before setting down a legal mandate for their construction and operation?  
     
  • While the bill requires release of orcas to the wild, "where possible," the bill contains no guidance on who makes that decision and what standards are to be applied in making it.  The bill does provide that the decision is to be based on "the best available science," but that merely begs the question as to what exactly is the "best available science."  The Committee heard from respected scientists on both sides of the issue yesterday, so which side is the "best available"?  My suscipicion is that it would depend on whether you favor or oppose the bill - a consideration which should simply not factor into this calculation. 
     
  • Who is responsible for paying for the construction and ongoing operation of these as-yet unestablished sea pens?  The bill certainly doesn't say, although at one point Assembly Member Bloom seemed to indicate that SeaWorld would have to figure it out for themselves.  Moreover, where are these sea pens going to be located?  As SeaWorld pointed out to the Committee, it does not own property that is suitable for such sea pens now.  Does this bill purport to require SeaWorld to buy ocean property and foot the bill for sea pens?  Or is the State of California prepared to spend this money or donate valuable seaside property to SeaWorld (yeah, right)?
     
  • Supporters of the bill argue that the law would not prohibit SeaWorld from displaying killer whales, it only prohibits their display for "entertainment purposes," defined as "any routinely scheduled public exhibition that is characterized by music or other sound effects, choreographed display or training for that display, or unprotected contact between humans and orcas."  Well that's all fine and good, but does that really ensure SeaWorld's ability to publicly display orcas in sea pens as proponent's of the bill claim?  I'm not so sure.  The display can't be "routinely scheduled."  What does that mean?  Does it mean that SeaWorld could not schedule display of the whales during set operating hours?  Is that schedule too "routine" to fit within the law?  Would SeaWorld be compelled to grant public access to the whales 24-7?  There also can't be music involved apparently, but how far does that go?  Would ambient music on the walkways around the sea pen violate the law?  I don't think so, but I'm not the one making the rules or enforcing them.
     
  • Speaking of which, who does enforce this bill?  Can PETA or some other animal-rights organization sue SeaWorld for violating it?  Is there some state agency that is going to oversee it?  Where's the budget for that oversight coming from?  Again - no one knows.
Some members of the Committee were clearly bothered by the lack of specificity and practicality in the bill, and cited these concerns as justification for interim study.  Even Committee members that seemed inclined to support the subject matter of the bill voiced concern that there were too many holes to vote in favor of it now.  These practical considerations, which force deeper and more realistic thought than the reflexive moral / ethical arguments routinely raised by anti-captivity supporters, may well end up being the downfall of this bill in the long run.

2:  Six Flags Discovery Kingdom Has Somehow Become The Important To This Debate - But It Shouldn't Be

This one initially caught me by surprise as I had never heard it before.  Two witnesses speaking in support of AB2140, Assembly Member Bloom and Dr. Naomi Rose, mentioned Six Flags Discovery Kingdom, located in Vallejo, California, as an example of why a ban on killer whales would not be detrimental to SeaWorld's business.  In essence, both witnesses pointed to the fact that Discovery Kingdom had voluntarily stopped killer whale performances and that, nonetheless, the park was doing just fine.  The message was that SeaWorld would weather this storm equally well and thus that this bill was not a death-knell to SeaWorld's business.  While there is some surface appeal to this analogy, upon closer inspection it is not convincing.

The reason this comparison falls apart is that Discovery Kingdom and SeaWorld are, and have been for a long time, two very different kinds of parks.  While both parks feature marine animals and do significant wildlife rescue and rehabilitation work, that's about where the similarities end.  Particularly since being branded as a Six Flags park, Discovery Kingdom has really been a hard-ride amusement park with some animal elements, rather than a zoological park with some rides like SeaWorld of San Diego.  This is an important thing to understand if trying to assess how the loss of orcas would impact SeaWorld in the future. 

To illustrate, according to its website, Six Flags Discovery Kingdom currently boasts 45 rides & non-animal attractions and 19 animal attractions, only 7 of which feature marine animals.  By comparison, SeaWorld of San Diego currently offers 14 rides and non-animal attractions and 19 animal shows and exhibits, 18 of which feature marine animals.  In other worlds, marine animals make up  only 10% of Six Flags Discovery Kingdom's attractions, but they make up 55% of SeaWorld of San Diego's offerings.  Put another way, rides and non-animal attractions account for 70% of Discovery Kingdom's attractions, but less than half (42%) of SeaWorld's.

Given these numbers, therefore, it is not surprising that Six Flags Discovery Kingdom continues to be successful after orca performances stopped in 2012 - marine animals simply were not its primary attraction base and thus the loss of killer whales could be more easily absorbed by other attractions in the park.  SeaWorld, which focuses far more heavily on marine animals generally, and orcas in particular, is simply not comparable.  SeaWorld lacks the predominant focus on other amusement attractions that would allow it to absorb the loss of these animals without seriously damaging its ongoing viability.  Six Flags Discovery Kingdom's post-killer whale experience thus says little (if anything) about the effect AB2140 would have on SeaWorld.


3.  Some Legislators Don't Care If This Entire Law Arises From Falsehoods 

For me, the most disturbing and disappointing park of the hearing came at the end from the Committee's chairman, Assembly Member Anthony Rendon.  By way of brief background, both the bill's sponsor, Richard Bloom, and Dr. Naomi Rose, referenced Blackfish in their testimony and response to questioning.  Opposition witnesses from SeaWorld also referenced the movie and attempted to discredit its factual basis.  Some Committee members indicated they viewed the film, one of which even indicated she used it as a valuable research source in learning about the issue.  Blackfish is clearly an important component of the AB2140 story.  Given that, wouldn't the veracity of allegations raised in Blackfish be relevant to the passage of AB2140?  After all, if there are factual inaccuracies in Blackfish, wouldn't that undermine the perceived need for legislation to "improve" the lives of killer whales in SeaWorld's care?   

Not to Chairman Rendon it wouldn't.  Chairman Rendon stated, on the record, that it didn't matter to him whether Blackfish was full of inaccuracies because he is simply fundamentally opposed to captivity as a moral and ethical issue.  This, of course, was greeted with raucous applause from the bill's supporters in the room.  But Chairman Rendon's position, which may well be shared by others on the committee, raises a point that should not be overlooked by the bill's opponents:  This bill may eventually pass on nothing more than moral grounds. 

While, admittedly, it was also Chairman Rendon that proposed referring this bill to interim study, I heard nothing in his final statements that led me to believe that the outcome of that study was going to matter much to his support of the bill.  Whether premised on falsehoods or truth, Chairman Rendon will almost certainly support this bill because he just believes that whales should not be held in a zoological setting.  For him, it's that simple.  And that is the most powerful arrow AB2140's supporters have in their quiver. 

Legislators are tasked with setting public policy based on thoughtful debate about the facts impacting their communities.  They are not supposed to make law based solely on their personal morality - or to be willfully blind to the truth when it is convenient to their moral and ethical beliefs.  Would it be acceptable to increase taxes based on fabricated economic figures if that additional money went to a good cause?  Would it be acceptable to put a known drug-dealer in jail on the basis of fabricated evidence?  My guess (and hope) is that Chairman Rendon, and others that share his moral convictions, would say that neither of these were acceptable.  So why should it be acceptable to base AB2140 on factual inaccuracies about killer whales and their treatment by SeaWorld?  (Remember, according to Chairman Rendon, his position wouldn't change even if everything in Blackfish were proven to be false).  It shouldn't be, but the emotional and moral power of the anti-captivity movement have made this issue somehow "different," and it is this difference that the opposition to AB2140 must not overlook in the coming months.

So what's the future of this bill?  No one really knows.  It will be more than a year before the interim study will be completed, and then we will go through this process all over again.  Think of yesterday's hearing as a dress rehearsal where both sides got to try out their best arguments to see what resonated.  I think both sides heard things that will strengthen their positions next time.  That hearing ought to be a doozy.

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