Jared S. Goodman Director of Animal Law 202-540-2204 JaredG@petaf.org November 18, 2014 Juanita Chastain Executive Director Division of Professions Board of Veterinary Medicine 1940 N. Monroe St. Tallahassee, FL 32399-0783 Tim McGrath Regional Program Administrator 400 W. Robinson St., N802 Orlando, FL 32801-1732 Department of Business and Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-102 Via online submission and certified mail with DVD Return receipt requested Dear Ms. Chastain and Mr. McGrath: On behalf of People for the Ethical Treatment of Animals (PETA) and pursuant to Fla. Stat. Ann. § 455.225, I am writing to request that your office investigate and take appropriate disciplinary action against Dr. Christopher M. Dold (license # VM9836) for apparent violations of Florida’s veterinary medical practice regulations, Fla. Stat. Ann. §§ 474.214(1)(o) (prohibiting “[f]raud, deceit, negligence, incompetency, or misconduct, in or related to the practice of veterinary medicine”) and § 474.214(1)(e) (prohibiting “[a]dvertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content”). Specifically, Dold, the vice president of veterinary services at SeaWorld Parks & Entertainment, wrote in a September 4, 2014, guest column published in Florida Today: “I can unequivocally state that our whales, along with every other animal in our parks, are thriving, both mentally and physically.”1 As discussed in the attached appendix, this statement is fraudulent and deceptive because the animals at SeaWorld are not “thriving” either “mentally” or “physically.” As acknowledged in SeaWorld’s own records and supported by expert observations, 1 Dr. Christopher Dold, Guest Column: SeaWorld Responds, Florida Today, Sept. 4, 2014 http://www.floridatoday.com/story/opinion/columnists/guest-columns/2014/09/02/guest-column-seaworld-responds/14976905/ [Ex. 1].

captivity at SeaWorld is physically and psychologically devastating to the orcas and other animals confined there, as evidenced by, among other things, the following: • Orcas repeatedly bite down on the corners and steel gates of their tanks, leading

to an epidemic of chronic tooth infections and dental drilling without anesthetics. • Orcas exhibit excessive and deadly aggression toward each other and humans,

including some 100 occurrences of biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers.

• The frustrated orcas are given psychotropic drugs to try to reduce the aggression caused by captivity so that they can be confined together.

• Orca calves are torn away from their mothers, when in nature they would stay together for many years and often for life.

• Extensive scarring can be seen on animals’ bodies, likely attributable to aggression from other animals in response to incompatible and stressful housing, inappropriate enclosures, and inadequate transport.

• The animals’ enclosures deprive them of virtually everything natural and important to them, including swimming long distances, diving, and foraging in their closely knit pods.

• The animals engage in stereotypical behavior, such as the orcas lying motionless at the surface or bottom of the tanks for extended periods, and a walrus swimming in circles and regurgitating and re-ingesting food.

• Dolphins are forced to perform with potentially serious skin conditions that indicate a depressed immune system.

• Animals have been ejected from their tanks during performances and struggle to re-enter the water while spectators futilely plead with SeaWorld trainers to help them.

• Dolphins have had open wounds on their lower jaws, likely caused by unsafe enclosures. We appreciate your attention to this important matter and look forward to hearing from you. Very truly yours, Jared S. Goodman

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APPENDIX

I. Dr. Dold’s statement constitutes “fraud” and “deceit” in violation of Fla. Stat. Ann. § 474.214(1)(o)

By stating that the “whales, along with every other animal” at each of SeaWorld’s parks are “thriving,” Dold engaged in “[f]raud, deceit, negligence, incompetency, or misconduct, in or related to the practice of veterinary medicine” and may be subject to discipline by the Board of Veterinary Medicine pursuant to § 474.214(2).

A. Dold’s statement is fraudulent and deceptive because orcas at SeaWorld are not “thriving,” but rather, suffering, “both mentally and physically.”

As highly intelligent and social apex predators, orcas at SeaWorld are subjected to extensive physical and psychological harm. Among other things, the physical constraints of the artificial enclosures at SeaWorld limit their ability to exercise, disperse from incompatible pairings, avoid conflicts, or engage in natural behaviors such as swimming at high speeds or diving, causing extreme stress and frustration. The stress of the captive environment is manifested in stereotyped behavior, submissiveness, self-inflicted physical trauma, compromised immunology, and excessive aggressiveness, all of which has been documented by SeaWorld itself in corporate incident logs and medical records (which, as lead veterinarian at SeaWorld, Dold would necessarily have knowledge of), or supported by expert observations and peer-reviewed studies. Indeed, Dold himself acknowledged that the health problems caused by at least one such stereotyped behavior are a “common management concern of [SeaWorld’s].”2 Given these stressors, it is unsurprising that “less than a half dozen out of more than 60 whales at SeaWorld since 1965 have reached the mean life expectancy for wild whales in Southeast Alaska and the Pacific Northwest.” 3

1. Orcas are intelligent mammals whose brains are highly developed in areas

responsible for complex cognitive functions including self-awareness, social cognition, culture, and language.

Orca brains share—and, in some respects, exceed—a number of important features with human brains that are associated with complex intelligence. As with the human brain, orca brains are much larger than expected for their body size. The proportion of brain and body size is typically expressed as an Encephalization Quotient (EQ). The EQ for orcas is 2.57, which means that even when their large body size is taken into account, their brains are still two and a half times larger than expected.4 Orcas therefore have more brain tissue available to serve complex cognitive

2 Transcript of Proceedings at 1730, Sec’y of Labor v. SeaWorld of Fla. (OSHRC No. 10-1705) (Sept. 19, 2011). (hereinafter “Tr.”) 3 Dr. Naomi Rose, Orca Lifespan, https://www.thedodo.com/community/NaomiRose/everything-wrong-with-seaworld-561608176.html (May 22, 2014). 4 Lori Marino, A Comparison of Encephalization between Odontocete Cetaceans and Anthropoid Primates, 51

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functions, such as self-awareness (sense of self identity), social cognition, culture, and language.5 Similarly, the neocortex (the outer wrinkled surface of the cerebrum) of the orca brain is highly differentiated, i.e., different parts have different specialized functions, and even surpasses the human brain in degree of convolutedness—a measure of surface area indicating the amount of information processing possible in the brain.6 The neocortex is involved in integrating information from the different senses to form mental representations of objects and thoughts and is also part of the cerebral cortex—the system that processes higher-order thinking and complex and abstract processes, such as language, self-awareness, metacognition (the ability to think about your own thoughts), social cognition, and theory of mind (the ability to think about and infer the thoughts of others). In addition to these complexities of the orca brain, it also contains spindle-shaped cells known as von Economo neurons in the same areas of the brain as humans.7 These spindle cells are found in the parts of the brain that are thought to be involved in high-level cognitive processing, such as social and emotional cognition, awareness, and intuition.8 This includes “feelings of empathy, guilt, embarrassment, and pain, as well as judgement [sic], social knowledge, and consciousness of visceral feelings.”9 Finally, orca brains possess a highly developed paralimbic region, which is believed to be involved in processing and integrating emotional information with other thought processes. In fact, the human brain is not elaborated in the same way and does not have an identifiable paralimbic lobe. This suggests that the orca brain may have evolved certain kinds of sophisticated or complex functions and thought processes related to emotion-processing that did not evolve in the human brain—or at least not to the same extent.

2. Orcas are deprived of every facet of their culture and the ability to engage in natural behaviors, causing extreme stress, torment, and suffering.

In accord with their complex intelligence and cognitive abilities, orcas are among the most highly social, far-ranging, communicative and culturally complex mammals on the planet. Orca populations are distinguishable by diet, morphology, dialect, social structure, genetics, and other behaviors. Their transmission of these group-specific vocal and physical behaviors from generation to generation in complex multicultural societies is recognized as a form of culture that is unique outside humans.

BRAIN, BEHAV. & EVOLUTION 230 (1998). 5 See Part I.A.2., infra. 6 Patrick R. Hof et al., Cortical Complexity in Cetacean Brains, 287A ANATOMICAL REC. 1142, 1151 (2005); Lori Marino, Cetacean Brains, in THE ENCYCLOPEDIA OF NEUROSCIENCE 807-810 (Larry R. Squire ed., 2008); Lori Marino et al., Neuroanatomy of the Killer Whale (Orcinus Orca) from Magnetic Resonance Imaging, 281A ANATOMICAL REC. 1256, 1262 (2004) [hereinafter Neuroanatomy of the Killer Whale]. 7 Camilla Butti et al., Total Number and Volume of Von Economo Neurons in the Cerebral Cortex of Cetaceans, 515 J. COMP. NEUROLOGY 243, 244 (2009). 8 Id. 9 Id. at 257 (citations omitted).

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SeaWorld causes orcas to suffer by depriving them of adequate space, environmental enrichment, social stability, and the opportunity to perform natural behaviors such as swimming long distances, diving, and foraging. The confined space and repeated scheduled training and performances eviscerate orcas’ autonomy. This deprivation is physically and psychologically harmful to orcas, and as discussed in Part I.A.3.b. below, causes them to display indicators of stress and trauma, which notably includes aggression, self-injury, and increased mortality.

a. The tanks at SeaWorld provide inadequate space and result in stress.

The tanks at SeaWorld provide woefully inadequate space for an orca. Orcas are one of the fastest animals in the sea, traveling at speeds of up to nearly 28 miles per hour.10 They are also adapted for swimming extended distances and durations. Individual orcas have been recorded traveling nearly 100 miles per day11 and vast distances over many thousands of miles over time.12 They regularly dive 200-300 meters (656-984 feet),13 and spend 95% of their time submerged.14 According to a reference book for zoos, aquaria, and wildlife parks, the design and construction of marine mammal habitats “should consider the natural history and behavior of the species to be maintained and should permit the performance of most, if not all, of their natural behaviors.”15 In addition, it “must meet the physical, psychological and behavioral needs of the animals.”16 Put simply,“[m]arine mammals need enough space to allow them to perform natural behaviors with freedom of movement.”17 At SeaWorld, the orcas are kept in a series of tanks that average approximately eighty-six feet by 10 Terrie M. Williams, Swimming, in ENCYCLOPEDIA OF MARINE MAMMALS 1140, 1145 (William F. Perrin et al. eds. 2008) (orcas swim at an average ‘casual’ speed of 3.6 m/sec (8.05 miles per hour (“mph”)) and ‘sprint’ at up to 12.5 m/sec (27.96 mph)); John K.B. Ford, Killer Whale: Orcinus orca, in ENCYCLOPEDIA OF MARINE MAMMALS 654 (William F. Perrin et al. eds., Academic Press 2002) (traveling over distance at speeds of over 20 km/h (12.43 mph)); id. (a mean travelling speed of 10.4 km/h (6.46 mph)). 11 See, e.g., Robin W. Baird, The Killer Whale: Foraging Specializations and Group Hunting, in CETACEAN SOCIETIES: FIELD STUDIES OF DOLPHINS AND WHALES 131, 136-37 (Janet Mann et al. eds., U. Chi. Press 2000) (160 km (99.42 miles) in 24 hours) [hereinafter Foraging Specializations]. 12 Ingrid N. Visser, Propeller Scars on and Known Home Range of Two Orca (Orcinus orca) in New Zealand Waters, 33 N.Z. J. OF MARINE AND FRESHWATER RES. 635, 638 (1999) (15,600 km (9693 miles) in six years). 13 Craig O. Matkin et al., Expanding Perspectives: Investigating Pod Specific Killer Whale Habitat with ARGOS Satellite Telemetry, Presented at the Alaska Marine Science Symposium, Anchorage, Alaska (Jan. 2012) (orca for whom “regular dives of 200-300 m were recorded and one dive of 400 m was logged”); Robin W. Baird et al., Factors Influencing The Diving Behaviour of Fish-Eating Killer Whales, 83 CAN. J. OF ZOOLOGY 257, 262-63 (2005) (a population that uses “primarily near-surface waters” still dives “below 150 m on a regular basis” and up to 264 m). 14 Nat’l Marine Fisheries Serv., N.W. Reg’l Office, Proposed Conservation Plan for S. Resident Killer Whales (Orcinus orca) 16 (2005), available at http://orcasphere.net/pdfs/SRKWpropconsplan-Oct05.pdf 15 Brian Joseph & James Antrim, Special Considerations for the Maintenance of Marine Mammals in Captivity, in WILD MAMMALS IN CAPTIVITY: PRINCIPLES AND TECHNIQUES FOR ZOO MANAGEMENT 181, 181 (Devra G. Kleimanet al. eds. 2010). 16 Id. 17 Id. at 183; see also Laurence Couquiaud, Special Issue: Survey of Cetaceans in Captive Care, 31(3) AQUATIC MAMMALS 279, 327 (2005) (“Enclosures in which cetaceans are housed should be as naturalistic as possible, considering the fundamental needs of the animals before aesthetic considerations.”).

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fifty-one feet and are only thirty-four feet deep—not even twice as deep as the average orca is long. As a result, orcas are unable to perform any of these natural behaviors: they are unable to swim any meaningful distance or dive, forced to spend a majority of their lives on, or just below, the surface of the water.18 The largest tank at the Florida SeaWorld facility holds approximately .0001% of the minimum volume of water (45.3 billion gallons) that an orca traverses daily in nature.19 An orca would have to swim the circumference of that tank more than 1,900 times in a single day to approximate the distance that wild orcas swim in a day. One orca in particular, Tilikum (pictured below), after killing SeaWorld trainer Dawn Brancheau, was held in a tank so small that his rostrum (nose) and fluke (tail) apparently touched the sides of the tank, likely exacerbating the stress that had caused Tilikum’s aggression and led to Ms. Brancheau’s death.20 Small enclosures have been shown to induce stress in various species,21 and “[a]mong the carnivores, naturally wide-ranging species,” such as orcas, “show the most evidence of stress and/or psychological dysfunction in captivity.”22

Tilikum is seen inside the circle in this aerial photo of SeaWorld

18 Oleg I. Lyamin et al., Cetacean Sleep: An Unusual Form of Mammalian Sleep, 32 NEUROSCIENCE BIOBEHAV. REV. 1451, 1457–58 (2008); Robert W. Osborne, A Behavioral Budget of Puget Sound Killer Whales, in BEHAV. BIOLOGY OF KILLER WHALES 211, 231 (Barbara C. Kirkevold & Joan S. Lockard eds. 1986). 19 See ERICH HOYT, THE PERFORMING ORCA - WHY THE SHOW MUST STOP 40 (Whale & Dolphin Conserv. Soc’y 1992). 20 See Part I.A.3.a., infra (discussing the correlation between captivity and orca aggression). 21 See generally Kathleen N. Morgan & Chris T. Tromborg, Sources of Stress in Captivity, 102 APPLIED ANIMAL BEHAV. SCI. 262, 277-78 (2007). 22 Georgia Mason, Captivity Effects on Wide-Ranging Carnivores, 425 NATURE 472 (2003).

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Nor would doubling the size of its orca enclosures (as Sea World recently announced its plans to do,23 but for which it has not yet even sought the requisite permits) ameliorate these stresses, since even the expanded tanks will hold only .0002% of the minimum volume of water that an orca traverses daily in nature, require an orca to swim 1,500 laps to approximate the distance she may swim in a single day, and restrict these deep-diving animals to a tank only twice as deep as their average length. Moreover, the possibility of larger enclosures has no bearing on the truthfulness of Dold’s statement that the orcas at SeaWorld are currently “thriving,” given that, by SeaWorld’s own admission, the project will not be completed in only the first of the three facilities until 2018 at the earliest.24

b. SeaWorld’s constant manipulation of the orcas’ social structure results in stress.

SeaWorld utterly disregards the importance of orcas’ complex familial and sociological bonds. Long-term studies of wild orcas have shown that most populations live in stable social groups with strong and long-term associations and some individuals, such as mothers and sons, stay together for life.25 In resident orca populations of the Pacific Northwest, orcas live in “highly stable matrilineal pods averaging 12 animals” and “there is no known case of individuals changing pods.”26 In fact, these close relationships are so crucial that even adult offspring of a post-reproductive orca mother have been shown to have a significantly increased mortality risk in the year after their mother’s death.27 While other populations appear to typically live in smaller groups, even these individuals generally leave their natal pods only occasionally and temporarily travel with other groups.28 In contrast to the stable social structure in nature, SeaWorld transfers orcas between facilities regularly to “balance” the genetic pool for breeding29 and for use in performances, and confines unknown and often incompatible orcas together.30 SeaWorld also removes calves from their mothers at ages far younger than they would be separated in the wild, if at all, and when it is clearly distressing to the animals. The orca Kayla exemplifies this disregard for stable social structure. Kayla was born at SeaWorld San Antonio in 1988, taken from her mother at only 11 months of age, moved to the now-defunct SeaWorld Ohio at the age of 2, returned to San Antonio in 1999, and finally to Orlando in 2006, where she remains today.31 Katina’s calf, Kalina, was also taken away from her 23 Tom Gara, SeaWorld to Upgrade Killer Whale Habitats, Wall Street Journal, (Aug. 15, 2014) http://online.wsj.com/articles/seaworld-to-upgrade-killer-whale-habitats-1408089841. 24 Id. 25 E.g., Luke Rendell & Hal Whitehead, Culture in Whales and Dolphins, 24 BEHAV. & BRAIN SCI. 309, 314 (2001) (citations omitted); Robin W. Baird & Hal Whitehead, Social Organization of Mammal-Eating Killer Whales: Group Stability and Dispersal Patterns, 78 CAN. J. OF ZOOLOGY 2096 (2000). 26 Rendell & Whitehead, supra, at 314 (citations omitted). 27 Emma A. Foster et al., Adaptive Prolonged Postreproductive Life Span in Killer Whales, 337 SCI. 1313 (2012). 28 Rendell & Whitehead, supra, at 314 (citations omitted). 29 Tr. at 651, 736. This balance must be difficult to achieve, as Tilikum, has sired at least a dozen calves, making him the father or grandfather of more than half the orcas owned by the company. 30 See e.g. Tim Zimmermann, Do Orcas at Marine Parks Injure One Another?, http://timzimmermann.com/2010/09/14/do-orcas-at-marine-parks-injure-one-another/ (Sept. 14, 2010). 31 SeaWorld, Animal Profiles, http://www.orcahome.de/swprofiles1.pdf at 3 (Kayla) (hereinafter “Animal Profiles”).

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at four years of age and shipped to Ohio for reportedly disrupting shows at the SeaWorld Orlando facility.32 The night that Kalina was taken, Katina “remained immobile in a corner of the pool, emitting wretched cries into the night.”33 Research has shown that social instability—such as changes in group dynamics, competition over resources, and unstable dominance hierarchies—is a major stressor that is believed to have even caused the deaths of several captive dolphins.34 Indeed, SeaWorld’s own behavioral profile of Tilikum acknowledges that “[d]uring times of frustration due to social stress in the environment, Tilikum has exhibited aggressive behavior by mouthing [or biting] the stage, vocalizations, tightening body posture, banging gates, a deep fast swim, and sometimes lunging toward [the] control trainer.”35 Tilikum has also been observed on at least one occasion confined by himself for multiple days, completely isolated from other orcas, despite being compatible with at least one other orca.36

In short, the orcas at SeaWorld are deprived of the stable, nurturing social family and pod structure that is so central to the lives of wild orcas. The artificial groupings at marine facilities are, according to one expert, “a tremendous violation of the basic premise of the pod” and result in “constant stress.”37

c. The tanks at SeaWorld create a distressing acoustic environment. Orcas are highly acoustic animals who use a range of signals for distinct purposes,38 including clicks for echolocation to navigate and detect environmental objects and prey,39 and whistles and pulsed calls for social communication.40 Orca pods have distinctive sets of discrete call types known as dialects that are passed down through vocal learning41—i.e., the dialect is learned by calves through contact with their mothers and other pod members. Indeed, in one well-studied population, family-specific call types dramatically increase in the days following a birth, which “supports the idea that discrete calls in orcas indeed function as family badges and suggests that the family may actively enhance vocal learning of a signal that is crucial for recognizing and maintaining contact with the family.”42 These dialects “are maintained despite extensive 32 DAVID KIRBY, DEATH AT SEAWORLD 112 (2012). 33 Id. 34 Kelly A. Waples & Nicholas J. Gales, Evaluating and Minimizing Social Stress in the Care of Captive Bottlenose Dolphins (Tursiops aduncus), 21 ZOO BIOLOGY 5 (2002). 35 Animal Profiles, supra, at 9 (Tilikum). 36 The Orca Project, Tilikum’s Lonely Life After Dawn, http://theorcaproject.wordpress.com/2010/09/03/seeing-is-believing-tilikums-lonely-life-after-dawn/ (Sept. 3, 2010). 37 Mike Thomas, Tilikum’s Captivity May Be Problem, But He’s Important for Conservation¸ ORLANDO SENTINEL, Feb. 25, 2010 (quoting marine-mammal biologist Fred Felleman); Marino & Frohoff, supra, at 3. 38 Volker B. Deecke, John K. B. Ford & Paul Spong, Quantifying Complex Patterns of Bioacoustic Variation: Use of a Neural Network to Compare Killer Whale (Orcinus Orca) Dialects, 105 J. ACOUSTICAL SOC’Y AM. 2499, 2499–2500 (1999). 39 John K. B. Ford, Graeme M. Ellis & Kenneth C. Balcomb, Killer Whales: The Natural History and Genealogy of Ornicus Orca in British Columbia and Washington State 21 (2d ed., U. Wash. Press 2000). 40 Id. 41 Rendell & Whitehead, supra, at 314 (citations omitted). 42 Brigitte M. Weiß et al., Vocal Behavior of Resident Killer Whale Matrilines with Newborn Calves: The Role of Family Signatures, 119(1) J. ACOUST. SOC. AM. 627, 634 (2006)

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associations between pods,” and some calls are shared between pods, “suggesting another level of population structure” and further evidencing the importance of communication to their complex society.43 SeaWorld’s apparently wholesale disregard for orcas’ stable social structure, as discussed above, strips orcas of the ability to develop and transmit dialects—their principal form of communication and a crucial component to their identity. Additionally, the tanks at SeaWorld likely cause orcas’ use of any communicative abilities to be highly distressing. Dr. Hal Whitehead, an expert on cultural transmission in cetaceans, and co-author on a groundbreaking review of culture in orcas and other cetaceans, compares the experience of a “highly acoustic cetacean” such as an orca “living in a tank with acoustically reflective walls, to that of a visually oriented animal, like a human, living captive in a room covered with mirrors on all walls and the floor. The experience is likely to be profoundly disturbing, especially over the long term.”44 Similarly, oceanographer Jean-Michel Cousteau compared the keeping of orcas in tanks to “a person being blindfolded in a jail cell.”45

3. The stressors of the captive environment at SeaWorld result in aggressiveness, self-injury, and other physical and behavioral abnormalities.

As a result of the aforementioned circumstances, captive orcas display behavioral indicators of severe stress and trauma, including stereotypies (abnormal repetitive behaviors), self-inflicted physical trauma, and excessive aggressiveness towards humans and other orcas, among other abnormalities not observed in wild populations.46

43 Rendell & Whitehead, supra, at 314. 44 VANESSA WILLIAMS, CAPTIVE ORCAS: ‘DYING TO ENTERTAIN YOU’: THE FULL STORY 35 (Whale & Dolphin Conserv. Socy. 2001) (quoting Hal Whitehead, Speech, The Value of Oceanaria (Whales in Captivity: Right or Wrong? Symposium 1990). 45 Tyler Haden, Cousteau on SeaWorld Tragedy, THE INDEPENDENT (Feb. 27, 2010). Like social structures and dialects, foraging is also an important component of orca culture and their methods of finding, capturing, and eating prey and the types of prey vary widely. Orcas are the oceans’ apex predators and forage on, inter alia, fish, seals, sharks and rays, and other cetaceans. They are also known for their use of a range of often complex and cooperative hunting techniques, including launching out of the water to take prey on dry land, coordinating to create a wave to wash prey off of ice floes, and debilitating prey by ramming or striking the animal with their tail fluke. See generally Rendell & Whitehead, supra, at 314-15 (citations omitted). Alternatively, all captive orcas are fed only frozen and then thawed dead fish, which prevents them from engaging in any of the social and cultural aspects of hunting. Williams, supra, at 34-35. 46 See Marino & Frohoff, supra, at 3; see generally JOHN S. JETT & JEFFREY M. VENTRE, KETO AND TILIKUM EXPRESS THE STRESS OF ORCA CAPTIVITY 1 (2011), http://theorcaproject.files.wordpress.com/2011/01/keto-tilikum-express-stress-of-orca-captivity.pdf; INGRID N. VISSER, REP. ON THE PHYSICAL & BEHAV. STATUS OF MORGAN, THE WILD-BORN ORCA HELD IN CAPTIVITY, AT LORO PARQUE, TENERIFE, SPAIN, at 2-5 (2012) [hereinafter Morgan Report], http://www.freemorgan.org/wp-content/uploads/2012/11/Visser-2012-Report-on-the-Phyisical-Status-of-Morgan-V1.2.pdf.

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a. Aggression Between Orcas and Between Orcas and Humans Evidence that the captive conditions at SeaWorld cause orca suffering is found in the “long record of orcas . . . killing and seriously injuring humans, other whales, and themselves in captivity.”47 Despite hundreds of years of encounters between seafarers, researchers, and orcas, there has been only a single reliable report of an orca seriously injuring a human being in nature.48 Yet as indicated by SeaWorld’s own corporate incident logs revealed in the proceedings regarding its violation of federal workplace safety laws after trainer Dawn Brancheau’s death, the company itself has recorded “600 pages of incident reports documenting dangerous and unanticipated orca behavior with trainers,” consisting of “some 100 occurrences of killer whales biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers” regularly for decades.49 These logs are also incomplete, as the Secretary of Labor revealed during these proceedings incident after incident that SeaWorld failed to include, including Ms. Brancheau’s death that spurred the citation.50 Most notoriously, Tilikum was involved in the death of a trainer at Sealand of the Pacific in 1991,51 a member of the public at SeaWorld in 1999,52 and Ms. Brancheau at SeaWorld in 2010.53 At times, Kayla has “displayed some aggressive tendencies towards trainers in a variety of ways, including . . . moving her head (mouth open) towards a trainers’ hand, and coming out of a line up towards a trainer with her mouth open.”54 Another orca on loan to a Spanish facility rammed and killed his trainer, who was trained by SeaWorld, during a training session that was overseen by a senior SeaWorld trainer in 2009.55 Similarly, the stressors of confinement at SeaWorld cause orcas to frequently exhibit abnormal aggression towards each other, further demonstrating that these conditions induce the behaviors that pose a hazard to trainers. In nature, aggression between members of a pod or between pods is rare.56 “[S]erious aggression among orcas in the wild is relatively low and most injuries, e.g., rake marks, are superficial.”57 Rather, conflict is resolved through dispersion and shifting alliances within groups of orcas (giving each other space),58 which they are unable to do in captivity. Since subordinates in captivity “are unable to leave the area to avoid the situation, stress, psychological, and physical trauma can occur.”59 At SeaWorld, orcas have no influence over their social associations as they are limited to the groups, tanks, and facilities to which they

47 Marino & Frohoff, supra, at 3 (citations omitted). 48 Keiko Reminds Man of Whale Attack, LODI NEWS-SENTINEL, Jan. 17, 1996. 49 E.g., Brief for Respondent Secretary of Labor at 25-28, SeaWorld of Fla. v. Perez (D.C. Cir. No. 12-1375). 50 Tr at 373-74, 448-57, 467-69. 51 Whales Kill Trainer as Spectators Watch, CHICAGO TRIBUNE, Feb. 22, 1991, at C3. 52 Park Is Sued Over Death of Man in Whale Tank, N.Y. TIMES, Sept. 21, 1999, at F5. 53 Ed Pilkington, Whale Killing: They Played as Usual. Then He Drowned Her, THE GUARDIAN, February 26, 2010. 54 Animal Profiles, supra, at 3 (Kayla) . 55 Tim Zimmermann, Blood in the Water, OUTSIDE MAGAZINE (July 15, 2011). 56 Ingrid N. Visser, Prolific Body Scars and Collapsing Dorsal Fins on Killer Whales (Orcinus orca) in N.Z. Waters, 24 AQUATIC MAMMALS 71, 79 (1998) (“There have been very few reports of conspecific aggression in wild killer whales.”). 57 Marino & Frohoff, supra, at 3 58 Id. 59 Couquiaud, supra, at 296.

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are confined by the staff,60 leading to stress and aggression despite that “[t]heir social rules prohibit real violence and they seem to have worked out a way to peacefully manage the partitioning of resources among different groups.”61 For example, at SeaWorld, orcas are separated by steel gates prior to training sessions, shows, or when they become aggressive towards each other.62 According to former SeaWorld orca trainers, “It is common for separated whales to bite down on the horizontal metal bars, or to ‘jaw-pop’ through the gates as they display aggression at each other. . . . As a consequence, tooth fragments can sometimes be found on the pool bottoms following these displays.”63 According to SeaWorld’s own behavioral logs, as well as photographs and affidavits, most of the orcas at SeaWorld have suffered broken and worn teeth from biting on the gates. As discussed in greater detail below, similar behaviors are also displayed as stereotypies, i.e., abnormal repetitive behaviors caused by the stress of inappropriate confinement and inadequate enrichment, and often result in fractured teeth, chronic pain, and painful dental drilling. In addition, in an attempt to establish social dominance in this environment, the orcas repeatedly charge with open mouths and rake others with their teeth.64 According to former SeaWorld trainers, this is aggressive behavior and its resulting injuries occur regularly. One trainer who worked with Tilikum noted that the orca would sometimes have streams of blood running behind him as he moved through the water and have to be held out of shows until his raked and bloody skin healed, after which he would exhibit nervous and agitated behaviors such as swimming in circles, making distress vocalizations, and avoiding contact with the other orcas.65 SeaWorld’s internal profiles from 2010 also note that Katina has “‘[r]ake’ marks in [her] right eye patch,”66 Kayla similarly has a “white scar through [her] right eye patch,”67 and that “[s]ocially, Nalani has been aggressed on by Taima [who has since died] multiple times.”68 Similarly, Keet of Sea World San Antonio has a “large scar in [his] left eye patch.”69 A number of incidents involving other orcas have been reported that resulted in injury or death.70 Indeed, following the death of orca Kandu, who fractured her jaw when she exhibited aggression toward Corky and died of fatal hemorrhaging of major arteries in her nasal passages,71 staff at SeaWorld San Diego repeated that this was “common behavior” and “the altercation was not a

60 Id. (“These disruptions also can be caused by the fact that some of the animals may have been removed from their original social structure, separated from family members or a social unit, and now have to adjust to a new social environment.”). 61 See generally Jeff Warren, Why Whales Are People Too, READERS’ DIGEST CAN. (July 2012) (quoting Marino), available at http://www.readersdigest.ca/magazine/true-stories/why-whales-are-people-too?page=0,3. 62 JETT AND VENTRE, supra. 63 Id. 64 See, e.g., Morgan Report, supra, at 4, 12; Tim Zimmermann, The Killer in the Pool, OUTSIDE MAGAZINE (July 30, 2010). 65 Zimmermann, The Killer in the Pool, supra. 66 Animal Profiles, supra, at 1 (Katina). 67 Id at 3 (Kayla). 68 Id at 8 (Nalani). 69 Id. at 12 (Keet). 70 See Zimmermann, Do Orcas at Marine Parks Injure One Another?, supra. 71 Performing Whale Dies in Collision with Another, N.Y. TIMES, Aug. 23, 1989.

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rare event at all.”72 Kandu’s death left Orkid, her calf, orphaned at 11 months old,73 and Orkid went on to have her own “long history” of aggressive incidents before the facility discontinued water work with her in 2006.74 Similarly, Ikaika, who was recently returned to SeaWorld San Diego after spending years at Marineland in Canada on a breeding loan, “exhibited certain aggressive tendencies towards the female killer whale at the Marineland facility. . . . Ikaika showed similar tendencies while at SeaWorld [Orlando] in both 2005 and 2006. In 2006, Ikaika raked a young calf with his teeth and had to be given tranquilizers by the SeaWorld staff.”75 SeaWorld’s veterinary records state that Ikaika was “showing some aggression to [Katina’s] calf” and was given Diazepam to “try to mellow him”—which had already been given to two other orcas at the facility (Katina and Taku) for this reason.76

b. Stereotypic Behaviors The harmful conditions at SeaWorld also cause orcas to exhibit stereotypic behaviors, at least one of which Dold himself has acknowledged as a “common management concern of [SeaWorld’s],”77 and which are strong indicators of unnecessary suffering. In 2005, a special edition of the journal Aquatic Mammals was published, featuring the results of a decade-long project by Laurence Couquiaud, a dolphin researcher with a degree in architectural design who has specialized in examining the design of captive facilities and husbandry. In the study, which made recommendations for the design of tanks and enclosures at captive facilities, Couquiaud observed that “some behaviours tend to occur when space is limited; the environment does not provide occupational activity; and when animals are kept alone, deprived of stimulus diversity, or are subject to environmental stress.”78 Another study on animal boredom acknowledged that “[s]tereotyped behavior patterns . . . tend to emerge when the animal cannot engage in behavior it is highly motivated to perform, such as searching or hunting for food, seeking social interaction, or just trying to escape.”79 Other research and history has shown that orcas’ inability to carry out even the most rudimentary behaviors that they would in nature causes cause abnormal, repetitive behaviors.80 These include biting on gates that separate the tanks at Shamu Stadium, the walls of the concrete tanks themselves, and spending inordinate amounts of time “surface resting” and lying motionless at the bottom of the tanks and on shallow ledges referred to as slide-outs.

72 Greg Johnson, Killer Whale Bled to Death After Breaking Jaw in Fight, L.A. TIMES, Aug. 23, 1989. 73 KIRBY, supra, at 170-71. 74 Tr. at 531, 556-59. 75 SeaWorld Parks & Entm’t v. Marineland of Canada, Affidavit of Lanny Cornell (Mar. 28, 2011) ¶ 40. 76 Id. ¶¶ 16-17. 77 Tr. 1730. 78 Couquiaud, supra, at 297. 79 Françoise Wemelsfelder, Animal Boredom: Understanding the Tedium of Confined Lives, in MENTAL HEALTH AND WELL-BEING IN ANIMALS (Franklin D. MacMillan ed. 2005), at 85. 80 Ros Clubb & Georgia Mason, Captivity Effects on Wide-Ranging Carnivores, 425 NATURE 473, 473 (2003); See generally JETT AND VENTRE, supra.

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i. Painful Dental Problems Caused By Chewing Metal Gates and Concrete Tanks

“As animals stay longer in their cages, they begin to direct their attention to inadequate substrates. They may lick, suck, or chew the floors and bars of their cages . . . .”81 “By the time the animal begins to develop a fixation on inadequate substrates, the situation has become severe.”82 At SeaWorld parks, orcas are separated by steel gates prior to training sessions, shows, or when they become aggressive towards each other.83 As noted above, according to former orca trainers at SeaWorld, “under-stimulated and bored animals . . . ‘chew’ metal bars [that separate the tanks] and mouth concrete pool corners, like the main stage at SWF [SeaWorld of Florida]. As a consequence, tooth fragments can sometimes be found on the pool bottoms following these displays.”84 When the orcas’ teeth break, it exposes the pulp which, if left untreated, will decay and form a cavity and can lead to “inflammation and eventually a focus for systemic infection.”85 Since many of the whales who suffer broken teeth are relatively young and the roots of their teeth have not yet matured, a root canal is not possible. “Instead, using a variable speed drill, trainers drill holes through the pulp and into the jaw via an endodontic procedure called a modified ‘pulpotomy.’”86 The orcas “often refused to submit to the drill by sinking down beneath the surface, shaking their heads violently, or breaking from control and swimming away. The staff knew it was a successful drill when blood started to bubble out from the bore hole.”87 The open holes are not capped or plugged and “represent a direct route for pathogens to enter the blood stream where they can then be deposited into the tissue of various organs throughout the body, such as the heart or kidney.”88 The trainers are therefore required to flush out the pulp cavity with water or an antiseptic solution two to three times daily to remove debris that can cause “abscess, bacteremia, and sepsis.”89 After SeaWorld was cited by the Occupational Safety and Health Administration for endangering the life and safety of its employees, Dold admitted in his testimony that the orcas at the company’s facilities “will erode the surface of their teeth, exposing the pulp cavity, and that can be and is a common management concern of ours.”90 This can lead to “an abscess or an infection within the pulp cavity of the tooth that’s under pressure,” so the trainers will “drill out the center

81 Wemelsfelder, supra, at 84. 82 Id.at 85. 83 JETT AND VENTRE, supra. 84 Id. 85 Id. 86 Id. 87 KIRBY, supra, at 162. 88 JETT AND VENTRE, supra. 89 Id.; see also Tr. 1730. 90 Tr. 1730.

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of the tooth,” which as of late 2010 had been done to approximately 14 of the 20 (70%) orcas at SeaWorld parks at that time.91 Indeed, the veterinarian who was responsible for treating Ikaika, on breeding loan from SeaWorld at Marineland of Canada, noted that “[a]t the time of his transfer to Marineland in 2006, Ikaika exhibited . . . a chronic dental problem with which he still has difficulties today. Due to the nature of the dental problem, Ikaika’s teeth will always be subject to infection. Ikaika’s problem is with the roots of various teeth in his mouth. These roots are open, allowing bacteria to enter and cause infections. . . . The normal course of treatment is to flush his teeth consistently, numerous times daily, and treat him with antibiotics and pain medications.”92 According to veterinary records, Ikaika had suffered from at least four dental infections prior to being transferred to Marineland, during which he “would exhibit redness and swelling in the area around the infected tooth, would have less energy and would be less willing to eat.”93 Days before his transfer, SeaWorld staff drilled two teeth so badly damaged and infected that they were giving off heat noticeable to the trainers.94 The veterinary records also reflected staff observations that “pulp is protruding from the third left mandibular canine” and there was infected discharge (“purulent exudate”) oozing from the “second left mandibular tooth.”95 Similarly, each of the adult orcas at SeaWorld Orlando has suffered broken and worn teeth from biting on the gates and concrete sides of their tanks, as have several orcas at SeaWorld San Antonio and SeaWorld San Diego. According to SeaWorld’s own behavioral profiles and/or as shown in the attached photographs: Tilikum has no remaining teeth intact on his lower jaw;96 many of Katina’s teeth have been broken, including “LL3 and LL4 badly chipped, LL6 broken at the base”;97 Kayla’s teeth have been badly broken and drilled through, including her “[u]pper left #6 tooth cracked, [she is] missing [her] upper left #8,” and at least 12 of her “[l]ower teeth [have been] drilled for flushing (right side #1-7, left side #2-6)”98; Shouka’s teeth are ground down to the bone, exposing the pulp99; Keet is missing part of his tooth on the lower right side of his jaw and has had “dental work” on multiple teeth including “LR1-2&11, LL1-2&11, UR10-11, UL9-11”100; “Unna’s lower font teeth are worn and “LL1-4 AND LR-1-5 have been drilled”101; Kyuqout has “extensive erosion of lower teeth and back upper teeth at and below gum line” as well as a “chip on posterior edge of LL7”102; Tuar has “exhibited extensive tooth rubbing” and “has been seen on multiple occasions picking at paint at the bottom of pools” and has a “cracked upper tooth in left side of jaw” and teeth LL1-7 and LR1-7 have been drilled”103;

91 Id. at 1743. 92 Affidavit of Lanny Cornell, supra, ¶¶ 16-17. 93 Id. ¶ 19. 94 Id.. 95 Id. 96 See Ex. 2, Photo 1, (Tilikum’s teeth). 97 See Animal Profiles, supra, at 1 (Katina); Ex. 2, Photo 2 Katina’s Teeth.. 98 See Animal Profiles, supra, at 3 (Kayla) ; Ex. 2, Photo 3 (Kayla’s Teeth). 99 See Ex. 2, Photo 4 (Shouka’s teeth). 100 See Animal Profiles, supra, at 12 (Keet). 101 See id at 22 (Unna). 102 See id. at 14 (Kyuquot). 103 Ssee id. at 20 (Tuar).

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Corky's animal profile says “Worn teeth on lower and upper jaw. Many decayed and discolored,” but the attached picture shows her teeth are virtually non-existent.104 Like Ikaika’s records that were only revealed in the course of litigation, SeaWorld’s veterinary records likely contain additional detail on the extent to which these orcas have devastated their teeth in frustration and its health effects. This high prevalence of painful broken and worn teeth and exposed pulp in captive orcas is in stark contrast to those in nature, many of whom “show little or no tooth wear, while those who do tend to specialize in prey with abrasive morphology. Broken teeth in wild orcas are rare.”105

ii. Surface Resting and Lying at the Tank Floor As discussed above, wild orcas regularly spend 95% of their time submerged and swim almost constantly. “[I]n aquaria . . . killer whales (and other whales and dolphins) rest while floating and lying on the bottom of pools.”106 At SeaWorld, “with little horizontal or vertical space in their enclosures, captive orcas swim only limited distances, with most spending many hours surface resting.”107 The amount of time captive orcas commonly spend engaging in these behaviors has never been reported in wild populations. In nature, resting orcas usually swim tightly together side by side, forming a resting line. Group diving and surfacing become closely synchronized and regular, with longer dives of 2-5 min duration separated by 3 or 4 short, shallow dives. Rate of forward progression is slow compared to foraging and traveling, and resting groups may stop altogether and rest motionless at the surface for [only] several minutes.108 This type of stationary resting at the surface has never been observed to be repeated more than three to four times in succession by the same individual.109 In contrast, researchers have reported captive orcas at SeaWorld alone and “completely immobile for about 1 h or even longer while floating at the surface.”110 One visitor reported during a visit to SeaWorld Orlando that Tilikum was observed doing so for nearly 3 and a half hours at a time.111 According to former trainers, Tilikum would surface rest with wide eyes and an arched posture consistent with preparing to flee, as well as swim in rapid circles, slam his head into the side of the tank, makes loud distress vocalizations, and avoid contact with other orcas.112 104 See Animal Profiles, http://www.orcahome.de/swprofiles2.pdf at 1 (Corky); Ex. 2, Photo 5 (Corky’s teeth.) 105 NAOMI A. ROSE, HUMANE SOCIETY INTERNATIONAL AND THE HUMANE SOCIETY OF THE UNITED STATES, KILLER CONTROVERSY: WHY ORCAS SHOULD NO LONGER BE KEPT IN CAPTIVITY 2 (2011) (citations omitted). 106 Lyamin, supra, at 1457. 107 JETT AND VENTRE, supra, at 5. 108 Ford, supra, at 654. 109 See Robert W. Osborne, A Behavioral Budget of Puget Sound Killer Whales, in BEHAVIORAL BIOLOGY OF KILLER WHALES 211, 231 (Barbara C. Kirkevold & Joan S. Lockard eds. 1986). 110 Lyamin, supra, at 1458. 111 The Orca Project, Tilikum’s Lonely Life After Dawn, http://theorcaproject.wordpress.com/2010/09/03/seeing-is-believing-tilikums-lonely-life-after-dawn/ (Sept. 3, 2010). 112 Complaint, Tilikum et al. v. SeaWorld Parks & Ent., Inc. & SeaWorld, LLC, No. 11 Civ. 2476 (S.D. Cal. 2011), at ¶ 42.

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Similarly, at SeaWorld San Diego, Dr. Heather Rally, a PETA Foundation staff veterinarian with experience with marine mammals, reported that, at the conclusion of an orca show, the orca Ikaika swam to the center of the pool and lay motionless for at least 15 minutes, “occasionally lifting the head and opening the mouth as if swallowing air.”113A second orca with a severely collapsed dorsal fin was exhibiting, according to Dr. Rally, even more alarming stereotypical behavior, in which he/she was floating motionless in the corner near the exit of the pool with the right lateral side of the body facing up and the head touching the metal gate. Dr. Rally reported that the orca maintained this position for at least 15 minutes, as he/she appeared to desire to exit the enclosure but was not allowed to do so.114 Captive orcas have also been reported to spend inordinate amounts of time lying motionless at the bottom of the tanks—“[l]ying on the bottom of the pool is . . . characteristic of all adult killer whales currently residing at SeaWorld, San Diego.”115 “Single episodes of rest on the bottom for these killer whales lasted between 3 and 7 min.”116 This behavior has never been observed in wild populations.

B. Dold’s statement is fraudulent because, in addition to orcas, other animals at

SeaWorld are not “thriving,” but rather, suffering, “both mentally and physically.”

Dold wrote that in addition to the “whales” at SeaWorld, “every other animal in our parks [is] thriving, both mentally and physically.” While most of the public outcry regarding SeaWorld has focused on poor orca welfare, other marine mammals at SeaWorld endure similar suffering.

1. A veterinarian observed persistent health problems, stereotypic behaviors, and aggression between animals at SeaWorld.

On September 4, and October 18, 2014, Dr. Rally visited SeaWorld San Diego and reported scars and lesions on dolphins, orcas, and other animals; witnessed unprotected and unsupervised contact between visitors and aggressive animals; and observed listless animals engaging in abnormal, repetitive behavior likely caused by stress.

a. Apparently incompatible dolphins housed together Dr. Rally observed and documented several dolphins acting aggressively towards one another, specifically, “ramming, chasing, and flipping, and attempting to slap each other with the[ir] flukes.”117 “[S]everal dolphins also presented linear rake-like scars caused by dolphins scraping their teeth across each other’s skin, a common form of aggression observed in captive animals” known as raking.118 Dr. Rally also documented at least two dolphins who had rake marks on their dorsal fins, one with “a shredded dorsal fin at both the tip and the caudal edge at the base,” a dolphin with “extensive scarring across skin,” a dolphin with “severe scarring” due to

113 See Ex. 2, Photo 6 (Ikaika at surface). 114 See Ex. 2, Photo 7, 8 (Orca floating on his or her side). 115 Id. at 1459. 116 Id. 117 See Ex. 2, DVD, Video 1, Video 2 and Video 3. 118 See Ex. 2, Photos 9-10.

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“traumatic injury from other dolphins,” as well as two dolphins with lesions that are “most likely healed traumatic injuries from the teeth of another dolphin after being bitten.”119 According to Dr. Rally, because “rake mark scars usually disappear within 6 months of being inflicted, with a maximum of 20 months, the incidence of aggression between cetaceans at SeaWorld is not only commonplace, it is also happening currently, as various stages of rake mark healing were observed during this visit.”

b. Extensive scarring on belugas’ bodies, likely due to inappropriate enclosures, incompatible housing, and inadequate transport

Dr. Rally observed that the three adult belugas, Ferdinand, Allua, and Klondike, all had “previous injury to the epidermis, evidenced by extensive linear scars across their bodies, at the tip of the rostrum, cranial surface of the flippers, shoulder, axilla, and on the melon.”120 She opined that the scarring pattern on the rostrum121 is consistent with “cranial-caudal abrasion or avulsion of the epidermis from rubbing against hard surfaces while in motion,” and that the rest of the scarring “may have resulted from scraping the skin against hard surfaces in the enclosure and/or from inter-personal aggression.” Dr. Rally also documented scars at the shoulder and axilla of a beluga, which she stated are “commonly incurred in captive cetaceans during transportation in slings outside of the water.”

c. Several dolphins forced to perform while suffering from potentially serious skin conditions

Dr. Rally observed and documented that dolphins involved in human interactions “had obvious and sometimes extensive skin lesions including some irregularly shaped oval-to-circular plaque-like lesions with a mottled grayish-white coloration and a dark grey perimeter.”122 Although diagnostic testing would be required to confirm this diagnosis, Dr. Rally noted that “these lesions appear similar to those caused by dolphin pox-virus.” Studies on the pox virus and such lesions “pointed to one consistent feature; its relationship with compromised environmental conditions and consequent general health of affected individuals.” See also Marnel Mouton and Alfred Botha, Cutaneous Lesions in Cetaceans: An Indicator of Ecosystem Status?, in New Approaches to the Study of Marine Mammals 123, 133 (Aldemaro Romero and Edward O. Keith eds., 2012). Dr. Rally observed a second pen that contained at least 8 adult bottlenose dolphins and reported that “[s]everal animals in this enclosure have skin lesions and scars, including pox-like lesions, rake marks, and splotchy skin discoloration of unknown origin.”123 She also observed one dolphin who was “of particular concern,” as he or she was suffering from “severe, diffusely distributed skin lesions of unknown etiology.”124

119 See id. 120 See Ex. 2, Photos 11-13. 121 See id.,, Photo 13. 122 See id., Photo 14-16. 123 See id., Photo 17, 18. 124 See id.

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The dolphins who were forced to perform in the dolphin show were also suffering from scars and lesions.125

d. Stereotypic behaviors Dr. Rally reported that only one male walrus was on display during her first visit, likely a 28 year old wild-born Arctic Walrus named Obie. Obie was observed engaging in “very serious stereotypic behaviors that are a clear indication of psychological distress and/or boredom, and could also be compromising the animal’s physical health.” Specifically:

These behaviors included swimming in repetitive, predictable circles around the enclosure in a listless and aimless manner. Then, after each lap, the animal would return to the shallow water near the observation glass, press his mouth against the glass, and proceed to spend about 1-2 minutes repeatedly regurgitating and swallowing his food (squid). He would then turn around and flip his head up above water before circling the enclosure again. Behavioral regurgitation and re-ingestion of food is a common stereotypic behavior in captive wild animals, and can cause chronic esophageal irritation, placing this animal at risk of esophageal ulceration from chronic exposure of the mucosa to gastric acid, and can even predispose to esophageal carcinoma later in life.126

Abnormal stereotypic behavior, such as that exhibited by Obie, is likely caused by a lack of sensory stimulation and suggests poor welfare and suffering.127 Each of Dr. Rally’s observations clearly indicate that the animals at SeaWorld are not thriving, neither mentally nor physically.

2. Additional animal injuries documented at SeaWorld facilities

On September 9, 2014, Vice.com published an article that included two photographs of a Green or Loggerhead sea turtle with a “raw, bloody wound,” which the author reportedly took while on a public tour.128 The wound appears to be a few inches long and wide where the turtle’s body connects to his left front leg.129 Having reviewed the photographs, Dr. Rally opined that the sea turtle’s wound “definitely seems to be infected” and that “yellow material” in and around the wound “is all necrotic material.” According to the article’s author, when a guest on the tour “asked what was wrong with [the sea turtle], the girl manning the enclosure said something about antibiotics, before pushing the turtle back into the water and out of sight.”130

125 See id., Photo 19-21. 126 See Ex. 3, DVD, Video 4. 127 See Georgia J. Mason, Stereotypies and Suffering, 25 Behavioural Processes 103-04 (1991); Ronald R. Swaisgood & David J. Shepherdson, Scientific Approaches to Enrichment and Stereotypies in Zoo Animals: What's Been Done and Where Should We Go Next?, 24 Zoo Biology 499, 500 (2005). 128 Jamie Lee Curtis Taete, “The Worst Thing About SeaWorld Is How F****** Boring It Is,” Vice.com, Sept 9, 2014, http://www.vice.com/read/the-worst-thing-about-seaworld-is-how-fucking-boring-it-is-111 129 See Ex. 2, Photo 22. 130 Taete, supra note 116; See Ex. 2, Photo 23.

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Also recently, at SeaWorld San Antonio, eyewitnesses reported that two dolphins performing a jumping trick crashed, ejecting one from the tank to the concrete walkway below.131 At SeaWorld Orlando, a pilot whale got “stuck” on the shallow platform that SeaWorld uses to pose the animals. Carlo De Leonibus, the person who posted the video, said that SeaWorld employees brushed him off when he alerted them to the situation and that the whale struggled for 20 to 25 minutes before trainers finally pushed the whale back in the water.132 Moreover, since 2012, there have been two reports of dolphins at SeaWorld who sustained lower jaw injuries, potentially because of unsafe enclosures, and had open wounds.133 Additionally, during Dr. Rally’s recent visit, she opined that some dolphins had scars that could have resulted from ramming into enclosure walls. The conditions of animals’ confinement at SeaWorld are physically and psychologically devastating, as demonstrated by their frequent displays of abnormal behaviors that are known to result from particularly damaging captive environments. Evidence of but one or two ways in which animals continue to suffer at SeaWorld would be more than sufficient to demonstrate that Dold’s statement as to animal well-being at SeaWorld is deceitful. But taken together, the animals’ consistent display of abnormal, and sometimes dangerous, behaviors, as well as their persistent health problems, as acknowledged by SeaWorld’s own records and of which Dold must be aware as the corporation's head veterinarian, demonstrate that Dold’s characterization of “the whales, along with every other animal” at SeaWorld as “thriving” is patently fraudulent.

C. Dr. Dold’s statement is “related to the practice of veterinary medicine.” The “practice of veterinary medicine” is defined to include “diagnosing the medical condition of animals,” "the determination of the health, fitness, or soundness of an animal," and “representing oneself by the use of titles or words, or undertaking, offering, or holding oneself out, as performing any of these functions.” Fla. Stat. Ann. § 474.202.

By claiming “unequivocally” that SeaWorld’s “whales, along with every other animal in [SeaWorld’s] parks, are thriving, both mentally and physically,” Dold has “held himself out” as having “determin[ed] the health, fitness, or soundness” of the animals at SeaWorld. Moreover, even if Dold’s statement is not, in and of itself, a “determination of the health, fitness, or soundness” of the animals at SeaWorld, it unquestionably “relate[s]” to such a determination, and in turn, “relate[s] to the practice of veterinary medicine” within the meaning of the statute.

As PETA has alleged “legally sufficient” facts to show that Dold’s statement is fraudulent and “relate[s] to the practice of veterinary medicine,” in violation of Section 474.214(1)(o), the

131 See Ex. 3, DVD, Video 5. 132 See id., Video 6. 133 See Ex. 2, Photo 24, 25; Correspondence from Elena Kravtsoff, Legal Fellow, to Robert M. Gibbens, D.V.M., Western Regional Director, USDA-APHIS-Animal Care, Compl. No. W13-051, (Jan. 17, 2013) (requesting that the agency determine whether a dolphin's bloody lower jaw abrasion resulted from unsafe enclosures); Correspondence from Jared Goodman, Counsel, to Robert M. Gibbens, D.V.M., Western Regional Director, USDA-APHIS-Animal Care, Compl. No. W13-041, Dec. 11, 2012 (requesting an investigation of whether a dolphin suffered a serious injury on the lower mandible as a result of unsafe enclosures).

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Department of Business and Professional Regulation “shall cause to be investigated” this complaint pursuant to Section 455.225.

II. Dr. Dold’s statement constitutes “misleading advertising” in violation of Fla. Stat. Ann. § 474.214(1)(e).

By writing in his Florida Today guest column—specifically to address the criticism the company has received because of the well-documented animal welfare problems discussed above and resultant drop in attendance—that “whales, along with every other animal” at each of SeaWorld’s three parks are “thriving, both mentally and physically,” Dold engaged in “misleading advertising” as defined by the Board. See 61 FL ADC 61G18-21.001(2).

A. Dold’s statement constitutes “misleading advertising” as it “induce[s] members of the public” into an “obligation relating” to Dold’s “professional services.”

As discussed above, Dold’s characterization of the whales and other animals at SeaWorld as “thriving” is false and “misleading.” Additionally, Dold’s statement is an advertisement under the plain language of the Board’s regulations. And as such, it appears to violate the prohibition on “[a]dvertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content.” Fla. Stat. Ann. § 474.214(1)(e). The Board defines “advertisement” as

any statements, oral or written, disseminated to or before the public or any portion thereof, with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter any obligation relating to such professional services.

61 FL ADC 61G18-21.001(2). Dold’s statement falls plainly within this definition and therefore constitutes an advertisement. First, an “advertisement,” as defined for purposes of the prohibition of “misleading advertising,” pertains specifically to those representations disseminated to “the public or any portion thereof.” Dold’s statement, having been published in Florida Today, was disseminated to “the public.” Indeed, Dold’s statement has misled a significant portion of the public, as Florida Today’s substantial readership134 would reasonably rely on Dold’s determination that the whales are “thriving,” given his position as Vice President of Veterinary Services at SeaWorld. Second, under 61 FL ADC 61G18-21.001(2), the statement need not concern a particular charge for a particular service. Rather, it is sufficient that the statement is “relating to” the veterinarian’s “professional services.” The numerous animal welfare concerns at SeaWorld facilities unquestionably fall within the purview of Dold, the company's Vice President of Veterinary Services. Dold’s addressing these concerns in Florida Today to induce readers to come to 134 As of 2009, Florida Today was read by 85% of Brevard County’s 449,600 adults. A Market Place in Motion, Florida Today (Feb. 23, 2009) http://archive.floridatoday.com/content/services/advertising/images/MediaInfoBk.pdf

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SeaWorld or buy its stock “relates” directly to his “professional services” and the well-being of the animals he is responsible for overseeing. This benefits both Dold and SeaWorld, as SeaWorld’s positive public image necessarily would help to ensure Dold’s continued employment and compensation. Moreover, Dold’s statement served as a means of “inducing” Florida Today readers to come to SeaWorld with a clear conscience, confident that the dollars they spend visiting SeaWorld would not contribute to an enterprise that causes the animals mental and physical suffering and that the veterinary services provides by the company cannot adequately address. Similarly, the statement is apparently intended to induce shareholders and prospective shareholders to maintain and/or acquire an investment in SeaWorld, in light of the growing public opposition to SeaWorld and recent class action lawsuit filed against the company for misleading shareholders and prospective shareholders by offering allegedly false alternative explanations for the sharp decrease in attendance in the wake of the documentary film Blackfish, which exposed the general public to the suffering to which the orcas at SeaWorld are subjected. As PETA has alleged “legally sufficient” facts to show that Dold’s statement is a misleading advertisement in violation of Section 474.214(1)(e), the Department of Business and Professional Regulation “shall cause to be investigated” this complaint pursuant to Section 455.225.

Exhibit 1

Guest column: SeaWorld respondsDr. Christopher Dold, Guest columnist 11:48 a.m. EDT September 4, 2014

Media attention during the past 18 months has been focused on SeaWorld and a film called "Blackfish." Much of it, including Carl Hiaasen's recent column in FLORIDA TODAY, "SeaWorld's woes increase," is inaccurate and does a disservice to the dedicated men and women who care for animals at SeaWorld.

I proudly represent the 1,500 zoological professionals who care for, study, train, and interpret the animals at SeaWorld; this is a rare privilege. Our team shares a single focus: promoting the health and well-being of the animals that live within our parks and the thousands of orphaned, ill and injured animals that we rescue.

FLORIDATODAY

Carl Hiaasen: SeaWorld's woes increase

(http://www.floridatoday.com/story/opinion/columnists/syndicated/2014/08/20/carl-hiaasen-seaworlds-woes-

increase/14351201/?from=global&sessionKey=&autologin=)

This skilled and compassionate group is SeaWorld. SeaWorld is not a faceless corporation. SeaWorld is us. Our culture of caring for animals extends all the way to the very top of our organization, and pervades every corner; even those who don't work with animals feel they work for an animal organization. There is pride in that.

I have enjoyed much of Mr. Hiaasen's writing over the years as he is a champion of Florida wildlife. He has much in common with us. I think he would be excited to learn that right now, endangered Florida species like manatees and gopher tortoises are being nursed back to health at SeaWorld and prepared for a return to the wild. In Orlando, Tampa, San Antonio, and San Diego, we are rehabilitating wild animals and returning them to the ocean, land and sky.

We are investing millions of dollars, in addition to our own hard work, in conservation efforts domestically and abroad. We are engaged in science to enhance understanding of killer whales and more.

Today, we are conducting research that will improve biologists' ability to reliably measure reproductive hormone levels from wild killer whales. Biologists in the Pacific Northwest are determining whether endangered and threatened killer whales are eating enough and if they are pregnant using techniques validated by studying the whales in our parks. And right now, our whales are participating in hearing studies so we can better understand the impacts of anthropogenic sound on wild killer whales. This is what our whales do every day, working closely with their human trainers, along with husbandry (health) behavior training, play, exercise, enrichment, socialization, shows, and guest encounters.

As a veterinary professional who has dedicated his life to ensuring the health of animals, I can unequivocally state that our whales, along with every other animal in our parks, are thriving, both mentally and physically. More than 80 percent of the whales and dolphins that live in our parks were born in these very same parks. Our world is nothing like the image portrayed by the film and unthinkingly reiterated by Mr. Hiaasen.

That is why a column lauding "Blackfish" is so frustrating to me.

If you watch the film, do so with skepticism. Recognize it for what it is: far closer to propaganda than to journalism. The underlying agenda is focused not just on whales and dolphins, but the elimination of all zoological parks.

Wit and skepticism have always marked Mr. Hiaasen's writing. I would prefer he'd apply those qualities equally on both sides of this issue. In movies we are supposed to suspend disbelief. It appears that is what Mr. Hiaasen has done here.

The guests who visit SeaWorld make our work possible. For five decades, SeaWorld has provided an experience that millions of people cherish. We bring families and animals together in ways that are inspiring and educational. We connect people to the sea even if they have never seen the ocean. We inspire children to dream of adventurous careers working with, and saving, the amazing animals of the sea. I know this because I was one of those kids. Everyone I work with was one of those kids.

If there is a greater awareness of the fascinating animals of our oceans — and a greater sensitivity to the challenges they face in an increasingly imperiled world — surely even Mr. Hiaasen would acknowledge that some of the credit belongs to SeaWorld.

(Photo: 2011 AP FILE )

Page 1 of 3Guest column: SeaWorld responds

11/12/2014http://www.floridatoday.com/story/opinion/columnists/guest-columns/2014/09/02/guest-column-seawo...

Dold is vice president of veterinary services with SeaWorld Parks & Entertainment.

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Page 2 of 3Guest column: SeaWorld responds

11/12/2014http://www.floridatoday.com/story/opinion/columnists/guest-columns/2014/09/02/guest-column-seawo...

Exhibit 2

1.

No remaining teeth on Tilikum’s lower jaw

2.

Katina’s broken teeth

3.

Kayla’s worn and drilled teeth

4.

Shouka’s worn and drilled teeth

5.

No remaining teeth on Corky’s lower jaw

6.

Ikaika floating at the surface of the pool in a stationary position

7.

An orca floating on his or her side

8.

An orca floating on his or her side

9.

Rake mark scars on the dorsal fin of a dolphin

10.

Fresher rake marks on the dorsal fin of another dolphin in the same pool

11.

Scarring on the rostrum of a beluga

12.

Linear and raking scars from aggression on the skin of a beluga

13.

Scars from injury to the cranial border of the right pectoral fin and the shoulder of a beluga

14.

A dolphin with diffuse skin lesions across his or her body

15.

Visitors reaching to touch a dolphin with diffuse skin lesions across his or her body

16.

Visitors in the water with a dolphin exhibiting skin lesions

17.

A dolphin with severe, diffusely distributed, and possibly infectious skin lesions

18.

A dolphin with severe, diffusely distributed, and possibly infectious skin lesions

19.

Dolphins exhibiting lesions and scarring

20.

Full body lesions and severe scarring on dolphins

21.

Full body lesions on dolphins; the dolphin the middle has possibly infectious, multi-focal-to-

coalescing, dark grey, irregular lesions, distributed across his or her entire body

22.

Sea turtle with bloody wound

23.

Sea turtle with bloody wound apparently being pushed back into the water

24.

Dolphin with lower jaw injury apparently due to unsafe enclosure

25.

Dolphin with lower jaw injury apparently due to unsafe enclosure