Yes, California Can Really Ban Shamu, Legal Experts Say

CREDIT: AP Photo/Phelan M. Ebenhack


CREDIT: AP Photo/Phelan M. Ebenhack

This week a California state legislator proposed legislation that would ban killer whale shows at SeaWorld in San Diego. The bill would outlaw orca performances, ban captive breeding programs, and prohibit the export of whales out of the state. Existing whales would be retired to sea pens or permitted to be displayed but not performed. SeaWorld argues the law would likely be invalid under the state and federal constitutions. But prominent animal law experts contacted by ThinkProgress strongly disagree.

The legislation is a response, in part, to the controversial documentary Blackfish which alleged that SeaWorld subjected killer whales to mistreatment and exposed trainers to extreme danger. In 2010, a orca named Tilikum killed trainer Dawn Brancheau. It was the third death linked to Tilikum, who still performs at Sea World in Florida.

In response to the new legislation, SeaWorld suggested the bill, even if enacted would be struck down. “The premise behind this proposed legislation is severely flawed on multiple levels, and its validity is highly questionable under the United States and California Constitutions,” Seaworld spokeswoman Becca Bides said in a statement. Bides dismissed that bill as the work of “extreme animal rights activists, many of whom regularly campaign against SeaWorld and other accredited marine mammal parks and institutions.”

But four leading animal law experts contacted by ThinkProgress believe that, if SeaWorld challenged the law, they would not be successful.

Any constitutional challenge would likely fall under the Fifth Amendment to the U.S. Constitution which prohibits “takings” of private property “without due process of law” or “just compensation.” (Article I, Section 19 of the California constitution contains similar language.) SeaWorld could argue that prohibiting killer whale performances and other restrictions in the bill constitutes a taking of their property.

Kathy Hessler, a law professor and the Director of the Animal Law Clinic at Lewis & Clark Law School, noted that the “right to own wild animals has always been highly qualified and has been largely regulated.” Hessler cited existing regulations on “the transportation, breeding and exhibition of certain animals,” as well as OSHA regulations limiting human interaction with different species. Therefore, it is not at all clear that additional restrictions on the ownership of orcas would constitute a taking under state or federal law. Even if the new law was ruled a taking by a court, SeaWorld “would be entitled to due process and to compensation.” But it would not invalidate the law.

Hessler’s analysis was echoed by other top animal law scholars. Gary L. Francione, law professor at Rutgers and author of numerous books on animal law, told ThinkProgress: “I am not sure on what basis anyone claims that this violates the federal Constitution. I suppose that they might argue that it is a taking of property that requires compensation but I think that is weak.”

David Farve, Professor of Property and Animal Law at the Michigan State College of Law said that he was “not aware of anything on the federal level that would trigger a constitutional violation” and that the proposed legislation “appears to me to be a lawful exercise of state police power to deal with animal related issues.”

The harshest dismissal of SeaWorld’s claims came from professor Taimie Bryant, who has been studying animal law at UCLA since 1995. Bryant said that SeaWorld had no real legal argument at all and their actual strategy was to trigger “unjustified bias against those who brought forward or support the proposal.” She called the proposed legislation “long overdue.”

Indeed, Hessler explained that “some cities and states tightly restrict private ownership of wild animals given the inherent dangers to citizens and because of the increasing awareness of the cruelty involved for the animals.” This is in response to “new scientific evidence regarding the suffering of animals, and to an evolving societal consensus that certain types of harm are unnecessary.”