Born Free
Maui confronts the thorny issue of
dolphins in captivity.

Andrea Baer

November 14, 2001

"Somebody saw another dead dolphin today folks," said radio deejay Dick Wainwright. "This time she’s been swimming under Koko Marina Bridge." Twenty-odd years ago, this and many other such reported sightings, day after day, served to kindle the first, but by no means the last, controversy to roar through the Kewalo Basin Marine Mammal Laboratory (KBMML).
      One spring morning in 1977, two dolphins were taken out of their KBMML tanks by a posse of vigilantes and released into the ocean.
      Denounced as hoodlums by KBMML administrators and others who were sure the dolphins’ "liberation" had delivered them to a slow and terrifying death, the vigilantes were hailed as heroes by those who believed the dolphins had finally been freed from prison. For months, with each new sighting — real or imagined — the spotlight was cast on Ken LeVasseur and Steve Sipman, the two former KBMML employees responsible for the deed.
      The current controversy besetting the University of Hawai‘i-Mänoa’s KBMML and its nonprofit offshoot, The Dolphin Institute (TDI), both founded by psychology professor Louis M. Herman, revolves around the attempt to relocate from the aging Kewalo facility — at the state’s request — to a planned theme park facility on Maui.
      Just last year, Herman’s Dolphin Institute, the productive contributor to cetacean research and knowledge, looked as if it had finally found a new home in the Harry and Jeanette Weinberg Foundation’s proposed Maui Nui Park, a $20 million, grandiose theme park intended for tourists, to be built on a 29-acre hunk of land at a key intersection in North Kïhei.
      In September 2000, the Maui Planning Commission unanimously approved the park proposal. But the same forces that thwarted TDI’s previous effort to relocate to Maui in 1996, have emerged again, and they’re a motivated and aggressive arm of the burgeoning animal-rights movement — anti-captivity groups questioning the value, as well as the ethics, of keeping these highly intelligent animals in confinement.
      In direct response to the proposed relocation, a bill for an ordinance "relating to the protection of cetaceans" would make the exhibition and display of captive dolphins and whales punishable up to a $1,000 in fines and/or one-year imprisonment. Draft bill HSED16 was introduced to the Human Services and Economic Development Committee by Maui County Councilmember Jo Anne Johnson last August. Johnson says the bill is currently awaiting revisions by the Maui County Corporation Counsel. It will then be up for a vote in the committee.

Home at the theme park
"Together we will ensure Maui’s dolphins stay free. Free of charge, free of exploitation," said Maui cetacean researcher Cynthia Matzke succinctly after the September hearing on the bill. Matzke’s simple statement echoed the sentiments of many other residents and animal-rights organizations.
      "What we’re talking about is constructing a new prison," said Ryan Shapiro, a coordinator with Animal Rights Hawai‘i.
      Matzke and Shapiro’s words reflected the increasingly absolutist fervor that dwells just opposite TDI’s serene and academic approach to its field of inquiry.
      Why all the fuss? It’s not like TDI has been torturing its captive dolphins, or that it forces them to perform unnatural and maybe painful tricks before a crowd of noisy humans at places like SeaWorld and O‘ahu’s own Sea Life Park. (There is also a pricey dolphin "petting lagoon" called DolphinQuest —$125 per adult for a half-hour — at the Big Island’s Hilton Waikoloa Village Resort.)
      There are just three Atlantic bottlenoses at issue, dolphins who may soon be getting almost 10 times more space, once they move out of Kewalo and out of their two 6-foot-deep, 50-foot-diameter home tanks at Kewalo and move on to Kïhei.
      Critics contend that TDI’s planned facility on Maui — with its dolphins — is conceived to be an anchor tenant for the Maui Nui theme park, which, in itself, will be nothing more than a conveniently located tour-bus stop, shopping mall and amusement park, and only vaguely Hawaiian at best.
      Not only will the park’s planned aviary house nonindigenous birds and plants, but, Matzke points out, "the only thing Hawaiian about TDI’s dolphins are their names: Akeakamai, Hiapo and ‘Elele." The TDI dolphins were captured off the coast of Mississippi. ‘Elele has since died of peritonitis, an inflammation of the abdominal lining caused by a bacterial infection of unknown origins, while Akeakamai is pregnant and scheduled to give birth in late spring.
      Sources say construction of the park, slated to begin this year, has been postponed until at least 2002. (The Weinberg Foundation and the project architect both declined interviews for this story.)
      According to park plans submitted to the county, the Maui Nui project will be "a family education entertainment park which focuses on the history of Hawai‘i." The new dolphin quarters, a series of three interconnected demonstrations, interaction and research "lagoons," cloverleaf in one part of the park surrounded by attendant structures for husbandry, research, learning and observation.
      Across a bridge from dolphin-land will be the "Plantation Village," with a wedding chapel, lü‘au gardens, retail shops, a Hawaiian cuisine restaurant and an indoor amphitheater, conceived by the design team behind the 780-seat Maui Myth &Magic Theatre in Lahaina. Nearby, an approximately 130,000-square-foot main building will have an IMAX theater, specialty stores and exhibits about volcanoes, tsunamis and other Hawai‘i curiosities. Later phases include an exhibition hall, a virtual-reality ride and a display area for demonstrations, exhibits and sales of local products.
      According to the plans, TDI’s facility will be set back less than 100 feet from one of Maui’s busiest intersections, with the isolation tank for sick or stranded dolphins just 30 feet away from Pi‘ilani Highway.
      In a March 2, 2000, letter to the Maui Planning Department, state Department of Land and Natural Resources biologist Skippy Hau expressed reservations about TDI and Maui Nui with respect to the project’s "no significant impact" claim. Hau pointed out that the parcel lies within a tsunami zone, and claimed that red dust stirred up by construction in the South Maui area, as well as airborne ash from cane fires, would blow over the dolphin pens. He also noted that the project’s impervious surfaces and their impacts on groundwater recharge and offshore algal blooms.
      "It’s like a biological jigsaw puzzle," Hau wrote. "All the developments eventually contribute to a cumulative negative impact. But people will always be the priority."
      "All DLNR concerns will be remedied or addressed in accordance with the conditions of the Planning Department’s approval letter," Herman responded. Regarding the tsunami inundation zone, he said, rather awkwardly, that the TDI facility would be located "approximately 5 acres away from the tsunami zone." He also noted that the facility will be built on a berm to prevent flooding.

Education equals protection
Hau raised additional questions regarding replenishment of TDI’s stock of dolphins. The question resonated with others: "If they’re not successfully breeding, how will TDI finance these fancy concrete tanks without perpetuating the marine-mammal trade?" asks Mark Berman, assistant director of the San Francisco-based International Marine Mammal Science Project at Earth Island Institute, an organization that was instrumental in initiating the dolphin-safe tuna campaign, and is active in the ongoing release process for Keiko, the orca star of the Free Willy movie series.
      Herman has repeatedly stated that no TDI dolphins will be taken from the wild. He says that although TDI has no intentions of acquiring any more dolphins at present, it is hoped that the current crew of dolphins will successfully reproduce or, if necessary for purposes of genetic diversity, animals will be acquired from one of several captive breeding programs in the United States.
      Other objections to TDI’s relocation to Maui have focused on the explicitly paid-attraction nature of the arrangement with Maui Nui management: the proposed separate entrance fee to the TDI facility within the park; the bleacher-style seating that will flank the demonstration area; and the exhibitor’s license obtained by TDI from the Animal and Plant Health Inspection Service on August 7, 2000, which has since lapsed.
      Herman insists the demonstrations will not consist of the type of performances seen at marine parks. He argues that displays of intelligence, rather than physical prowess, make people feel more of a connection with dolphins, which, in turn, will encourage visitors to the facility to become involved in efforts to protect them in the wild. Herman says the TDI facility will be the only one of its kind — an institution deeply committed to education and research. To date, TDI and KBMML have awarded over 30 degrees in master’s and doctoral programs.
      At the planning commission hearing, a Girl Scout troop, as well as a large number of TDI volunteers and schoolteachers, agreed with Herman’s educational zeal and testified to their expectation that the institute would provide an excellent educational opportunity.

Dolphin intelligence
"What’s educational about having dolphins brutally snatched from their families in the wild?" asks Berman, who would like to see the ocean mammals live in a more natural sea pen.
      The value of keeping animals in captivity to educate and entertain the public has long been hotly debated. As the president of the Zoological Society of Philadelphia, William Donaldson, once observed, "The overwhelming majority of our visitors leave us without increasing either their knowledge of the natural world or their empathy for it. There are even times when I wonder if we don’t make things worse by reinforcing the idea that man is only an observer in nature and not a part of it."
      Apparently, many would concur, as attitudes toward zoos in general — and dolphin shows in particular — began to shift; as dolphinariums in places like Turkey, Chile and India have been shuttered for good.
      Tests and studies, many of which originated with TDI, reveal dolphins to be second only to humans in intelligence. Some experts go so far as to say intelligent beings developed along two evolutionary lines, with humans at the head of the terrestrial branch and dolphins at the head of the aquatic one. The dolphin brain has a body-weight ratio roughly the same as a human’s and has close to the same proportion of neocortical tissue, where learning takes place. Studies show dolphins are highly social and call one another by name. Language research highlights consistent match-ups between behavior and vocalizations. And experiments with mirrors show the animals are self-aware, meaning they can distinguish themselves from others, perhaps making them capable of empathy.
      Much of documented dolphin intelligence is the direct result of studies conducted at TDI, which has contributed over 100 scientific publications on cetacean cognitive and sensory processes. In one experiment, the researcher combined the "tandem" and "create" signs, and the subjects, after a bit of whistling back and forth, then created and carried out a unique behavior simultaneously. Dolphins are also able to respond appropriately to television images and can describe what’s behind solid objects using echolocation.

Perverted behavior
"Behavior forced upon intelligent prisoners is perverted behavior," Jacques-Yves Cousteau once said. Some scientists believe it is their very nature which makes dolphins unsuited for study in confinement. Dolphins tend to live in large groups and tight family units and are constantly on the move, normally spending just a fraction of their time at the surface. In captivity this is reversed, and their world is shrunk to a few tail strokes, or a dizzying infinitude of circling.
      In a handbook on captive cetaceans published by the Whale and Dolphin Conservation Society in 1998, cetologist Kenneth Norris makes another point. "In captivity," he wrote, "shy porpoises can’t move away from aggressive ones. In fact, confinement compresses natural activity so tightly that it may be distorted virtually beyond recognition."
      Studies show adult, juvenile and stressed dolphins all have their own sets of stereotypic signals or "language," which is why expecting those dolphin subjects captured very young to have communication abilities after they grow up, without ever being exposed for any reasonable period to natural communication, might be considered unreasonable.
      Unlike a circus elephant, you can’t very well chain down a dolphin and spend the next few days breaking its spirit by beating it into submission with bull hooks and baseball bats, so how do you get it to work with you? Ask it to cooperate out of the goodness of its heart?
      Herman says he never mistreats or starves the dolphins to make them behave. "We establish a very close social bond. We are as bonded to them as they are to us." He says TDI will continue to ensure the welfare of the dolphins in conformance with the Animal Welfare Act.
      Veterinarian Elizabeth Lyons, an inspector for the Animal and Plant Health Inspection Service (AHPHIS) at the U.S. Department of Agriculture, the federal agency which overseas animal rights, confirms that TDI closely follows the provisions of the Animal Welfare Act. She notes that TDI’s training of marine mammals is now done largely by positive reinforcement.
      TDI has, however, been cited for other noncompliance issues by APHIS. According to inspection records for the last 10 years, the citations are for seemingly manini things: chipping occurring on TDI’s Kewalo tanks; water depths 2 feet below the minimum 6-foot requirement; inadequate temperature monitoring system for frozen fish used as feed; insufficient arrangements for emergency care and the lack of a qualified veterinarian on staff to care for two pregnant dolphins. In the last instance, the calves both died, though this is not considered unusual with first-time mothers.
      In her most recent report of July 18, 2001, Lyons noted the Kewalo facility was still in violation of the "construction requirements" section under the animal welfare regulations. She voiced concerns that paint and rust, now noticeably chipping and peeling in the dolphin enclosure, could potentially be injurious to the animals’ health.
      Could the paint and rust flakes be the source of Elele’s death last December or impact the health of Akeakamai and her fetus?
      "The peritonitis was due to an infection by the Clostridium bacterium, but it is unclear what impact the paint chips might have had on her susceptibility to infection," says Lyons. She says TDI has been subsequently placed on a systematic program to make corrections by this Dec. 19.

Liberation or execution?
According to court transcripts, it was TDI’s treatment of the dolphins that motivated former employees LeVasseur and Sipman, both dismissed by TDI, to liberate the dolphins called Puka and Kea. LeVasseur and Sipman both say the tanks were only filled up to 4 feet, the dolphins were being fed bad fish, and that each lived in isolation.
      "We were always taught they are research animals," says Sipman, "so don’t get attached. But the dolphins were never like pets. They played games that entailed creativity, like trying to mimic your sounds or body language. They seemed to respond rhythmically to Santana."
      So in May of 1977, after they did their own version of a three-month release program, which included feeding them live fish at night to get them used to echolocating and to "fatten them up," LeVasseur and Sipman took the dolphins from the laboratory with the aid of accomplices and freed them off the coast of Wai‘anae. The next day, a group lead by Herman found Kea and attempted to recapture her, but she escaped.
      The newspapers reported sightings of both dolphins for months thereafter. Many of the sightings were assumed to be positive identifications, since the dolphins look different from those native to Hawaiian waters, and Kea had an identifiable torn fin. A scuba tour operator, who once swam with Puka back at the tank, testified at LeVasseur’s trial that the dolphin swam up to her at Hanauma bay, stared her squarely in the face, and then disappeared when she reached out to touch her.
      Herman says he believes the "poor dolphins" died shortly after their release. "Returning to the wild dolphins long cared for by humans carries a high probability of sending them to their death," he says.
      John Walsh, a director at the World Society for the Protection of Animals, an animal-rights group, disagrees. He says he’s aware of numerous successful releases, including one the WSPA effected in Brazilian waters. They were able to monitor the dolphin for 18 months by a freeze brand on its dorsal fin. "There are alternatives to these animals swimming around in endless circles," he says.
      Though the science of reintroducing long-institutionalized dolphins into the wild is still new, there seems to be agreement among its proponents; the program should be gradual and meticulously planned and won’t work in every case.
      Do dolphins in the wild have longer life spans than those in captivity? Naomi Rose, Marine Mammal Scientist at the Humane Society of the United States, says the government doesn’t analyze figures at a consistent rate and can’t answer the question, but she notes that captive Tursiops bottlenoses, for one, appear to have almost the same longevity as do those which are free, living up to 45 years. Captive orcas, on the other hand, also in the dolphin family, often don’t make it much past their early 20s, she says. It is during the first month of capture, however, that marine mammals overall have mortality rates of up to six times higher. Stress-related illnesses like ulcers are commonplace, which is why standard cetacean menus include antacids. Where does the stress come from that makes dolphins need Tums?
      "Human intervention and stress," answers Richard O’Barry, controversial author of Behind the Dolphin Smile (2000), a book describing how the billion-dollar-a-year animal-captivity industry is based on the deception of creatures who always look happy. Stress, he says, is the result of having to live in an empty, artificial world "without anything that normally makes life worth living."
      There is a "quality of life" issue that needs to be addressed regarding animals maintained in captivity for long periods of time, marine mammal scientist Paul Forestell wrote as far back as 1994 in a posting to MARMAM, an Internet news group devoted to marine mammals. Citing statistics that over 50 percent of SeaWorld orcas have died since 1987, Forestell says the animals are ill-suited to withstand the stresses of living in "what amounts to a bucket of water, when compared with the area a free-ranging orca would cover in its lifetime."

Rights of the dolphin
The question of the right to quality of life is an old one. In his book Night of the Dolphins (1982) about the 1977 release of Puka and Kea, former UH professor Gavan Daws wonders why a trained ape, who scores higher on an IQ test than a massively retarded human, should be denied the same set of rights.
      The lack of rights is "the whole point," LeVasseur says, referring to the liberation of Puka and Kea. "The law had to be tested and changed so dolphins would no longer be treated merely as human property."
      LaVasseur and Sipman failed in that regard, were convicted of a Class-C felony and did community service. And Herman not only replaced the dolphins, but doubled their number once TDI made the 13 corrections recommended by the National Marine Fisheries Service.
      What’s next for Maui, TDI and the Kewalo Three? Besides a sea pen, or "returning the [Weinberg/Maui Nui] land to the native Hawaiians," as one protest letter to the planning commission suggested, other options proposed include using a virtual-reality demonstration to replace the live-dolphin exhibit and enrolling the dolphins in a release program that will prepare them for their eventual freedom in the sea.
      And what about HSED16, the bill at the Maui County Council that would make the exhibition and display of marine mammals illegal on the island? Herman says the bill will not pass as written because it is preempted by the federal Marine Mammal Protection Act of 1972, which allows for scientific research and public display of cetaceans. According to Councilmember Johnson, the bill is being redrafted to preclude challenges to the ordinance, based on the federal law. Johnson remains optimistic.
      Maui’s theme-park destiny may be sealed.