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Tilikum, Katina, Corky, Kasatka, and Ulises, Five Orcas v. Sea World Parks & Entertainment

February 8, 2012


The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge


Defendants Sea World Parks & Entertainment, Inc. and Sea World, LLC, (collectively "Sea World") move to dismiss the complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs, five orca whales, Tilikum, Katina, Corky, Kasatka and Ulises, acting by their Next Friends, People for the Ethical Treatment of Animals, Inc., Richard "Ric" O'Barry, In-grid N. Visser, Ph.D., Howard Garrrett, Samantha Berg, and Carol Ray (collectively "Next Friends"), oppose the motion. For the reasons set forth below, the court dismisses the action with prejudice and instructs the Clerk of Court to close the file.


On October 25, 2011, Next Friends commenced this action by filing a complaint for declaratory and injunctive relief, seeking a declaration that the named wild-captured orcas are being "held by the Defendants in violation of Section One of the Thirteenth Amendment to the Constitution of the United States, which prohibits slavery and involuntary servitude." (Compl. ¶1).

Plaintiffs are members of the Orcinus orca or "killer whale" species, the largest species of the dolphin family. (Compl. ¶10). Plaintiffs are allegedly being "held captive" by Sea World at their entertainment facilities in Orlando, Florida, and San Diego, California. (Compl.¶ ¶1, 5). Next Friends generally allege that the orcas, captured by Sea World off the coasts of British Columbia and Iceland, engage in many complex social, communicative, and cognitive behaviors. (Compl. ¶10-18). Next Friends allege that the confinement of the orcas in barren concrete tanks negatively impacts them in many ways, including the suppression of "Plaintiffs' cultural traditions and deprives them of the ability to make conscious choices and of the environmental enrichment required to stimulate Plaintiffs mentally and physically for their well-being." (Compl. ¶19). Next Friends identify that the orcas live substantially shortened lives in captivity (8.5 years in captivity versus up to 65 years in the wild), experience distress because of the concrete, acoustically reflective tank walls, and allegedly "display physiological and behavioral abnormalities indicative of psychological distress and emotional disturbance." (Compl. ¶¶19-27).

In broad brush, Next Friends allege that Plaintiff orcas "were born free and lived in their natural environment until they were captured and torn from their families." (Compl. ¶31). While in captivity, the orcas often suffer severe distress. (Compl. ¶¶32-66). The unnatural conditions under which the orcas are held in captivity - "[d]eprived of liberty, forced to live in grotesquely unnatural conditions and perform tricks," (Compl. ¶55) - has resulted in "extreme physiological and mental stress and suffering while, at the same time, Defendants and their predecessors have reaped millions of dollars in profits from their slavery and involuntary servitude." (Compl. ¶¶ 46, 55,62, 66).

Based upon the above generally described conduct, Next Friends contend that the retention of the orcas in captivity violates the slavery and involuntary servitude provisions of the Thirteenth Amendment (the first and second causes of action, respectively). Next Friends contend that the orcas are being held as slaves because they are (1) held physically and psychologically captive; (2) without the means of escape; (3) separated from their homes and families; (4) unable to engage in natural behaviors and determine their own course of action or way of life; (5) subjugated to the will and desires of Sea World; (6) confined in unnatural, stressful and inadequate conditions; and (7) subject to artificial insemination or sperm collection for the purposes of involuntary breeding. (Compl. ¶106).

On January 24, 2012, the court granted the application of Center for the Expansion of Fundamental Rights, Inc. ("CEFR") to appear as amicus curiae. (Ct. Dkt. 21). While the court permitted CEFR to file a memorandum, the court denied its request to present oral argument.


Legal Standards

Whether the court treats Sea World's motion as one arising under either Rule 12(b)(1) (dismissal for lack of subject matter jurisdiction) or Rule 12(b)(6) (dismissal for failure to state a claim), the "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 12(b)(1) of the Federal Rules of Civil Procedure provides that a complaint may be dismissed for "lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). In considering a motion to dismiss for lack of subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims." Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983).

Sea World argues that Plaintiffs lack Article III standing to bring this action and, alternatively, Next Friends lack capacity to bring this action Pursuant to Rule 17 of the Federal Rules of Civil Procedure. To satisfy Article III, a plaintiff "must show that (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision."

Cetacean Community v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Sys. (TOC), Inc., 528 U.S. 167, 180--81 (2000)). An action brought by a plaintiff who lacks standing is not a "case or controversy" under Article III, resulting in the court's lack of subject matter jurisdiction to entertain the action. Id. (quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101 (1998)).*fn1 In the absence of an applicable statute authorizing Plaintiffs to bring a private right of action, whether Plaintiffs suffer a cognizable constitutional injury turns on whether the Thirteenth Amendment affords any legal protection to Plaintiffs.*fn2 Applicability of the Thirteenth Amendment to Plaintiffs

At the outset, the court notes that Next Friends recognize that the issues raised are of first impression and that there are no authorities applying the Thirteenth Amendment to non-persons. Next Friends "are asking the Court to find that the specific acts of domination, exploitation, and coercion to which they [the orcas] are subjected are repugnant to the Thirteenth Amendment." (Oppo. at p.2:11-13). For the reasons set forth below, the court concludes that the Thirteenth Amendment only applies to "humans" and therefore affords no redress for Plaintiffs' grievances. As Plaintiffs lack standing to bring a Thirteenth Amendment claim, the court dismisses the action for lack of subject matter jurisdiction. See Citizens for a Better Environment, 523 U.S. at 94 ("Without jurisdiction the court ...

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