William & Mary Environmental Law and Policy Review


Dana Mirsky


In Sulawesi, Indonesia—forty-five thousand years ago, an artist painted what is now the world’s oldest known cave painting—a life-size image of a wild pig. Forty thousand years later, the elite of Hierakonpolis, Egypt, housed elephants, hippos, and baboons in the world’s oldest known zoo. Today, individuals keep exotic fish, reptiles, and birds as pets while zoos and aquariums display some of the largest and rarest animals on the planet. The human fascination with wild animals is clearly not a new phenomenon, but how and why we keep wild animals have evolved over time. Zoos in particular have changed dramatically just over the past few decades. Once filled with bare, concrete cages and focusing exclusively on human entertainment, the American zoological industry now prides itself on prioritizing animal welfare. Many zoos now house animals in naturalistic habitats and work hard to educate the public about conservation and wildlife issues in addition to contributing directly to global efforts to preserve endangered species and their environments.

Although zoos and aquariums remain popular destinations, public backlash in response to the perceived welfare issues associated with keeping larger and more intelligent species in human care has escalated in recent years. In addition to boycotts, social media campaigns, and sensationalized documentaries, zoo and aquarium facilities also face a variety of legal challenges. This includes both legislation and litigation; animal rights groups regularly bring zoos and aquariums to court, often seeking to, inter alia, expand the legal scope of animal rights or prove animal mistreatment in a particular facility.

Several federal statutes confer a variety of protections on animals both in and out of zoos. However, the structure and nature of these statutory schemes make lawsuits concerning alleged animal mistreatment challenging for courts as well as attorneys. In addition, animal facilities— such as zoos, aquariums, and sanctuaries—do not regulate or even define themselves or each other consistently. Misleading or inaccurate—but popular—ideas about the best so-called solutions for animals in zoos only add to the confusion. This Note uses both court cases and the example of the real-life “Free Willy” to explore this unique intersection of the legal system and the zoological industry, looking in particular at what courts and zoos can do if a facility does not adequately care for its animals.

Plaintiffs in these animal mistreatment cases generally ask the court to order the transfer of the animals in question—often specifically to a sanctuary rather than a zoo; typically, plaintiffs also alternatively request that the court at least order the defendant facility to somehow remedy its treatment of the animals. On a few occasions, courts have granted such relief, requiring a facility to either surrender the animals or make specific animal husbandry changes. One particular request— for the transfer of one or more killer whales, or orcas to a “sea pen”—has not yet been granted. A sea pen is an offshore area—often a bay or partially enclosed area on a coastline—separated from the rest of the ocean by nets stretching from the sea floor to the ocean’s surface. Sea pens are often suggested as a potential “happy ending” for orcas in human care.

This Note examines the advantages and disadvantages of these three options—transferring animals to a different facility (the “transfer option”), ordering a defendant facility to change its treatment of the animals (the “treatment option”), or moving orcas or dolphins to a sea pen (the “sea pen option”). Part I provides background on the oversight, regulation, and definition of animal facilities. Part II explores the transfer and treatment options, while Part III evaluates the sea pen option. The conclusion considers wider lessons to be learned from these case studies.