HOW APHIS MADE THEIR OWN RULES FOR MIAMI SEAQUARIUM

THE SHELL GAME PART ONE -

HOW APHIS MADE THEIR OWN RULES FOR MIAMI SEAQUARIUM

In collaboration: Michele Bollo, Russ Rector and Paul Slabaugh

Link for this article:  http://tinyurl.com/p7jz4bq
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If you want to put the words DELIBERATE COVER-UP underlined and in bold, let's walk through the ever-changing rationale and fuzzy math APHIS has applied to the Miami Seaquarium for decades.  The bottom line is that APHIS cannot create their own regulations legally, and yet they have done that very thing.  It's not just incompetence, it's a lie.  It's a lie perpetrated by several high-level officials from APHIS.  APHIS has lied for this one marine park regarding size to keep Lolita in a space smaller then the Animal Welfare Act demands.  Congress must look at these facts because it is independent action and judgment not condoned to be legal.  They made up their own set of rules and have reinforced incorrect data for decades. 

AWA regulation 3.104b demands that “Primary enclosures housing cetaceans shall contain a pool of water and may consist entirely of a pool of water. In determining the minimum space required in a pool holding cetaceans, FOUR factors must be satisfied. These are Minimum Horizontal Dimension (MHD), depth, volume, and surface area.'  Per AWA,  a tank must have a MHD of 48 feet, if it is to contain even one orca.  

No measurement of the four, no matter how excessive, can compensate for another.  That does not meet minimum requirement, nor does that language exist in the AWA.

Minimum Horizontal Dimension is defined as the diameter of a circular pool of water, or in the case of a square, rectangle, oblong, or other shape pool, the diameter of the largest circle that can be inserted within the confines of such a pool of water.

This definition indicates that the inserted circle is filled with water and the captive animal can freely swim in this circular area. If one inserts a circle of 48 feet or 60 feet diameter into the MSQ pool, it will contain the Work Island. There is no reasonable interpretation of the definition that would allow this.

So, just how has APHIS managed to provide licensure every single year for a tank clearly too small, per Animal Welfare Act guidelines for a single orca, much less the combinations of dolphins over the years? Currently, Lolita is housed with four striped dolphins.  She has not had the companionship of another orca since 1980.

Documents in this blog were extracted from a 600-page FOIA request by Russ Rector, and his efforts that pre-date 1993 after his relentless effort to close Ocean World.  While other regulations of the AWA have been overlooked by APHiS,  Part One focuses on but one factor;   the Minimal Horizontal Dimension. 

Historically, the principles of the cover-up beginning in 1988 are:

R. L. Crawford, Senior Staff Veterinarian-APHIS

Kristina Cox, Section Veterinary in Charge, APHIS

Dale Schwindamann, Senior Staff Veterinarian, APHIS

George Boucher, Owner at the time of Miami Seaquarium (MSQ)

Michael Dunn, Assistant Secretary, Department of Agriculture




6/22/1988 Document #1  An internal document informing Cox signed by Crawford states a variance was granted to MSQ in 1979, which would have expired in 1984.  That variance, not on file with APHIS would have required Miami Seaquarium to come into compliance for tank size, and they were not alone.   Other parks were issued variances, and in every case, those parks came into compliance, even complaining about why Miami Seaquarium avoided the size increase.    However, Scwindamann then goes on to state  "There is no record of any correspondence indicating the whale pool was in compliance, and there is no record of any variance request under the revised standards in 1994." 

This would suggest that APHIS did not know if the pool was compliant or not.  Yet, Crawford goes on to contradict himself by saying the pool complies with standards anyway, so no variance would have been necessary. That would have required them to know the pool was in compliance,  "...the work island in the pool has a solid base or pedestal and interferes somewhat with an unobstructed MHD measurement in one direction, the pool significantly exceeds minimum requirements in the other direction and in volume and surface area. It is our opinion that the whale pool complies with minimum requirements...."  As stated earlier, no measurement can compensate for another, that all four measurements must be met independently.   

Russ Rector observes that according to this definition in its absurdity, one might have a pool with a ten-foot MHD that was a mile long and technically be within compliance.

5/23/1988  Document #2  Schematic of MSQ tank space, in which APHIS Official and Engineer Michael Phang notes the dimension from the pool edge to the work station as 48".  He could not have physically measured the pool, or he would have found a 13-foot discrepancy, as the dimension is 35 feet.   This implies he may have been given the diagram by MSQ. He also indicatse that the MHD is 60 feet (disregarding the beaching platform as an obstruction), yet no indication of how that 60 foot MHD was arrived at in the diagram.     Notation on right side says “Letter should be on file at section if questions about this Reg MHD: 48 feet.”  Phang also includes a 73 foot horizontal dimension that runs through the work station, which would be an incorrect result for MHD, as a circle cannot fit within the tank area to arrive at that calculation.  At this time the pool contained 1 orca, 1 Risso’s and five white-sided dolphins. Phang, E.I. signs off on the inspection.  


11/8/1995  Document #3  Affidavit from November 8, 1995 by Russ Rector stating the tank is too small, the MHD is 35', 13' short of AWA regulation.  He also references letters written by APHIS officials "are incorrect and based on false and erroneous measurements....The question is what is the distance from the front edge of the pool to the front edge of the beaching platform?".

12/7/95 Document #4a, 4b, 4c  APHIS Officials Kristina Cox and S. Santiago finally use a "commercial reel model 100 foot Keeson brand measuring tape" in what may be the first time APHIS actually measures The MSQ tank.  She starts off by saying "the measurements in 1988 are basically the same as those taken in 1995".  However, on page three, she states "assuming the 1988 waiver is still applicable" the MHD is in fact 60 feet. There is no waiver process included in the regulations of the AWA, nor are there any waivers on file for the Miami Seaquarium.   

Cox references the waiver once more when she contradicts herself.   "The pool has a 35 foot MHD without a waiver and a 60 foot MHD with a valid waiver....".  In addition, she observes "if the work station were to be judged an obstruction to MHD, the MHD would be 35 feet" and “Assuming the work station is excluded as a MHD obstruction, the whale stadium pool appears to meet and/or exceed minimum standards for the present occupants.”


12/7/95  Document #5   Officials Cox and Santiago submit a schematic for MHD, using the correct method, the diameter of a circle placed from the edge of pool to work station as 35 feet with the correct placement from the edge of the pool to the work station.  This is the only way a circle can be placed in that pool without encroaching on an obstacle.  No geometry or math can make that different.      Recall that AWA does not provide for any obstructions to MHD.  This diagram correctly depicts the only rational definition of MHD.   However, the notation written by Cox is “MHD =35 ft if work station is not wavered.”

12/7/95  Document #6  Same inspection above, the schematic shows the correct way to measure MHD, meaning the measurement that bisects the diameter of a circle, calculating the 60 feet Phang referred to, but disregards the obstructed work station.  Notes on side show “(i.e. work station waivered as an MHD obstruction)”.  At this point in time, three MHD dimensions have been put forth by APHIS:
35 feet if not wavered OR 48 feet, which is not a correct measurement from the pool side to the work station,  OR 60 feet, which is obstructed by the work station, and therefore invalid.

12/13/95 Document #7 Schwindamann responds to Rector's complaint by stating there is no discrepancy between the measurements made in 1988 and the measurements found in 1995.  This is not a true statement   1995 was the first time diagrams show MHD as 35 feet from tank edge to beaching platform.  He refers again to the fact that all other requirements exceed regulation, inferring compensation.  He sidesteps the issue by saying "The entire pool is used in calculating available space", which is true if all four measurements meet minimum standards independtly, but leaves the MHD question unanswered.  And once again, "......the waiver for this pool does provide adequate space....".  Now, a new and curious compensation is offered, as an offset for a pool that fails to meet standards:  “This position is strongly supported by he continued good health status of Lolita and her companion. This pool is in compliance with the AWA standards is determined by this Agency.”

12/13/95 Document #8 Schwindamann echoes the letter written to Russ Rector in Document #9 to Boucher but adds "Although the solid base of the work station appears to interfere with an unobstructed MHD in one direction" the three other parameters exceed minimum requirements.  He refers to the validity of the "waiver granted in 1988....".  However, in that 1998 letter, he maintains that a variance that would have expired was issued, not a waiver. 

1/4/96 Document #9   Just three weeks later, Schwindamann contradicts the references to the "waiver" granted in 1988 in Document #7.  He goes on to use the word "variance" issued in 1979 as "not necessary and there was no reason for it's consideration since the pool met space requirements for the animals housed in the pool."  He makes no mention of waiver(s) otherwise.  He then appears to contradict the unnecessary variance by giving it weight, stating  "APHIS has determined, in accordance with the 1979 variance and the recent measurements, that the involved animals are in discernibly good health and the space provide Lolita and her companion conforms with regulatory requirements.’


This is a most interesting document.  First, it appears a variance was issued to MSQ, which allowed six years to come into compliance before expiration.  That variance is not on file with APHIS.   Second, there are NO waivers on file for MSQ, there are no waivers allowed within the AWA regulations for size, nor any other aberration of the AWA. Schwindamann seems to be confused regarding variance and waiver, while not explaining the waiver whatsoever, though it is mentioned repeatedly in prior communications, also by Cox and Phang.  Last, "discernibly good health" is an inapplicable marker for pool size and does not exist within regulations.

12/15/1995 Document #10  In a startling affidavit by Kristina Cox, she defends the dimensions for Minimum Horizontal Dimension as measured by her in 1988 as the same as measured in 1995.   First, the two sets of diagrams show very different information.  the 1995 inspection shows a diagram that if not waivered, the MHD would be 35', 13 feet short of minimum requirements. What is curious too, it appears Cox did not measure the pool in 1988, but are signed off on by Michael Phang.  Phang could not have measured the pool, or he would have known the distance from the pool edge to the beaching platform was not 48 feet, but 35 feet.  Cox swears that the information she provides is true and correct.  As interesting, the last sentence of the affidavit states "I have been offered an opportunity to add to or delete or change anything herein that I feel is incorrect."  

This statement defies the very purpose of a sworn statement, which APHIS officials use liberally in their inspections, and as a government agency would certainly recognize the deliberate use of an affidavit, as opposed to a statement or narrative.     Once  an affidavit is sworn and signed, it's done. With one exception, the only way to correct a mistake in the sworn affidavit or add additional information is to make a new affidavit, not manipulate the original. There appears to be no subsequent records on file by Cox to correct any of her statements in this affidavit.  As important, who afforded her the opportunity to manipulate the affidavit?   This author suggests Schwindamann. 

2/28/1996 Document #11    In a response to Russ Rector from Mike Dunn, Department of Agriculture, Dunn reaffirms that MSQ meets standards and claims "discussions regarding waivers or variances previously extended to the Miami Seaquarium are no longer relevant."   To reinforce the decades of cover-up, Mr. Dunn writes".... Dr, Schwindamann’s remarks regarding Miami Seaquarium's efforts to increase the whale pool size reflect only APHIS' desire that licensed exhibitors not only meet the minimum requirements established by the AWA, but strive to surpass them".  This is a troubling and disingenuous statement.  Dunn knows full well that if a variance was provided to the MSQ,  it would have been to increase the MHD of the pool and bring it into compliance.  Dunn would also know, no such increase in MHD was ever built.  

Of course, waivers and variances are at the heart of this boondoggle, are referred to repeatedly in both documents and diagrams.  Schwindamann refers to the increase in pool size, as he knows the pool is not in compliance and the Miami Seaquarium was given several years to meet compliance, at the same time other facilities were enlarging their pool size for the same reason.  This statement by Dunn shows an agency-wide complicit effort to cover-up repeated incompetence by APHIS.  Here he thinly disguises and provides for a meaning that was never intended, to surpass minimum requirements.

12/28/1996 Document #12  in a response to a FOIA request by Rector for all variances and waivers on file for Miami Seaquarium, they claim there are none.  However, they move to the original letter written in 1988 by Crawford as the only document that refers to a variance.  As obviously displayed by the diagrams and correspondence, this is flatly untrue.   Just in these selected documents, out of a cache of 600+ pages, the variance and waivers are referred to at least a dozen times.

3/3/1997 Document #13  The Marine Mammal Commission (MMC) is a government agency, established under Title II of the Marine Mammal Protection Act (MMPA).  Article 2 under Mission Objectives is to conduct a continuing review for the condition of marine mammals, including applications for permits for public display.

The “member of the public” is the ever-persistent Russ Rector, trying yet again to bring attention to APHIS incompetence.     John Twiss, Executive Director questions if the Miami Seaquarium meets the standards for pool size in the AWA.  He states the “Commission notes there is an island in the pool and it is unclear how the minimum horizontal measurement should be measured.”  Mr. Twiss brings full circle the question of APHIS incompetence and an ever-morphing rationalization about the compliance of the Miami Seaquarium.  

The irony of this letter shines like a laser point, in that APHIS does not appear to know themselves how to calculate MHD and have set forth a variety of measurements, a variety of methods for calculation, and furthermore, compensations simply not put forth in the language of the Animal Welfare Act.  

Many questions remain amid this maze of letters and APHIS personalities:


Was there a variance, implying the MSQ needed to add space, though no additional space was ever added?  No variance is on file. 

Were waivers issued, also not on file?  There is no  method, including by waiver  to accommodate a less then required MHD in the AWA.

Why are there so many references to waivers by upper level officials, when they were not needed? 

Do the other three dimensions required compensate for MHD? Not per AWA regulations.  

Does the apparent robust health of the animals contribute to a smaller then required tank size?  Not per AWA regulations. 

APHIS having put forth multiple theories and techniques has arrived at their own manipulated and unlawful result for this one aquarium for 36 years.  Congress cannot ignore the details of this shell game, only one such example of a litany of failures, incompetence and dishonesty as  put forth in a report by the Office of the Inspector General.  APHIS needs to explain and Congress needs to understand  the inner workings of an agency corrupt with the actions of officials that has allowed the Miami Seaquarium to keep animals in a pool that does not meet AWA standards.  
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Michele Bollo michele.mothersea@gmail.com
Russ Rector captivitykills@comcast.net
Paul Slabaugh texdig@gmail.com