Column: Dayna Bochco, the orca protector

SeaWorld’s attendance has been nose-diving like an orca since a 2013 documentary, “Blackfish,” generated waves of criticism about the park’s treatment of killer whales. Now SeaWorld says it will remake its orca show by 2017 — fewer theatrics, more nature. No matter, Rep. Adam Schiff (D-Burbank) is still planning to introduce a bill that would put an end to orcas living in captivity in the U.S. It may have been the California Coastal Commission that precipitated these moves. The commission voted in October to let SeaWorld build a new, improved orca tank for its shows in San Diego, on the condition that it end breeding killer whales in California and importing them. Dayna Bochco, an attorney, Heal the Bay board member, TV producer and Coastal Commission member, says she never saw “Blackfish.” But it was her amendment that ultimately could phase out captive orcas in San Diego.

What made you conclude that the commission had the authority to order an end to captive breeding at SeaWorld?

The answer came from an enormous amount of research on my part after reading the staff report explaining how the federal laws [do] not preempt us in this. In 1994, SeaWorld was one of the main lobbyists [to get] the captivity of marine mammals exempted from the Marine Mammal Protection Act.

SeaWorld kept saying during the hearing, “You guys can’t do this because it’s [regulated] under the MMPA,” and it clearly isn’t so.

There’s an argument, including in an L.A. Times editorial, that the Coastal Commission only has jurisdiction over the orca’s living space.

That’s not true. We absolutely have jurisdiction.

There was a case in 2002 where Sea World was building a kind of roller coaster right next to the dolphin tank, and the commission put conditions in the approval that the noise would in no way be disturbing to the dolphins. That’s what we do.

Land use is one part of our job, but we also have a great responsibility to these sensitive species. So when someone wants to develop something, and we see that it’s going to interfere with sensitive habitat, we say no. That’s what’s going on here.

This wasn’t about exerting power; this was about what the law allows us to do and what’s the right thing to do.

The 11 whales in San Diego are the only ones we took jurisdiction over. We decided they should no longer be allowed to breed these whales, so the 11 in San Diego would be the last 11 at this SeaWorld facility.

We did this because there is no way to prevent the taking of a wild whale somewhere else and putting it in captivity, [or] taking sperm to artificially inseminate captive whales with wild whales.

[The United States has not issued a permit for taking a wild orca since 1989, but other countries do. SeaWorld does not capture wild whales.]

SeaWorld to their credit said, “We don’t do that; we won’t use any wild genetic material, we’ll only use [genetic material] from captive whales.” We felt that this still did not cut the chain from the wild to captivity.

Did you know much about captive killer whales before this case?

I didn’t have an opinion going in; I haven’t been to SeaWorld in probably 30 years. But I grew up in San Diego, so I’m certainly aware of it. After reading the staff report that a larger pool is far better, that seemed fair to me. Then, as part of our job, we take in information from both sides. We got a lot from SeaWorld, how they take care of these animals. [We] talked to people opposed to this project, environmental groups but in particular a number of marine scientists. The scientists said of any species to be kept in captivity, this is probably the worst.

The SeaWorld proponents say these whales are fine. “We take wonderful care of them; it’s just different [from whales being in the wild].”

But scientists put monitors on to track the animal [in the ocean]; they swim hundreds of miles a day and dive 800-some feet. There’s no question in my mind that this is a marine mammal of very special significance, deserving of protection. I don’t know about SeaWorld corporate, but the people I met certainly love their animals, but I think they’re either being misled by the corporation that these animals are thriving in this atmosphere or they don’t want to see it.

Won’t the ban put SeaWorld’s business at risk?

SeaWorld was clear about the longevity of these animals. They could enlarge this pool and have 30 or 40 years of display of these animals. That gives them time to adjust, using other mammals, porpoises and dolphins, and making it more of an amusement park. It’s not like they’d have to change their business model overnight.

It’s going to cost SeaWorld $100 million to make [its new pool] 15 feet deeper and a couple of hundred feet longer, and that may sound like a lot to a human, but to a whale it’s nothing. You could build a sea pen — basically fence in a great big portion of the ocean to keep certain fish or marine mammals in — for significantly less and the whales would have a much more natural environment, much larger. It sounds more humane to me. I’m sure people would come to a sea pen to see whales in their natural environment as much if not more than in a swimming pool in San Diego.

Another recent Coastal Commission decision allows homeowners on Malibu’s Broad Beach to pay $31 million of their own money to “nourish” the beach there, essentially adding sand to undo erosion.

This is the first time private landowners are willing to do it at their own expense. Broad Beach is a big experiment. If it does work, it may be something to think about in terms of sea level rise, but everyone realizes the sea level rise is coming and you can’t nourish it away. At some point other accommodations have to happen; these houses will have to move or be put up on stilts. As a house needs to be remodeled or torn down and built anew, that’s when you do those things. We can’t ask homeowners to tear down their houses and build them on sticks. That would not be fair.

Public beach access problems still exist. Some homeowners try to bar access with fake, official-looking “No Parking” signs and private security.

Recently the Legislature allowed the Coastal Commission to charge fines [without having to take offenders to court]. We couldn’t do that before. Now our enforcement staff tells people, “If you don’t take down that sign, you may be fined.” It’s been very successful. There are always going to be people who want the ocean to themselves and feel “I don’t want anybody walking on ‘my’ beach,” but I wouldn’t say it’s the majority.

Part of it is educating the public to know what their rights are; it’s not always easy to know where the mean high tide line is [from that line to the ocean is public beach]. For private owners, it’s a trade-off: If you want the benefits of a beach house, you will trade that off by giving public access through portions of land you own.

The Coastal Commission’s spokeswoman, Noaki Schwartz, was recently ordered off public sand by a Los Angeles County sheriff’s deputy even after she showed him the law was on her side. Most people confronted by a sheriff’s deputy would just go.

Oh yes, I’d leave: yes sir, yes sir!

This interview has been condensed and edited.

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