A federal judge’s decision supporting the National Oceanic and Atmospheric Administration’s refusal to allow the Georgia Aquarium to import 18 beluga whales from Russia could be a death sentence for those marine mammals — if the aquarium doesn’t successfully appeal the ruling.

Georgia Aquarium CEO Mike Leven

Georgia Aquarium CEO Mike Leven

After nearly a decade under human control in some cases, the belugas are incapable of living in the wild. But their care and feeding cost the aquarium $700,000 to $800,000 a year, a figure that approaches $1 million after additional expenses such as personnel traveling to Russia with translators and security every three or four months to check on the whales, aquarium CEO Mike Leven said in an interview.

After spending almost $11 million on the project, the nonprofit aquarium can’t afford to care for the whales overseas forever, Leven said.

“I don’t know what’s going to happen to them if we go away,” he said, noting that only a couple of aquariums outside North America work with belugas, and they couldn’t take more than three or four whales.

Leven doesn’t expect the Russians to keep caring for the belugas indefinitely. “It’s a stalemate. If we give it up, we just don’t know what’s going to happen to these animals.”

That stalemate continues after U.S. District Judge Amy Totenberg issued a 100-page ruling Monday, Sept. 28, that NOAA acted properly when it refused Aug. 5, 2013, to issue the aquarium an import permit. The aquarium sued the government in September 2013, about four years into its effort to add diversity to the U.S. beluga gene pool.

(Note: AJT Publisher Michael A. Morris is on the aquarium board.)

The aquarium owns two belugas, which are in Florida, while three whales on loan are in Atlanta. The plan to bring belugas from Russia grew out of a desire to have a large and diverse enough beluga population at U.S. aquariums for the whales to be self-sustaining without any further capture of animals in the wild.

The aquarium wanted to bring in 12 whales from Russia’s Sea of Okhotsk, but NOAA suggested 23, Leven said. The two sides settled on 18, to be shared with other U.S. facilities, and the aquarium contracted with the Russians for that number and paid most of the purchase price while also paying for the belugas’ upkeep.

After working with the aquarium for several years to bring in the belugas, NOAA abandoned ship and poked holes in the application just weeks before the transaction was to be executed.

NOAA Fisheries got a new administrator, who quickly denied the permit under the Marine Mammal Protection Act. That law defines the legal path for aquariums to obtain belugas.

NOAA decided that the loss of the belugas from their home waters might hurt the wild population and, in a related factor, that if the Georgia Aquarium imported 18 whales, Russians would catch more to sell in the future. Those concerns had been discussed and reviewed at length earlier in the process.

NOAA was asking the aquarium to prove that importing the belugas wouldn’t hurt the Russian whale population, and Leven said the aquarium did so, providing ample scientific evidence that the wild population would not be depleted. He added that the point of importing 18 belugas was to provide enough biodiversity so that no U.S. aquarium would need to buy more Russian whales, so the transaction would not have encouraged captures.

Leven said NOAA applied subjective standards, possibly because someone or some group wants to stop putting mammals on display. NOAA Fisheries denies that the decision on the belugas represents anything more than judgment on this specific case and says a different application could get a positive decision.

The decision on the belugas and a sluggish government response to more than 3,300 sea lion pups becoming stranded in California this year, more than seven times the average annual number, represent a slippery slope of irrational regulatory overreach, Leven added.

According to aquarium lawyers, Leven said, the subjectivity and irrationality come through in inconsistencies in Totenberg’s decision. The aquarium likely will appeal, he said — not in the hope of seeing a more favorable administration in 2017, but because the decision was unfair and the lives of the belugas are at stake.

Still, Leven said he’s not optimistic either about the long-term outlook for facilities such as the Georgia Aquarium that are devoted to education and conservation or about the fate of the belugas.

“I wish I could get more optimistic,” he said. “If it’s a rational decision, I think we win, but we can’t be certain.”