Court Hearing (23 January 2018)

Why another Court Hearing for Morgan?

Accountability and Responsibility – these are the two core principles driving the Free Morgan Foundation’s (FMF) legal challenge to the legitimacy of Morgan’s European Union (EU) CITES transfer and exemption certificate (here after referred to as ‘the permit’).

The permit was authorized for the limited purpose of “research” and was supposed to ensure that Morgan would not be commercially exploited, including for breeding.  The FMF asked the Government of the Netherlands, in August 2016, to act on Morgan’s behalf – to use its vested authority to ensure that Morgan’s legal rights were protected.  But it refused and now Morgan is pregnant; leaving the FMF with no choice but to take the Netherlands Government to Court.

Overview of Court Hearing,  23 January 2018

A panel of three Judges, at the Utrecht Court, The Netherlands, heard the case submitted by the FMF and defended by the CITES Management Authority (MA) section of the Netherlands Government (which issued the permit). There were two ‘interested parties’ in attendance; the Dolfinarium Harderwijk (who captured Morgan) and Loro Parque (the facility now claiming her ownership and who are responsible for getting her pregnant).

An outline of some of the key aspects and a few of the points raised during Morgan’s hearing follow.  The panel of three Judges stated that they would only rule on the jurisdictional issue of the permit (i.e., on the sphere of activity and the official legal power) and therefore on the authority of the Netherlands Government to nullify Morgan’s permit.

Before the hearing, the FMF submitted affidavits (a written statement made after promising officially to tell the truth) from leading experts in their fields including Jeff Foster, Dr. Naomi Rose, Dr. Lori Marino and Professor Arie Trouwborst.  The judges stated that they would not deal with any aspect of Morgan’s welfare at this time; but added that if they rule that the permit is still valid, they may then consider looking at the welfare issues at a subsequent hearing.

The Netherlands CITES MA presented a very poor set of arguments – giving examples of where they had nullified CITES certificates in the past, but then stating that they couldn’t do the same for Morgan’s certificate.  The Judges questioned them on their reasoning and did not appear convinced by the Dutch MAs aloof responses.

The Counsel for the Dolfinarium Harderwijk (DH) told the Judges that Morgan’s permit expired the moment Morgan left the Netherlands.  The Judges seemed skeptical of that line of reasoning.  They prodded the Counsel for DH to explain why there would be such an elaborate regulatory scheme for issuing an exemption certificate, only to have it lose its legal effect as soon as Morgan arrived at Loro Parque in Spain, where the stated purpose of Morgan’s certificate – “research” – was to be achieved.  None of the three Judges appeared to be swayed by the sporadic reasoning of DH’s Counsel.

The Counsel for Loro Parque (LP) claimed that Morgan’ was subjected to breeding and is now pregnant under ‘research’ purposes and, therefore, there was no violation of Morgan’s exemption certificate/permit.  That pronouncement triggered spontaneous gasps and exclamations of disgust from the supporters in the courtroom and even the body language of the three Judges indicated disbelief in the assertion.  That in turn prompted the Judges to question why the EU CITES Law (338/97), under which Morgan’s permit was issued, would have separate exemption clauses for ‘research’ and for ‘breeding’ if they were interchangeable, as LP implied.  LP’s Counsel struggled to articulate a coherent and reasonable argument for its position and appeared to leave the three Judges unconvinced.

The applicable EU CITES Law plainly states how an exemption certificate/permit must be applied for, how it can be issued, and the limited scope of activities legally permitted if authorized.   The FMF is confident that the three Judges will look to both the spirit and letter of the underlying law (not an incomplete and poorly worded boilerplate certificate form, such as the one used to create Morgan’s permit) to ensure that Morgan is afforded the full complement of legal protections due her.

The Judges said that they will try to give a ruling in around six weeks – but they noted that they may apply an extension to that time-frame.  If they adhere to the ‘6 weeks’ that would put the verdict out around the 6th of March 2018.