Rescued killer whale bound for amusement park following legal tussle

A 1,200kg rescued killer whale called Morgan the orca is expected to arrive at a Tenerife amusement park on Tuesday afternoon after being flown from the Netherlands.

Morgan's arrival follows a lengthy court case that concluded on Monday with a Dutch judge ruling against its release into the wild.

As well as dashing animal rights activists' hopes to have it released into its native waters off the coast of Norway, wildlife experts said the move could contravene European laws on endangered species.

The orca was rescued in June 2010 by a dolphinarium in Harderwijk, Netherlands, after being found exhausted and starving in shallow waters in the Waddenzee. She was estimated to be about two years old. She will now join five other orcas in a big tank on show at Loro Parque, a "natural paradise" with bars, restaurants and shops, which is owned by a German businessman.

But EU wildlife trade rules prohibit the use of orcas for commercial purposes, said the European Commission and Dietrich Jelden, the head of Germany's Cites management authority at the Federal Agency for Nature Conservation. The only exemptions are for primarily scientific, captive breeding for conservation purposes or education reasons.

A spokesman at the Dutch Ministry of Economic Affairs, Agriculture and Innovation, which gave permission for the move, said: "We rely on the Spanish authorities that Loro Parque is not only commercial, but also has some aspects of scientific research and education."

A spokesman for environment commissioner Janez Potočnik said: "In this instance, the Dutch court appears to have authorised the transfer to the Loro Parque. We assume the Dutch court did so on the basis of EU legislation and concluded that the transfer would be in line with those requirements."

He went on: "It appears that the Dutch had no real alternative to ensure the survival of the killer whale then to send it to a facility such as the Loro Parque, which is equipped to host large animals. The commission was informed that release to the wild was not possible, as the chances of survival would be limited, and that neither was it possible to keep the animal in the Netherlands as no appropriate facilities were available."

However, Ingrid Visser, a marine biologist who is preparing the proposal for Morgan's release into the Norwegian Sea, said there is as much as an 80% chance of survival in the wild, with the proper care.

Lara Pozzato, chair of the Free Morgan Support Group, which filed the lawsuit to block the move, said: "Spanish authorities acknowledged Loro Parque as a zoo, and zoos are seen to have an intrinsic value for education. But there is no education, no scientific research in Loro Parque."

Jelden said: "It is agreed among the European Cites experts that every zoo must be considered a commercial facility, in which research or education in most circumstances has either no or only secondary priority.

"It is up to member states to decide about the transport rulings, however the European Commission has to watch that European wildlife conservation legislation is followed, and ultimately could take legal action."

If the move were to be ruled illegal by the commission, Morgan would have to be returned and released into the wild.

In a written ruling on Monday, Judge M de Rooij, argued the chances of Morgan surviving in the wild were "too unsure". Scientists arguing on behalf of the dolphinarium during the court case earlier this year said that releasing her would be tantamount to a "death sentence" unless she could be returned to her native pod. Orcas are highly sociable animals. The judge said: "Morgan can be transferred to Loro Parque for research and education, and to benefit the protection of the species."

The ruling "is what's best for Morgan", said dolphinarium spokesman Bert van Plateringen. He added that the cost of the rescue, upkeep and transfer of Morgan would be more than €1m, and that the dolphinarium would not profit from keeping her.

Fewer than 50 orcas are held in captivity worldwide and the bulk of them are owned by SeaWorld, a subsidiary of US private equity giant BlackRock.

The Free Morgan Support Group will continue its fight to release Morgan, and its campaign webpage currently gets more than 50,000 views a day.

Attempts to reintroduce the highly endangered species into the wild have a mixed record. The most famous case is that of Keiko, the killer whale who starred in the 1993 film Free Willy. Keiko was caught aged two near Iceland and spent many years in Mexico City. After 20 years in various marine parks, he was flown back to Iceland and released under lengthy supervision. He died in 2003 at age 26.

Female orcas may live on average about 50 years, giving birth five or more times once they reach maturity, whereas male orcas' life expectancy is about 30 on average.