In September 1991, Sealand put the three whales up for sale. In November, Sea World applied to the NMFS for a permit to import them for display.

At the time, both of the females were pregnant, and had begun exhibiting aggressive behavior towards each other and to the male, Tilikum. All the whales had been kept in the same pool. Eventually, the females drove Tilikum into a small medical holding tank, where he was kept. The size of the small tank was considered substandard, but trainers feared that releasing him back into the main tank might be dangerous for both the adult whales and for the calf which had been born on December 24, 1991.

Since the display permit application for all the whales was still pending with the NMFS, on January 3, 1992 Sea World applied for an emergency permit authorizing immediate importation of Tilikum for medical reasons. On January 8 NMFS granted the permit, although in a letter accompanying the agreement, the agency chastised both Sealand and Sea World for not making safe temporary arrangements to hold Tilikum separate from the females until the display permit application had been evaluated.

The temporary emergency permit had several special conditions. First, Sea World could not use Tilikum for display or performance until the display permit was granted. Second, if the display permit was ultimately denied, NMFS required Sea World to return the whales to an appropriate Canadian facility, to be identified by NMFS and the Canadian government. If such a facility could not be found, Sea World should return Tilikum to Iceland and release him at the location he was originally captured.

On April 27, 1992, while the display permit application was still pending, and before any evaluation of viable Canadian facilities had been undertaken, Brad Andrews of Sea World wrote to the Minister of Fisheries in Iceland. In this letter, he asked the Minister to consider whether or not Iceland would be amenable to the release of Tilikum in Icelandic waters. He also stated that Sea World felt that release of Tilikum was not feasible for two reasons. First, because Tilikum would not be likely to survive in the wild, and second, because there was a risk that Tilikum could introduce disease carrying organisms from Canadian waters into the Icelandic environment. Andrews warned, "Even with a thorough examination of Tilikum, it is possible that the presence of some subclinical organisms not native to Icelandic waters might not be detected."

Thorsteinn Palsson, Iceland's Minister of Fisheries, agreed with Sea World's assessment of the risks involved. In his letter to Andrews, he cited both concerns raised by Sea World about Tilikum's the release: that Tilikum may not survive in the wild, and that he might introduce diseases previously foreign to Icelandic waters.

In addition to denying permission for the release of Tilikum, the Minister went on to add, "The factors that render the return of the killer whale, Tilikum, infeasible would apply to other killer whales that have been maintained in captivity outside of Iceland. Consequently, this Ministry ... [has] concluded that neither the return of this killer whale, nor the return of others now in captivity, will be authorized.... We trust that our response fully and finally disposes of any questions regarding the return of killer whales to their point of collection in Icelandic waters. "

This policy is a major obstacle for those attempting to return Keiko to Iceland. When questioned by FRONTLINE as to whether Keiko would be allowed to return to Iceland, Palsson replied "You know, the answer -- what the answer was some years ago... It was no, and it was on the basis of scientific recommendations." The answer he is referring to is Iceland's response to Sea World's inquiry about Tilikum.

Critics of Sea World claim that Andrews' precipitant letter to Palsson was an attempt to get the Icelandic government to issue a blanket policy prohibiting the return of any orcas to Icelandic waters. However,when interviewed by FRONTLINE , Andrews and McBain stated that the NMFS emergency permit required them to investigate Tilikum's return to Iceland: "The National Fisheries Service asked the question. We didn't. The Icelandic government responded. We didn't. We had nothing to do with the question, nor the answer. So whoever thinks that we lobbed anything into the picture, is absolutely off base."