UPDATE, Jan. 2
The Center for Whale Research has announced that J-2, known as
“Granny,” has apparently died. The oldest orca among the three
Southern Resident pods, Granny was one of the first Southern
Residents identified when Ken Balcomb began his Orca Survey in
1976. At the time, she was estimated to be at least 45 years old
and probably in her 70s, putting her likely age at more than 100.
Ken’s tribute to Granny can be read on the Center for Whale Research
website. More to come.
When it comes to the killer whales that frequent Puget Sound, a
year can make all the difference in the world. Last year at this
time, we were celebrating a remarkable baby boom — eight new orca
calves over the previous 12 months. See
Water Ways, Dec. 16, 2015.
Another new baby was added in January of this year, for a total
of nine. But if 2015 was the boom year, then 2016 turned out to be
a major bust, with six orca deaths recorded during the calendar
The latest death among the Southern Residents was J-34, an
18-year-old male named DoubleStuf. He was found dead floating near
Sechelt, B.C., northwest of Vancouver, on Dec. 20. Check out the
tribute and wonderful photos
on Orca Network’s webpage.
When Lolita, a female orca held captive since 1970, was listed
among the endangered population of Southern Resident killer whales,
advocates for Lolita’s release were given new hope. Perhaps the
listing would help Lolita obtain a ticket out of Miami Seaquarium,
where she has lived since the age of 5.
But a U.S. district judge ruled last week that the Endangered
Species Act could not help her. While the federal law prohibits
human conduct likely to “gravely threaten the life of a member of a
protected species,” it cannot be used to improve her living
conditions, according to the
ruling (PDF 3.3 mb) by Judge Ursula Ungaro in the Southern
District of Florida.
“We very much disagree with the decision, and we will be
appealing it,” said attorney Jared Goodwin, who represents the
plaintiffs — including the People for the Ethical Treatment of
Animals (PETA), the Animal Legal Defense Fund and Orca Network.
Over the objections of attorneys for Miami Seaquarium, the judge
said the plaintiffs have a right to sue the aquarium, but Lolita’s
care and well-being falls under a different law: the Animal Welfare
The judge noted that the National Marine Fisheries Service,
which is responsible for marine species under the ESA, had
previously stated that keeping threatened or endangered species in
captivity is not a violation of the ESA. NMFS also deferred
enforcement activities to the Animal and Plant Health Inspection
Service, a division of the U.S. Department of Agriculture.
While the ESA prohibits listed species from being “harassed,”
Judge Ungaro said the term takes on a different meaning for animals
held in captivity, since the law is designed to conserve species in
the wild along with their ecosystems.
The judge took note of the complaints about Lolita’s living
conditions, including the small size of her tank, harassment by
white-sided dolphins that live with her and the lack of shade or
other protection from the weather. But those aren’t conditions to
be judged under the ESA, she said.
“Thus, while in a literal sense the conditions and injuries of
which plaintiffs complain are within the ambit of the ordinary
meaning of ‘harm’ and ‘harass,’ it cannot be said that they rise to
the level of grave harm that is required to constitute a ‘take’ by
a licensed exhibitor under the ESA,” she wrote.
Judge Ungaro also cited statements made by NMFS in response to
comments from people who want to see Lolita released into a sea pen
or possibly into open waters. Such a release, “could itself
constitute a ‘take’ under Section 9(a)(1) of the act,” she said,
“The NMFS noted concerns arising from disease transmission
between captive and wild stocks; the ability of released animals to
adequately forage for themselves; and behavioral patterns developed
in captivity impeding social integration and affecting the social
behavior of wild animals,” the judge wrote.
Jared Goodman, the plaintiffs’ attorney, said the judge
needlessly applied a separate definition of “harassment” to captive
versus wild animals. Conditions at the aquarium are clearly
harassment for Lolita, he said, and the Endangered Species Act
should provide the needed protection.
The Animal Welfare Act, which should require humane treatment
for captive animals, is long out of date and needs to be revised
based on current knowledge about marine mammals, he said.
The same plaintiffs filed a new lawsuit in May against the
Department of Agriculture for issuing a new operating license to
Miami Seaquarium without adequately considering the conditions in
which Lolita is being kept. Previously, a court ruled that the
Animal and Plant Health Inspection Service acted properly when it
renewed the license for Miami Seaquarium each year, because the law
does not require an inspection for an ongoing permit.
That is not the case with a new license, which was required when
the Miami Seaquarium came under new ownership as the result of a
stock merger in 2014, according to the lawsuit. Federal inspectors
should have reviewed the legal requirements to certify that
Lolita’s tank and other facilities met the standards before issuing
a new license, Jared said. According to documents he obtained
through public disclosure requests, it appears that the federal
agency simply “rubber-stamped” its previous approvals, he said,
adding that a formal review would show that the aquarium in
violation of animal welfare rules.
As the legal battles go on, it is difficult to see how Lolita is
any closer to being “retired” to a sea pen in Puget Sound where she
was born, although Howard Garrett of Orca Network and other
supporters have developed a plan for Lolita’s return and even have
a specific site picked out. See “Proposal
to Retire the Orca Lolita.” (PDF 3.5 mb).
Meanwhile, with SeaWorld’s announcement
that it will no longer breed killer whales or force orcas to
perform for an audience, a new group called The Whale Sanctuary
Project is looking for sites to relocate whales and dolphins that
might be released. The project has received a pledge of at least $1
million from Munchkin, Inc., a baby product company. For details,
check out the group’s website and a
press release announcing the effort. I should point out that
SeaWorld officials say they won’t release any animals.
An open letter from me to Ken Balcomb, director of the Center
for Whale Research, on the 40th anniversary of the research
Congratulations on 40 years of superb research regarding the
killer whales of the Salish Sea and their relationships to all
living things. Your unprecedented work has helped us all understand
the behavior of these orcas and how quickly their population can
decline — and sometimes grow. I admire your steadfast efforts to
find answers to the mysteries of these whales and to push for
efforts to protect them.
On a personal note, your willingness to take time to explain
your findings to me as a news reporter will always be appreciated.
The same goes for Dave Ellifrit and all your associates through the
I was fascinated with the blog entry posted on Friday, which
showed the log book you began compiling during your encounters with
killer whales on April 8, 1976 — the very first time you described
these animals after forming the organization. The distant words on
the page demonstrate how much you — and the rest of us — have
learned, and it demonstrates that good research is a matter of
step-by-step observations. I hope everyone gets the chance to read
these pages, and I look forward to the next installment in the
Thank you for your dedication, and I look forward to many
more years of reports from you and your associates at the Center
for Whale Research.
With highest regards, Chris.
The Orca Survey Project began on April 1, 1976, under a contract
with the National Marine Fisheries Service to conduct a six-month
survey to figure out how many killer whales lived in Puget Sound.
Ken was able to use an identification technique developed by
Canadian biologist Mike Bigg. By identifying individual orcas,
researchers came to understand each of their families, their lives
and even their unique behaviors — which I would call
“personalities” for want of a better term.
Speaking of personality, if I’m not reading too much between the
lines, I see Ken’s scientific perspective mixed with his fondness
for the animals in the
first log entry about mooring the boat and staying the night in
“In the evening, we went for a hike into town for dinner and a
few beers with the local folks at the Town Tavern. We spread the
word and handout of the ‘study’ to all who would receive them. Most
folks were takers, but a few were concerned as to which side we
were on. People imagine sides of the killer whale controversy —
mostly leave them alone, or catch them to show to the folks from
Missouri. Our description of a killer whale study by photo
technique seemed to sit well with all ‘sides,’ though there were a
few skeptics, I’m sure.”
I actually looked over many of these pages from Ken’s log a
number of years ago, but for some reason they take on new meaning
now as we look back over 40 years of research and realize how far
we’ve come in understanding these killer whales — not forgetting
how much more we have to learn.
log book entry appears to be a description of the first direct
encounter Ken experienced from a boat at the beginning of his study
on April 8, 1976, as he came upon K and L pods off Dungeness Spit
“We cruised toward the large group of whales, first at 2300 RPM
and then reducing to about 2000 RPM as we approached to within ½
mile of the whales. It was very apparent that the whales were
initially concerned with avoiding us. They dove and came up several
minutes later a good long distance astern of us, toward Port
Angeles. We turned and proceeded toward the large group again and,
at a distance of about 400 yards, they porpoised briefly and dove
again for several minutes.
“Both we and the whales did not behave calmly for the first hour
of the encounter. Rain was spoiling our opportunities for
photographs, getting our cameras all wet and dampening our spirits.
Even at slow speed and with patience, we did not closely approach
the group of 25 whales, so we started toward a smaller group a
little farther offshore.
“By 10:05, things seemed to have calmed down considerably. By
maintaining 1050 RPM and taking slow approaches, we were tolerated
by one male in company with a female and a calf about 11 ½ feet.
The main group of 25 whales calmed down immediately and resumed a
leisurely dive interval of about one minute to one min. 50 seconds
down, still proceeding westerly.”
Remember that this was only months after the final capture of
killer whales in Puget Sound. (See
account from Erich Hoyt for PBS Frontline.) What were the
intentions of this boat approaching them? In time, these whales
came to realize that Ken and his crew would do them no harm.
If only they could know how much human attitudes around the
world have changed over the past 40+ years.
Lolita, the Puget Sound orca kept for 44 years at Miami
Seaquarium, has been declared a member of the endangered population
of Southern Resident killer whales.
Advocates for Lolita’s “retirement” and possible release back to
her family say the action by NOAA Fisheries is a key step in the
effort to free the 48-year-old whale. The next step would be a
lawsuit filed under the Endangered Species Act, and advocates say
they are prepared for that eventuality.
A news release issued today by
NOAA Fisheries plays down the effect of listing Lolita among
the endangered orcas:
“While Lolita will now share the endangered listing status of
the population she came from, the decision does not impact her
residence at the Miami Seaquarium. Lolita is a killer whale that
has resided at the Miami Seaquarium since 1970.”
The original listing created an exemption for captive killer
whales, an exemption that was challenged in a petition filed in
2013 by People for the Ethical Treatment of Animals (PETA).
“NOAA Fisheries considered the petition and concluded that
captive animals such as Lolita cannot be assigned separate legal
status from their wild counterparts.”
NOAA received nearly
20,000 comments on the proposal to list Lolita as endangered,
and many expressed hope that Lolita would be returned to her home.
But that would go against the wishes of Miami Seaquarium, which
does not plan to give her up.
“Lolita has been part of the Miami Seaquarium family for 44
years. Just because she was listed as part of the Endangered
Species Act does not mean that she is going anywhere. Lolita is
healthy and thriving in her home where she shares her habitat with
Pacific white-sided dolphins. There is no scientific evidence that
the 49-year-old post-reproductive Lolita could survive in a sea pen
or the open waters of the Pacific Northwest and we are not willing
to treat her life as an experiment.”
As stated by NOAA Fisheries in the news release:
“While issues concerning release into the wild are not related
to this Endangered Species Act listing decision, any future plan to
move or release Lolita would require a permit from NOAA Fisheries
and would undergo rigorous scientific review.
“Releasing a whale which has spent most of its life in captivity
raises many concerns that would need to be carefully addressed.
These concerns include disease transmission, the ability of
released animals to adequately find food, difficulty in social
integration, and that behavioral patterns developed in captivity
could impact wild animals.
“Previous attempts to release captive killer whales and dolphins
have often been unsuccessful, and some have ended tragically with
the death of the released animal.”
Howard Garrett of Orca Network, a longtime advocate for
returning Lolita to Puget Sound, said he expects that concerns
raised by the agency can be overcome, as they were with Keiko
(“Free Willy”). Following Keiko’s movie career and a fund-raising
campaign, the killer whale was returned to his home in Iceland and
learned to feed himself. Still, it seemed he never fully integrated
with wild whales that he encountered, and nobody knows if he ever
found his family. Keiko died of apparent pneumonia about two years
after his release.
Howie insists that the situation with Lolita is entirely
different, since we can identify her family, including her mother,
L-25, named Ocean Sun. The mom is estimated to be 87 years old and
still doing fine.
Plans have been developed to bring Lolita to a sea pen in Puget
Sound, providing care and companionship, such as she gets now.
Then, if she could integrate with L pod, release would be a likely
option. In any case, Lolita would have much more room to move
about, Howie says.
Getting Lolita listed as endangered is important, he said,
because she will be covered by the Endangered Species Act, which
makes it illegal to harm or harass a listed species. A court would
need to decide whether confinement in a small tank constitutes harm
or harassment, he said, but some evidence is provided by the 40 or
so orcas taken from Puget Sound that died well before their
The decision is certain to spur on the debate about whether the
killer whale would be better off living out her life in
now-familiar surroundings or giving her a taste of freedom with the
risks that come with moving her to open waters.
Howie has been working with PETA attorney Jared Goodman on a
potential lawsuit against Miami Seaquarium to improve conditions
“We are prepared to do whatever is necessary to ensure that her
newly granted protections are enforced,” Jared told me. “I cannot
speak specifically about what PETA will do next.”
Jared said he needs to know whether NOAA Fisheries will take any
enforcement action before he proceeds with a “citizens lawsuit”
under the ESA.
Talk of Lolita’s release into the wild is premature, he said.
The goal is to transfer her back to her original home in the San
Juan Islands and place her in a large protected pen. Only after
determining that release is in her best interest would that idea be
furthered and developed into an action plan.
Meanwhile, PETA is preparing for oral arguments in March before
the 11th Circuit Court of Appeals on another case involving Lolita.
The organization, along with the Animal Legal Defense Fund,
contends that conditions in the Miami Seaquarium constitute abuse
under the federal Animal Welfare Act. The specific conditions at
issue are the size of her tank, her ongoing exposure to sun and her
lack of animal companionship.
A lower court ruled that the U.S. Department of Agriculture has
discretion to determine what constitutes acceptable conditions,
despite written guidelines, when granting permits to zoos and
Howard Garrett addressed the issue of abuse in a news release
“Our society doesn’t like animal abuse, and the more we learn
about orcas the less we can tolerate seeing them locked up as
circus acts. The legal initiatives that led to this ruling have
been brilliant and effective, as the mood of the country shifts
from acceptance to rejection of captive orca entertainment
enterprises. Things that seemed impossible a year ago seem doable
Today’s determination was not a surprise, as I addressed the
logic of the federal listing when it was proposed a year ago. My
Water Ways on Jan. 28 includes links to previous discussions
The legal stage was already set for Lolita, the last killer
whale from Puget Sound to survive in captivity.
Putting Lolita on the Endangered Species List, along with her
wild relatives who were already listed, follows a pattern
established over the past decade, going back to a 2001 court ruling
about salmon. Now, the National Marine Fisheries Service intends to
include Lolita among the listed Southern Resident killer whales.
“Petition to list the killer whale known as Lolita….”
But what the endangered designation will mean for Lolita herself
is yet to be seen and is likely to be the subject of further legal
People for the Ethical Treatment of Animals (PETA), which filed
the petition along with the Animal Legal Defense Fund, hailed the
latest decision by NMFS. The group said in a news
release that the decision “opened the door to the eventual
release of Lolita.”
Jarred Goodman, who handled the case for PETA, told me that it
is PETA’s belief that holding Lolita in a small tank at Miami
Seaquarium constitutes “harm and harassment,” which are violations
of the Endangered Species Act.
After NMFS completes changes to the listing, PETA has several
options, he said, although he is not authorized to discuss specific
strategies. Calling on NMFS to take action on behalf of Lolita or
filing a citizen lawsuit are among them.
Nothing in the NMFS findings would change anything for Lolita,
however. The bottom line is that NMFS could find no legal
justification in the Endangered
Species Act (PDF 147 kb) or related court decisions for
separating the captive orca from wild Southern Residents when it
comes to identifying which ones are at risk of extinction.
“While the ESA authorizes the listing, delisting, or
reclassification of a species, subspecies, or DPS (distinct
population segment) of a vertebrate species, it does not authorize
the exclusion of the members of a subset or portion of a listed
species, subspecies, or DPS from a listing decision….
“The ESA does not support the exclusion of captive members from
a listing based solely on their status as captive. On its face, the
ESA does not treat captives differently. Rather, specific language
in Section 9 and Section 10 of the ESA presumes their inclusion in
the listed entity, and captives are subject to certain exemptions
to Section 9.”
In other words, the original decision not to include captive
killer whales in the population at risk of extinction was a
In finding that Lolita is part of the endangered population,
NMFS noted that agency officials agreed with a 2001 court ruling in
which a judge determined that hatchery salmon should be considered
part of the salmon population at risk of extinction.
Following that logic, the NMFS included captive fish in the
listing of endangered smalltooth sawfish and endangered Atlantic
sturgeon. Meanwhile, the U.S. Fish and Wildlife Service decided
last year that captive chimpanzees should be included among the
wild population listed as endangered.
The ESA does allow captive animals to be treated differently,
provided they were in captivity at the time of the listing and
“that such holding and any subsequent holding or use of the fish or
wildlife was not in the course of a commercial activity.”
For Lolita, NMFS has stated that continued possession of captive
animals does not require a permit under ESA and that Lolita can
continue to be managed under the Animal Welfare Act. (See
“Questions and answers …”)
Advocates for Lolita say NMFS may not have taken a position on
Lolita, given the latest findings. The notice only says that
holding an endangered animal in captivity is not a violation of the
ESA per se.
I’ll continue to follow the case as it moves forward. Meanwhile,
here are some past of my past observations about Lolita in Water
Lolita, a killer whale taken from Puget Sound in 1970 and placed
in a Miami aquarium, could be reclassified as an endangered
species, along with other endangered Southern Resident orcas. At
the moment, Lolita is not listed at all.
NOAA Fisheries announced today that PETA — People for the
Ethical Treatment of Animals — has provided adequate documentation
to consider whether captive orcas (specifically Lolita) should be
listed along with their counterparts still roaming free.
One must not presume, however, that because NOAA has accepted
PETA’s petition that a listing will follow, agency officials
I was under the impression, from talking to NOAA officials last
year, that we would soon know whether or not the entire Southern
Resident population would be taken off the Endangered Species List,
as proposed by Pacific Legal Foundation. But that decision appears
to be delayed for consideration of the Lolita petition.
“The agency said to make sure that its review is complete and
based on the best available science it would now solicit any new
information about Lolita’s genetic heritage and status to include
in the ongoing status review,” NOAA said in a news release. “A
finding on the delisting petition is due next January.”
PETA filed its petition on behalf of the Animal Legal Defense
Fund, Orca Network and four individuals. The 33-page petition,
filed in January, applies only to Lolita, since the 35 other killer
whales captured in Puget Sound have died, the petition notes.
Documents — including the Lolita petition — can be found on
NOAA Fisheries’ website. I discussed PLF’s delisting petition
and provided links to related documents in
Water Ways last Oct. 24.
The PETA petition strongly challenges the reasons for ever
leaving Lolita out of the endangered population:
“No explanation was offered for Lolita’s exclusion from the
listing because no legitimate explanation exists. Lolita’s
biological heritage is undisputed. The Endangered Species Act
unquestionably applies to captive members of a species, and the
wholesale exclusion of captive members of a listed species is in
excess of the agency’s authority.
“Lolita’s exclusion serves only one purpose: It protects the
commercial interests of the Miami Seaquarium. The Endangered
Species Act specifically precludes agency consideration of whether
listing a species would cause the holder of any member of the
species any economic harm. Thus Lolita’s exclusion violates the
“This petition urges the National Marine Fisheries Service to
rectify this unjustified and illegal exclusion, thereby extending
Endangered Species Act protections to all members of the Southern
Resident killer whale population.
“Although as a legal matter Lolita’s genetic heritage is
sufficient to merit her listing, this petition provides additional
support in four sections. The first section provides the factual
background regarding the Southern Resident killer whales’ listing
and Lolita’s exclusion. The second section explains the application
of the act to captive members of listed species. The third section
applies the five factors that govern listing decisions under the
act to the Southern Resident killer whales generally and also to
Lolita. The fourth section considers policy reasons that support
Lolita’s protection, given her significant scientific value to the
The legal battle to determine whether captive killer whales —
specifically Lolita — should be considered part of the endangered
orca population has been taken out of the courtroom by parties in
settlement agreement (PDF 284 kb) was signed two weeks ago
between the National Marine Fisheries Service — which enforces the
Endangered Species Act for marine mammals — and animal rights
advocates who would like something better for this isolated
Lolita is a female killer whale from Puget Sound who has been
kept in a tank in Miami for 42 years.
The agreement essentially puts the lawsuit on hold pending a
formal petition process under the ESA. Otherwise, the Animal Legal
Defense Fund, People for the Ethical Treatment of Animals and
others in the case would be left to argue about missed deadlines
and proper legal notice to the federal government. See
U.S. District Judge Benjamin Settle’s ruling (PDF 48 kb).
Reading between the lines, I can imagine a conversation between
lawyers for the two sides: Continue reading →