Tag Archives: Captive killer whales

Will ‘endangered’ status change Lolita’s plight?

The legal stage was already set for Lolita, the last killer whale from Puget Sound to survive in captivity.

Lolita lives alone in a tank at Miami's Seaquarium. Photo courtesy of Orca Network
Lolita lives alone in a tank at Miami’s Seaquarium.
Photo courtesy of Orca Network

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. See “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 battles.

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.

As NMFS stated in the Federal Register (PDF 273 kb):

“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 mistake.

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 Ways:

April 24, 2013: Lolita, the captive orca, could gain endangerd status

Oct. 24, 2012: Should captive orcas be listed as ‘endangered’?

Nov. 20, 2011: Legal actions swirl around orcas Morgan and Lolita

Aug. 8, 2010: Thinking of Lolita, the captive killer whale

July 15, 2010: Lolita’s fate could become linked to Gulf disaster

Lolita, the captive orca, could gain endangerd status

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.

Lolita lives alone in a tank at Miami's Seaquarium. Photo courtesy of Orca Network
Lolita lives alone in a tank at Miami’s Seaquarium. Photo courtesy of Orca Network

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 stressed.

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 act.

“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 wild population.”

Should captive orcas be listed as ‘endangered’?

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 the case.

Lolita lives alone in a tank at Miami’s Seaquarium.
Photo courtesy of Orca Network

A 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 animal.

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:
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