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Environmental reporter Christopher Dunagan discusses the challenges of protecting Puget Sound and all things water-related.
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Posts Tagged ‘Lolita’

Will ‘endangered’ status change Lolita’s plight?

Tuesday, January 28th, 2014

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

Wednesday, April 24th, 2013

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.”


First Olympic class ferry shares name with an orca

Tuesday, November 13th, 2012

A female killer whale named Tokitae remains in an aquarium in Miami, but a future Washington state ferry will carry her name for years to come.

The Washington State Transportation Commission named two new ferries today, choosing Northwest Indian names. And both names — Tokitae and Samish — are associated with killer whales, said Howard Garrett of Orca Network, who attended the commission meeting. See the WDOT’s news release (PDF 29 kb).

Tokitae will be the name of the first Olympic Class ferry.
Rendering courtesy of Washington DOT

“I was reserving excitement until it happened,” Howie told me. “Then it was, ‘Wow, they really did this!’ I am reinvigorated with all the feeling of support.”

Garrett is leading an effort to return Tokitae — known in Miami as “Lolita” — to the waters of Puget Sound, where her extended family still lives. See “Proposal to retire the orca known as Lolita.”

He says naming the ferry could indirectly help the cause of relocating Lolita/Tokitae, although the action carries no endorsement of any kind.

“It demonstrates an understanding and awareness of her predicament, and it honors her and her family,” he said. “I think that goes a long way.”

The second ferry was named for “Samish,” which means “giving people.” It is the name of a tribe that once ranged from Northern Puget Sound into the Cascade Mountains. It’s also the name for J-14, a 38-year-old female orca who became a grandmother in August.

So, if the ferry Tokitae is named for an orca, where did the orca get her name?

The answer to that question goes back to 1970, when a veterinarian from Miami’s Seaquarium, Jesse White, came to Seattle to select an orca to be trained for public viewing.

“He had a couple to choose from, and he chose this young female,” explained his daughter, Lisa White Baler. “They really bonded right away.”

As Lisa tells it, her dad saw something special in the young whale and wanted a name that would fit the orca’s beauty, courage and gentleness.

“He was in a gift store, probably buying gifts for myself and my brother when he saw something with ‘Tokitae’ on it … and he decided that had to be her name.”

The Coast Salish greeting means, “nice day, pretty colors,” according to the ferry-naming proposal (PDF 68 kb) submitted by Orca Network.

When the young whale arrived in Miami, the owners of the aquarium decided to change her name to Lolita.

Howard Garrett says it was one way to divest the animal of her history, allowing people to believe that she was just taken off a shelf, not captured from the open waters of Puget Sound. As the story goes, the name Lolita was chosen because she would become the young bride of an older male killer whale named Hugo, also from Puget Sound. (Check out the Wikipedia summary of the Vladimir Nabokov novel.) The two orcas performed in shows together until Hugo died in 1980.

Lisa says her father, while serving as staff veterinarian, argued that the marine mammals at the aquarium needed bigger quarters. Later in life, her father got to know researcher Ken Balcomb, a San Juan Island resident who was studying the orca families. Dr. White came to support Lolita’s return to Puget Sound, according to Lisa.

Lisa, who was born in 1966, says she recently realized that she is the same age as Tokitae/Lolita, and she is especially thrilled for the ferry to be named after the whale.

“I grew up with her,” she said. “My father died in 1996, and so much of his legacy is left for me to deal with. I am thrilled and excited for all the people who have become Toki’s champions.”

In Miami, Lisa said, trainers still use the name “Tokitae” or “Toki” when working behind the scenes; she’s only “Lolita” for an audience. Some of the trainers signed the petition to name the ferry after her.

Lisa said she would like to visit Puget Sound when the new ferry is launched or at the time of an official naming ceremony. She says she feels a special pull to this area.

Howard Garrett says he reluctantly uses the name “Lolita” in his campaign to bring her back, because that is the name the public knows.

“Tokitae is her Northwest name,” he said, “and this (new ferry name) helps connect her to her family. The minute she touches her home waters, she loses ‘Lolita.’”


If only whales could vote …

Tuesday, November 6th, 2012

UPDATE, Nov. 13, 2012
We still don’t know much about the methods that campaigns use to persuade voters, including the mining of Facebook data. But ProPublica brings us some information in an article titled “Everything We Know (So Far) About Obama’s Big Data Tactics.” While this doesn’t have much to do with water issues, it certainly ties into the email that Susan Berta received on election day.
—–

Earlier today, Susan Berta of Orca Network received what appears to be a computer-generated email from President Obama’s campaign headquarters. The email, probably part of a final push for votes, has generated some election-day levity.

Here’s the message:

“Hey Susan — don’t wait a moment.
“Share this on Facebook with Lolita and xxxx — and tell them to vote today. They live in battleground states where, even at this time on Election Day, this is still anybody’s race. They’re more likely to vote if you remind them — and when the polls close, you’ll know you gave President Obama a nice last-minute lift.”

Lolita, of course, is the killer whale from Puget Sound who has spent most of her life in a tank in Miami’s Seaquarium. (See Water Ways, Oct. 24.) Florida is indeed a battleground state where both President Obama and Mitt Romney are looking for every vote they can get.

Susan probably received the message based on her personal Facebook page, where she is signed up as friends with numerous advocates who would like to bring Lolita back home to Puget Sound. Some people use the word “Lolita” in the name of their Facebook page dedicated to the whale. No doubt some computer made the connection between Susan and her “friend” Lolita, who is old enough to vote … if only she were human.

Susan told me she didn’t want to post anything political on Orca Network’s Facebook page, but she couldn’t resist sharing this email with a wider audience. I told her this isn’t political; it’s just funny.

Now, if whales were given the power of the ballot, what kind of voting block would they become? And how would candidates appeal to this minority group?


Should captive orcas be listed as ‘endangered’?

Wednesday, October 24th, 2012

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:
(more…)


Legal actions swirl around orcas Morgan and Lolita

Sunday, November 20th, 2011

UPDATE: Dec. 13, 2012

Advocates for the release of Morgan have failed in their appeal to overturn the court ruling that transferred the young killer whale to Loro Parque, a Spanish amusement park. An appeals court ruled that the transfer was not unlawful. See today’s Dutch News

Barbara van Genne of Orca Coalition:

“Morgan is provisionally kept in Tenerife. Fortunately, in Spain animal protectors are attracting the fate of the orca and want to continue our fight there. We’ll continue to monitor Morgan and we will help where we can. And in the Netherlands we focus on the future, to ensure that stranded cetaceans will no longer fall in the hands of the commercial industry. The fact that the license for the care of these animals is no longer in the name of the amusement park Dolfinarium, but in the name of SOS Dolphin, is a good first step.”

—–

UPDATE: Nov. 29

Morgan was loaded into a plane today and flown to her new home in Loro Parque, an amusement park on the Spanish island of Tenerife. The transport, which involved trucks on both ends of the trip, was uneventful.

Toby Sterling covered the story for the Associated Press.
—–
UPDATE: Nov. 21

A Dutch court ruled this morning that Morgan may be sent to live at Loro Parque aquarium, ruling against advocates who had hoped to reunite the young orca with her family in Norway.

In a written finding, Judge M. de Rooij said chances of the female whale surviving in the wild were “too unsure,” according to a report by Toby Sterling of the Associated Press.

“Morgan can be transferred to Loro Parque for study and education to benefit the protection or maintenance of the species,” she was quoted as saying.

Reactions among supporters for her release are being compiled on the Free Morgan website.

Ingrid Visser, who helped lay the scientific groundwork for Morgan’s release, was quoted as saying the only hope for Morgan now now lie with the Spanish courts or the Norwegian government.

“Personally, I am devastated that after all these months of fighting the good fight, to find that reason and science lost over money and ulterior motives,” Visser wrote on the Free Morgan page. “Our long-term goal of establishing laws to ever prevent an animal in need being turned into an animal used for profit and personal gain will not stop with Morgan’s incarceration.”
—–

Separate legal actions continue to swirl around two famous killer whales, Morgan and Lolita.

The fate of Morgan, the orphan killer whale, lies with an Amsterdam judge who is scheduled to decide tomorrow if the orca should be moved permanently to an aquarium in Spain or be taken to a coastal location where she might be reunited with her family.
said

Steve Hearn, head trainer at Dolfinarium Harderwijk, plays with Morgan at feeding time two weeks ago.
Associated Press photo by Peter Dejong

Morgan, estimated to be 3 to 5 years old, was rescued in poor condition last year in the Wadden Sea and was nursed back to health in a marine park called Harderwijk Dolfinarium. Advocates for her release say Morgan is being commercially exploited in violation of international law regarding marine mammals.

As for Lolita, animal-rights groups in the United States filed a lawsuit last week regarding the killer whale captured in Puget Sound in 1970 and kept in the Miami Seaquarium almost her entire life.

The new lawsuit contends that Lolita should have not have been excluded as part of the “endangered” population when the federal government listed the Southern Residents under the Endangered Species Act in 2005. The Animal Legal Defense Fund and People for the Ethical Treatment of Animals say if Lolita is included among the endangered orcas, it will lead to better treatment and possibly a reunion with her relatives.

Morgan’s story

Advocates for Morgan’s release say her caretakers at the marine park did a good job nursing her back to health, but the law requires that every effort be made to release marine mammals after rehabilitation is complete.

The dolphinarium filed a report saying that it is unlikely that Morgan would be able to survive in the wild and that finding her family was unlikely. Some experts who supported that initial report have since changed their minds, however.

Dutch Agriculture Minister Henk Bleker sided with dolphinarium officials, saying moving Morgan to a large tank at Loro Parque is best under the circumstances. That decision was unchanged after the judge ruled that the ministry must conduct its own evaluation, independent of the dolphinarium.

As time goes on, experts associated with the Free Morgan Foundation say they are getting close to identifying Morgan’s family group, based on recordings of vocalizations. In the latest report, researchers Heike Vester and Filipa I. P. Samarra said, “We do consider it likely that Morgan is either from group P or a group closely related to group P,” which are among the orcas that live in Norway. Check out the report, “Comparison of Morgan’s discrete stereotyped call repertoire with a recent catalogue of Norwegian killer whale calls” (PDF 5.9 mb).

Here are the Water Ways entries I’ve posted so far about Morgan:

Aug. 3, 2011: Supporters of Morgan’s release celebrate a victory

Feb. 2, 2011: Morgan, the orphan orca, gets her own lawyer

Jan. 14, 2011: Orphan orca gains attention of whale advocates

Lolita’s new lawsuit

The Animal Legal Defense Fund and People for the Ethical Treatment of Animals are asking that Lolita be included in the population listed as endangered under the Endangered Species Act.

It isn’t clear what this would accomplish, but the groups make the point that the Endangered Species Act makes some exceptions for listing animals kept in captivity, but the focus is on using those animals for recovery of the listed population and does not apply to animals kept for commercial use, the groups argue. Quoting from the lawsuit filed in U.S. District Court in Seattle (PDF 92 kb):

“In its final listing decision (in 2005), NMFS provided no explanation for its decision to exclude all of the captive members of the Southern Resident killer whale population from the listing of that population as endangered.

“Because of its final listing decision, NMFS has excluded Lolita from the protections of the ESA, thereby allowing her to be kept in conditions that harm and harass her, and that would otherwise be prohibited under the “take” prohibition of the ESA, 16 U.S.C. § 1538(a), including, but not limited to, being kept in an inadequate tank, without companions of her own species or adequate protection from the sun.”

The group asks the court to set aside the portion of the listing decision that excluded Lolita from the endangered population, because it was “arbitrary and capricious, an abuse of discretion, and not in accordance with law.”

Some Water Ways entries related to Lolita:

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

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

Jan. 23, 2008: Lolita, the orca, makes news again

Jan. 12, 2008: Celebrities and a ‘beautiful whale’


Thinking of Lolita, the captive killer whale

Saturday, August 7th, 2010

Here’s a brief reminder that tomorrow is the 40th anniversary of the capture of Lolita, a killer whale that made her home in the Salish Sea until she was pulled out of Whidbey Island’s Penn Cove and taken to the Miami Seaquarium.

At 44 or 45 years old, she is the last living orca from Puget Sound in captivity.
(more…)


Lolita’s fate could become linked to Gulf disaster

Thursday, July 15th, 2010

I woke up this morning listening to radio reporter Greg Allen’s story about Miami Seaquarium on National Public Radio. My competitive side immediately wondered how his story would fit in with my story about the Seaquarium, published in today’s Kitsap Sun.

The aquarium in Miami has been getting some local publicity lately after the National Oceanic and Atmospheric Administration predicted that weathered oil has a pretty good chance of catching the Loop Current and making it all the way to Miami’s Biscayne Bay on the eastern shore of Florida.

Greg Allen got a stronger quote than I from general manager Andrew Hertz: “We pull our water for our animals straight out of the bay. And we filter it and we give them clean water. But the quality of our water is only as good as the quality of the bay.”

A new filtration system installed over the past five years apparently would not be enough to prevent serious illness or death to the animals in the aquarium.

What Allen failed to bring up in his report was the growing concern for Lolita, the killer whale, as well as numerous other marine mammals housed in the aquarium. As I point out in my story, folks like Howard Garrett of Orca Network and Ric O’Barry of “The Cove” are raising alarms about the dangers of oil and declaring that it is time to bring Lolita back to her original home in Puget Sound.

Hertz said he will do what it takes to protect animals in the aquarium, and his staff is working on a contingency plan, which may involve financial support from BP. But how quickly can something be built? I guess we’ll have to wait to see the specific plans.

Meanwhile, local biologists have put together a draft plan for returning Lolita to Puget Sound, if circumstances allow. The plan was developed a number of years ago and might need to be updated. But if this oil spill fails to stir up enough action to move Lolita, it seems highly unlikely that she will ever return to Puget Sound.


Amusing Monday: Is it funny when an orca crushes a kayaker?

Monday, December 1st, 2008

You may have seen this video before. Circulating on the Internet for at least four years, this clip has generated a lot of excitement. Several people have sent it to me by e-mail, and YouTube keeps getting mileage from it. The video shows a killer whale breaching and coming down on top of a nearby kayaker. But things are not always as they seem.

It turns out that the video is the Korean version of a commercial for Poweraid, an energy drink made by Coca Cola, according to Snopes.com, which is a good place to check out Internet rumors and falsehoods.

I have yet to see the English version of this commercial. But the footage of the killer whale breaching without any kayaks around can be seen in the trailer for the movie “Lolita: Slave to Entertainment.”

So it appears that this video has a Northwest connection. As many of you know, Lolita, captured in Puget Sound in 1970, is the last orca from this area to remain alive in an aquarium, and she can be seen doing tricks in Miami.

Meanwhile, opponents of captive orcas continue their effort to return Lolita to Puget Sound, a subject that has been debated in Water Ways over the past year.

Orca Network provides a lot of background information on its Lolita Web page. The organization also holds fundraisers to help in the effort to return Lolita to her native waters.

Since Lolita was captured as a calf, the whale in this video cannot be her. Can anyone can identify the orca that so gracefully crushes a kayaker? Also, if anyone has information about the footage in “Lolita: Slave to Entertainment,” I’d like to hear more.


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"In the end, we will conserve only what we love, we will love only what we understand, and we will understand only what we are taught."Baba Dioum, Senegalese conservationist

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