Tag Archives: People for the Ethical Treatment of Animals (PETA)

Lolita joins endangered orcas; her supporters
push on for her return

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.

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

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.

Andrew Hertz, general manager at Miami Seaquarium, said in a statement issued today:

“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 time.

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 for Lolita.

“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 aquariums.

Howard Garrett addressed the issue of abuse in a news release from Orca Network:

“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.”

For additional information from NOAA Fisheries, visit the website: “Southern Resident Killer Whale — Lolita.”

PETA and ALDF issued a joint news release today.

Today’s determination was not a surprise, as I addressed the logic of the federal listing when it was proposed a year ago. My post in Water Ways on Jan. 28 includes links to previous discussions about Lolita.

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