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:

Advocates for Lolita: “Why are we wasting time arguing about procedural matters when we could be discussing what’s best for the Lolita and the Southern Resident population?”

NMFS: “OK, if you want to talk about Lolita with regard to the Southern Residents, then file a petition to list her as part of the endangered population.”

Advocates for Lolita: “If you’ll guarantee us that the review will be conducted quickly, we’ll put our lawsuit on hold.”

NMFS: “You’ve got a deal. We will meet the legal deadlines.”

Advocates for Lolita: “That’s all we ever wanted.”

NMFS: “Well, you could have done that a long time ago.”

So now the issues have been taken out of the courtroom and placed into an arena where biologists, policy experts and — oh, yes — lawyers will decide whether Lolita should be considered part of the endangered population. Unless the analysis by the National Marine Fisheries Service changes in some way, the end result could be the same: Lolita remains outside the endangered population.

But, regardless of how it turns out, there will be a new decision by the National Marine Fisheries Service, a new rationale for Lolita’s status and some substantive issues to argue about if Lolita advocates still want to appeal.

Howard Garrett of Orca Network, who has been trying for years to free Lolita from confinement, is taking an optimistic outlook on the situation.

“My thought is that NMFS has willingly expedited the process,” Howie told me. “That, to me, is a really good sign that they see the merits of what we are trying to say.”

Howie, who lives on Whidbey Island where Lolita was captured in 1970, desires as much as anyone for the aging whale to spend the rest of her life in her home waters, even if she remains dependent on people. Check out the “Lolita Retirement Proposal” on the Orca Network website.

Orca Network stayed out of the lawsuit because the organization has a federal contract to monitor whale sightings — but Howie remains outspoken on the need to get Lolita out of Miami.

“The question,” he said, “is what is in the heart and mind of NMFS. If they just want to go through the process of getting the petition rewritten and then reject it, we are back to square one.

“What is the thinking process at NMFS? I’m a little optimistic here. I’m beginning to see that the general public opinion is starting to turn. It was a travesty for her to be taken all that time, and there is a glimmer of possibility for her to come back.”

Lynne Barre, chief of the regional Marine Mammal Branch of NMFS, said she is waiting to see the petition, which will be reviewed first by her office.

Normally, a petition focuses on the status of a species and threats to its continued existence. In this case, there may be some information about whether Lolita can contribute reproductively to the future of the Southern Resident pods. But policies for defining and protecting distinct populations and legal interpretations of the Endangered Species Act could take center stage in the discussion.

The first step, to be taken within 90 days of filing, is to decide “whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted.” If so, NMFS must begin a full review of the proposed action. See 16 u.s.c. 1533b(3)(A).

To reach a decision, NMFS will be reviewing the work of other agencies, including the U.S. Fish and Wildlife Service, Lynne told me. That agency has undertaken a full status review of chimpanzees, which are listed as endangered in the wild and threatened in captivity. Petitioners are requesting that the species be listed as endangered for all chimps. Check out the agency’s news release from Aug. 31, 2011.

There’s a good chance the decision on the chimpanzee listing will have some effect on the 90-day review for Southern Residents. The rationale for listing captive animals could play out for even more species.

Lynne reminded me that a decision is due very soon on a petition to take the Southern Residents off the Endangered Species List, based on an argument that the orcas were not properly defined as a “distinct population segment” for listing purposes. Pacific Legal Foundation has posted the delisting petition (PDF 384 kb) on its website.

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