The legal stage was already set for Lolita, the last killer whale from Puget Sound to survive in captivity.
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
Thanks for writing about this breakthrough in our efforts to bring Lolita home. Now our challenge is to persuade NOAA Fisheries to overcome the beliefs promulgated by the combined forces of the captive orca industry over the past four decades that captive orcas can never be returned to their native waters because it could kill them or could harm their wild conspecifics (family).
So we are asking all supporters of our proposal for Lolita’s retirement to submit comments to NOAA Fisheries along these lines:
The government has proposed a rule to grant Lolita equal status with her family as a member of an endangered species, pending a 2-month comment period before it is made final. The comment period – to help persuade NOAA Fisheries to not only follow through and grant Lolita’s inclusion as a member of her family, but to allow her to return to her home – began January 27. You can make your comments at http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2013-0056-1841.
Even if/when she is finally determined to be a member of her family under the ESA, if NOAA Fisheries believes her health or her family’s health could be harmed by her return to her native waters they don’t have to allow her to be retired. We have drafted some basic points to make here to clarify those issues:
3 essential points to make:
1. There is no significant risk to Lolita in any stage of Orca Network’s proposal for Lolita’s retirement in her native waters.
a. Transport of orcas according to established protocols is commonly done and has never resulted in serious health issues;
b. Immersion of captive marine mammals in their native waters is described as therapeutic in veterinary literature;
c. The initial immersion is likely to be followed by exploration of the seapen environs, and heightened energy and metabolic strength, as demonstrated by Keiko upon immersion in Icelandic waters;
d. Her ability to catch and eat wild fish is likely to begin to resume in a matter of weeks or months, again as demonstrated by Keiko.
2. A thorough examination will be conducted by a team of veterinarians and pathologists prior to transport to detect any potential communicable diseases. Assuming there are not, there will be no significant risk to any members of the Southern Resident Community as a result of Lolita’s return to her native waters.
Conclusion: there is no harm to Lolita or her family involved in returning her to her home waters.
3. Remaining in captivity will result in continuing mental and physical stresses and health issues.
a. Abundant evidence, including peer-reviewed scientific publications, indicate that captivity increases mortality rates for orcas;
b. Due to her loneliness from living without the companionship of another orca for over three decades, and due to her exposure to the midday Miami sun, and due to the extremely small size of the tank that has been her only environs for over four decades, she is continually suffering as long as she remains in captivity;
c. Despite Lolita’s unlikely good health at over 45 years of age, she is still subject to the adverse effects of captivity on her emotional, mental and physical health.
Conclusion: remaining in captivity DOES constitute real harm to Lolita, and given her relatively good health notwithstanding her conditions, she is an excellent candidate for return to her native waters for retirement under human care in a seapen, and potentially for eventual full release.
Poor Lolitta – it’s not enough she has survived captivity almost 40 years and apparently bonded to her trainers and keepers in order to do so – the self proclaimed ‘do gooders” want to uproot her again and bring her back here to polluted waterways and polluted fish and hasten her demise.
Leave her alone – try to get her a bigger tank where she is –
Sharon