Efforts continue to retrieve orca Lolita, despite legal setback

Although the Endangered Species Act may encourage extraordinary efforts to save Puget Sound’s killer whales from extinction, it cannot be used to bring home the last Puget Sound orca still in captivity, a court has ruled.

A 51-year-old killer whale named Lolita, otherwise called Tokitae, has been living in Miami Seaquarium since shortly after her capture in 1970. Her clan — the Southern Resident killer whales — were listed as endangered in 2005, but the federal listing specifically excluded captive killer whales.

In 2013, People for the Ethical Treatment of Animals (PETA) successfully petitioned the National Marine Fisheries Service to have Lolita included among the endangered whales. But the endangered listing has done nothing to help those who hoped Lolita’s owners would be forced to allow a transition of the whale back into Puget Sound.

This week, the U.S. Eleventh Circuit Court of Appeals in Atlanta reiterated its earlier finding that Lolita has not been injured or harassed to the point that her captivity at the Miami Seaquarium violates the federal Endangered Species Act, or ESA.

Howard Garrett of Orca Network, who has been trying for years to offer Lolita a “retirement home” in Puget Sound (where her family still roams), said it appears that proponents of Lolita’s return have exhausted their options under the ESA.

Howie told me that the court system may be caught in a quandary, because if the ruling went another way, someone would need to be in charge of returning Lolita to the wild. Howie actually has a plan to do just that, first by bringing her to an enclosed cove in Puget Sound. But the 22-foot-long whale’s situation is like no other — which is something that the appeals court acknowledges in its latest ruling denying reconsideration (PDF 46 kb):

“As an initial matter, Lolita presents a unique case, because she:

  • “(1) is of advanced age at 51, having surpassed the median life expectancy for wild, female Southern Resident Killer Whales;
  • “(2) has received medical care for approximately 48 years and continues to receive medical care;
  • “(3) has already been subject to an unsuccessful federal challenge to the conditions of her captivity; and
  • “(4) has no realistic means for returning to the wild without being harmed.”

As in the appeals court’s first ruling (PDF 81 kb), the finding was that the Endangered Species Act has to do with protecting species from extinction, and a lawsuit could be successful only if plaintiffs can show that an individual whale is at risk of serious harm — or “take” as the law calls it. “The term ‘take’ means to harass, harm, pursue, hunt, shoot, kill, trap, capture or collect,” the law states.

PETA’s lawsuit lists 13 injuries — including physiological and psychological issues related to living in a small tank with Pacific white-sided dolphins and blisters caused by excessive sun exposure — but none of them rise to the level of “take” defined in the law, the court states. See also the blog post in Water Ways from June 8, 2016, regarding the original judge’s ruling in the matter.

The welfare of animals in captivity is actually governed by the Animal Welfare Act, the court said. In a second series of legal actions, PETA has been trying to convince the courts that Miami Seaquarium is violating the AWA with an undersized tank for a killer whale, a lack of suitable companionship for Lolita and the excessive sun exposure on her skin.

PETA has appealed a district court ruling that went against the organization.

Meanwhile, supporters of Lolita’s return are putting some hope in efforts by the Lummi Nation, an Indian tribe near Bellingham, which claims that Lolita’s capture was essentially a kidnapping. Some say the tribe may assert legal rights established by Indian treaties in the 1850s. See Water Ways, March 14.

“We have a lot of faith in the Lummis,” Howie said, declining to discuss a specific course of action. “There is a lot of planning and fact-finding and strategizing, and it’s in midstream right now.”

I tried unsuccessfully today to reach the project manager who represents the Lummi Tribe in the matter of Lolita.

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