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.
The Lummi Nation, an Indian tribe near Bellingham, recently
joined the 25-year-long struggle to bring the killer whale named
Lolita back to her home waters of Puget Sound, where she was
captured and removed 47 years ago.
The tribe’s involvement could change the nature of the ongoing
battle entirely, according to Howard Garrett of Orca Network, who
has been leading the effort.
Trailer to a movie in
production about the Lummi Nation's effort to bring Lolita
home.
“I feel like we are at a whole new level of synergy and mutual
support as we bring out our passions and abilities and professional
skills,” Howie told me during a phone call from Miami, where he and
Lummi leaders were visiting the 52-year-old whale.
Lolita, also known by her Native American name Tokitae, has
lived all these years in a relatively small tank at Miami
Seaquarium, performing twice each day for visitors to the marine
park.
Members of the Lummi Nation contend that what happened to
Tokitae was a kidnapping, and her aquatic prison violates native
traditions that hold orcas in high esteem. An estimated 40-50 orcas
were captured or killed during roundups during the late 1960s and
early ‘70s, officials say, and Tokitae is the last living orca
taken from Puget Sound.
“There is no way they should be getting away with putting these
mammals in captivity for a show,” Steve Solomon, Lummi Natural
Resources Commissioner, said in video segment for
WPLG Channel-10 News in Miami. “Those are our brothers and
sisters that were taken.”
Some have compared Lolita’s capture and removal with actions
surrounding Indian boarding schools, where Native American children
were taken after being forced to leave their families and give up
their native culture.
Orca Network and other groups have proposed bringing Lolita back
to Puget Sound and caring for her in a blocked-off cove on Orcas
Island until she is ready to head out into open waters, possibly
joining her own family. Orca experts believe that her mother is
Ocean Sun, or L-25, and that Lolita would be able to recognize the
voice of her mom and other L-pod whales.
The cost of the proposed sea pen on Orcas Island and moving the
whale by airplane is estimated to cost about $3 million. Howie said
he has no doubt that the money can be raised, especially with the
help of the Lummi Tribe. Orcas Island is just across Rosario Strait
from the Lummi Reservation west of Bellingham.
There is some talk that the Lummi Nation could use its treaty
rights to force action if the Miami Seaquarium continues to resist.
The Lummi are signatories to the Point Elliott Treaty, which
guarantees the right of native people to hunt, fish and gather
shellfish. Courts have ruled that tribes also have a vested right
in protecting the habitat, but their moral argument to bring Lolita
home might be stronger than their legal one.
Eric Eimstad, general manager of Miami Seaquarium, said the
killer whales in Puget Sound are listed as endangered, and there
are clear concerns about their lack of food, boat noise and
chemical runoff.
“The focus should not be on a whale that is thriving in her
environment in Miami,” Eimstad said in a
statement.
“After more than 47 years, moving Lolita from her pool, which
she shares with Pacific white-sided dolphins, to a sea pen in Puget
Sound or anywhere else would be very stressful to her and
potentially fatal,” he continued. “it would be reckless and cruel
to treat her life as an experiment and jeopardize her health to
consider such a move.”
Experts can be found on both sides of the issue, and nobody
denies that Lolita’s tank is smaller than any captive orca habitat
in the U.S.
While in Miami today, Howie was able to watch Lolita in action.
He told me that he wore a floppy hat and sunglasses to escape
notice, since he has been kicked out of Miami Seaquarium several
times for being an “activist.”
“She is looking good,” Howie said of Lolita. “It was encouraging
to see that she is not weak. In fact, she is strong. She made four
breaches up and out of the water.”
That’s a good indication that this whale could not only survive
a flight across the country, but she could thrive, he said. Any
treatments she gets, such as antibiotics, would be continued as
long as necessary.
Meanwhile, the Lummi contingent is planning a 30-day journey
throughout the country to raise awareness about the plight of
Lolita. They will take along a large totem pole of an orca, which
is now being carved.
Former Miami Beach Mayor Philip Levine, who is hoping to be
Florida’s next governor, has signed onto the campaign to bring
Lolita home. He opened a press conference yesterday in which he was
joined by numerous supporters, including Lummi leaders.
“The time is right to do the right thing and finally free this
captured endangered whale,” Levine said. “It was my honor to host
the Lummi Nation on this historic day, as we continue the fight to
bring Tokitae home to her native waters.”
The first video on this page is a trailer for a movie in
production. Producers Geoff Schaaf and Dennie Gordon of Los Angeles
are following the Lummi involvement in the tale of Tokitae, which
they say is emblematic of the larger story about saving the salmon
and all the creatures that live in the Salish Sea.
The second and third videos make up an excellent two-part series
by reporter Louis Aguirre of Miami’s WPLG-Channel 10 News. He digs
into the controversy over Lolita, including a visit to Puget Sound
and what could be Lolita’s temporary home near Orca Island.
When Lolita, a female orca held captive since 1970, was listed
among the endangered population of Southern Resident killer whales,
advocates for Lolita’s release were given new hope. Perhaps the
listing would help Lolita obtain a ticket out of Miami Seaquarium,
where she has lived since the age of 5.
Lolita has lived at Miami’s
Seaquarium since age 5.
Photo courtesy of Orca Network
But a U.S. district judge ruled last week that the Endangered
Species Act could not help her. While the federal law prohibits
human conduct likely to “gravely threaten the life of a member of a
protected species,” it cannot be used to improve her living
conditions, according to the
ruling (PDF 3.3 mb) by Judge Ursula Ungaro in the Southern
District of Florida.
“We very much disagree with the decision, and we will be
appealing it,” said attorney Jared Goodwin, who represents the
plaintiffs — including the People for the Ethical Treatment of
Animals (PETA), the Animal Legal Defense Fund and Orca Network.
Over the objections of attorneys for Miami Seaquarium, the judge
said the plaintiffs have a right to sue the aquarium, but Lolita’s
care and well-being falls under a different law: the Animal Welfare
Act.
The judge noted that the National Marine Fisheries Service,
which is responsible for marine species under the ESA, had
previously stated that keeping threatened or endangered species in
captivity is not a violation of the ESA. NMFS also deferred
enforcement activities to the Animal and Plant Health Inspection
Service, a division of the U.S. Department of Agriculture.
While the ESA prohibits listed species from being “harassed,”
Judge Ungaro said the term takes on a different meaning for animals
held in captivity, since the law is designed to conserve species in
the wild along with their ecosystems.
The judge took note of the complaints about Lolita’s living
conditions, including the small size of her tank, harassment by
white-sided dolphins that live with her and the lack of shade or
other protection from the weather. But those aren’t conditions to
be judged under the ESA, she said.
“Thus, while in a literal sense the conditions and injuries of
which plaintiffs complain are within the ambit of the ordinary
meaning of ‘harm’ and ‘harass,’ it cannot be said that they rise to
the level of grave harm that is required to constitute a ‘take’ by
a licensed exhibitor under the ESA,” she wrote.
Judge Ungaro also cited statements made by NMFS in response to
comments from people who want to see Lolita released into a sea pen
or possibly into open waters. Such a release, “could itself
constitute a ‘take’ under Section 9(a)(1) of the act,” she said,
quoting NMFS.
“The NMFS noted concerns arising from disease transmission
between captive and wild stocks; the ability of released animals to
adequately forage for themselves; and behavioral patterns developed
in captivity impeding social integration and affecting the social
behavior of wild animals,” the judge wrote.
Jared Goodman, the plaintiffs’ attorney, said the judge
needlessly applied a separate definition of “harassment” to captive
versus wild animals. Conditions at the aquarium are clearly
harassment for Lolita, he said, and the Endangered Species Act
should provide the needed protection.
The Animal Welfare Act, which should require humane treatment
for captive animals, is long out of date and needs to be revised
based on current knowledge about marine mammals, he said.
The same plaintiffs filed a new lawsuit in May against the
Department of Agriculture for issuing a new operating license to
Miami Seaquarium without adequately considering the conditions in
which Lolita is being kept. Previously, a court ruled that the
Animal and Plant Health Inspection Service acted properly when it
renewed the license for Miami Seaquarium each year, because the law
does not require an inspection for an ongoing permit.
That is not the case with a new license, which was required when
the Miami Seaquarium came under new ownership as the result of a
stock merger in 2014, according to the lawsuit. Federal inspectors
should have reviewed the legal requirements to certify that
Lolita’s tank and other facilities met the standards before issuing
a new license, Jared said. According to documents he obtained
through public disclosure requests, it appears that the federal
agency simply “rubber-stamped” its previous approvals, he said,
adding that a formal review would show that the aquarium in
violation of animal welfare rules.
As the legal battles go on, it is difficult to see how Lolita is
any closer to being “retired” to a sea pen in Puget Sound where she
was born, although Howard Garrett of Orca Network and other
supporters have developed a plan for Lolita’s return and even have
a specific site picked out. See “Proposal
to Retire the Orca Lolita.” (PDF 3.5 mb).
Meanwhile, with SeaWorld’s announcement
that it will no longer breed killer whales or force orcas to
perform for an audience, a new group called The Whale Sanctuary
Project is looking for sites to relocate whales and dolphins that
might be released. The project has received a pledge of at least $1
million from Munchkin, Inc., a baby product company. For details,
check out the group’s website and a
press release announcing the effort. I should point out that
SeaWorld officials say they won’t release any animals.
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
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.
“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.”
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.
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
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.
“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:
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
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.”
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
“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.
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.”
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. Continue reading →
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.
