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.
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:
