By Chris Joseph, Jonathan Kendall
Clarification, May 12: Though some NOAA officials told New Times that riding Lolita would be considered harassment, others told New Times that it may have to be first shown that riding her is harmful to her health before it could be considered harassment. The threatened lawsuit could resolve this uncertainty.
Original story posted May 11:
For years, activists have fought for the release or better treatment for Lolita, the killer whale at the Miami Seaquarium. A court battle resulted in her being declared endangered — a status that goes into effect today. This means that protections afforded by the Endangered Species Act will now apply to her. One of those protections is that endangered animals cannot be "harassed." Today, an official from the National Oceanic and Atmospheric Administration (NOAA) told New Times that riding Lolita — as trainers do in their shows — counts as harassment. Activists in turn said that they would sue the Seaquarium.
NOAA tells New Times that though Lolita's new protected status does not prohibit the Seaquarium from possessing her — because she was lawfully captured in 1970 — it does prohibit the Seaquarium from harassing Lolita.
Connie Barclay, a spokesperson for NOAA, pointed out that the public is prohibited from engaging in activities known "take" with endangered animals. "Take" includes harassing them.
In response to this activists are pushing to sue the Seaquarium to have the marine mammal park cease forcing the nearly 50 year old orca from performing.
"The Animal Legal Defense Fund, PETA and the Whale and Dolphin Conservation Organization will be suing them so she cannot be rode in shows," said Robin Jewell who organized a protest last Saturday against Palace Entertainment. " Lolita will have to be inspected, tested for disease, etc, before being able to enter the ocean [with NOAA's permission\."
PETA has sent the Miami Seaquarium a letter notifying its intent to file a lawsuit in federal district court under the Endangered Species Act (ESA). The letter was sent Monday morning.
In February, Lolita was listed as protected by the Endangered Species Act, in no small part thanks to PETA and fellow animal activists petitioning NOAA, which had listed Lolita's wild pod, the Southern Resident Killer Whales, as endangered.
Last year, a judge dismissed a 2012 lawsuit aimed at the U.S. Department of Agriculture's renewal of Miami Seaquarium's Animal Welfare Act license, which allows the park to continue to trot out Lolita, who has lived in captivity since 1970. That lawsuit, filed by the Animal Legal Defense Fund (ALDF) and other animal rights groups, claimed that Lolita's tank violates USDA standards.
The ALDF, along with the Orca Network and PETA, then appealed the dismissal, claiming that the U.S. District Court didn't thoroughly review information in the lawsuit. Part of that lawsuit said that Seaquarium is in violation of at least three of the Animal Welfare Act's regulations, including that Lolita's tank is smaller than the required size and that she has no other orca to keep her company. That appeal is pending.
But now PETA and its coalition of partners are going right at Seaquarium, sending the letter of intent to sue directly to the park's general manager, Arthur Hertz.
"This is actually the first time we'll be suing the Seaquarium, but we've filed lawsuits against the government concerning the Seaquarium," PETA's Senior Media Coordinator David Perle tells New Times.
PETA's letter mentions how Lolita's tank is "woefully small" and goes on to say that the orca has been stuck in a "stunning level of deprivation," causing her to suffer.
The letter contents that the Seaquarium is violating ESA regulations by subjecting her to inhumane treatment, and quotes leading orca researcher Dr. Ingrid Visser, who told NOAA during a public comment that Lolita's tank doesn't allow her to maneuver in the water naturally, and that the concrete platform at the center of the tank forces the orca “to make continual and substantial corrective adjustments to her normal movements and behaviours in order to avoid colliding with the platform and walls."
"Lolita has already endured more than 40 years of miserable confinement, with devastating consequences for her well-being," PETA Foundation Director of Animal Law Jared Goodman said in a statement. "PETA is taking action to ensure that this facility's blatant disregard for her welfare and apparent violation of the law do not cost her more time in a tiny concrete tank."
"For too long, Lolita has suffered pathetic and illegal conditions at the Miami Seaquarium," Animal Legal Defense Fund Executive Director Stephen Wells says. "ALDF intends to see that this facility's failure to comply with the law, and the harms they've caused her, is swiftly corrected by the courts."