By Chris Winters Herald Writer
EVERETT — A proposal to list a captive killer whale as protected under the Endangered Species Act is entering an uncertain legal environment.
The orca, known as Lolita, was captured from Penn Cove off Whidbey Island in 1970 and since has been performing for audiences at privately owned Miami Seaquarium wildlife park.
Putting Lolita on the endangered list would have ramifications much wider than just where a single animal will be allowed to live. The status of other endangered animals in captivity across the country could be called into question.
Lolita is the subject of a multiyear dispute between animal rights activists and the Seaquarium. Activists have petitioned the government to list her under the Endangered Species Act.
An ESA listing could spell the end of Lolita’s performing career.
The permit required for Lolita to perform is renewable, and the Endangered Species Act, while it may allow Seaquarium to retain ownership of Lolita, does not allow entertainment permits for captive endangered animals, said Kathy Hessler, director of the Animal Law Clinic at Portland’s Lewis and Clark College Law School.
“We’re only allowed to own wild animals with permits and not allowed to own endangered wild animals except under very special circumstances,” Hessler said. Performing is not one of those circumstances, she said.
Activists, including Freeland-based Orca Network, PETA and the Animal Legal Defense Fund, have long wanted to bring Lolita back to the Northwest. They now see an ESA listing as the best vehicle to do so.
According to the National Oceanic and Atmospheric Administration, Lolita has been determined genetically to have been born a member of the L pod of Southern Resident Killer Whales, which were listed as endangered in 2005.
It is believed her mother is Ocean Sun, an 88-year-old still swimming with L pod, said Howard Garrett, board president of Orca Network.
At the time of the ESA listing, NOAA’s Fisheries service took the unprecedented step of including language that created an exception for wild-born captive orcas.
The petition seeks to remove that language, and in January, NOAA opened the petition for public comment, as required before a ruling.
NOAA Fisheries marine biologist Lynne Barre said that the government does have a precedent to follow, in that captive members of species such as smalltooth sawfish and Atlantic sturgeon have been covered by ESA listings. The theory behind the rule change may also apply to captive chimpanzees, she said.
NOAA will accept comments through March 28, and a decision will be made within one year of that date, Barre said.
Many of the facts surrounding Lolita’s captivity are not subject to debate: she lives in an oval tank 80 feet long (and she is 20 feet long). She occasionally lives and performs with other animals, such as dolphins or sea lions, but has had no contact with others of her species for more than 40 years. She’s also in relatively good health.
Listing Lolita under the ESA wouldn’t guarantee she’d be freed, however. The government’s own study indicates that releasing Lolita into the wild might itself be a violation of the ESA.
The experience of Keiko, the orca of “Free Willy” fame, is sobering: Keiko died five years after his release.
One significant difference is that Keiko had no pod to return to, Garrett said, while Lolita’s pod still swims the waters of Puget Sound. The plan would be to gradually reintroduce Lolita to the L pod in a sea pen that would be built off San Juan Island.
In response to an earlier press release from PETA, the Miami Seaquarium issued a statement through its public relations firm that read, in part, “Even if Lolita is officially deemed part of an endangered species group, Miami Seaquarium would already be in full compliance with any additional requirements and protections that the new designation might impose.”
The Seaquarium declined to answer any questions. But its assertion that it is already in full compliance with additional requirements is not certain.
Hessler sees two possible scenarios if Lolita is added to the endangered list.
First, if NOAA’s ruling also affirms Seaquarium’s ownership rights, then some kind of deal would likely be worked out for Lolita’s release, because the Seaquarium would otherwise be paying to maintain and care for a protected animal that it couldn’t use to generate revenue.
Alternatively, NOAA could challenge Seaquarium’s right to even own Lolita, in which case laws concerning the taking of private property would apply, she said.
“That’s the ultimate goal of the ESA, to limit how we interact with animals that are endangered,” Hessler said.
But even that would not likely be the end of the story. Activists are pursuing change through the administrative rule making process. Seaquarium or the activists might pursue further appeals or petitions, or even file a lawsuit if the ultimate ruling is not to one or the other party’s liking.
A court ruling could bring more clarity to a murky part of the law but also open the doors to establishing a precedent that will change how humans interact with endangered animals across the country.
If Orca Network and the other activists ultimately prevail, then their plan to bring Lolita back to the Northwest can be put into action.
But it is likely that the fight over Lolita’s future will not be over soon.
Chris Winters: 425-374-4165; firstname.lastname@example.org.