The World’s Loneliest Killer Whale Dealt Setback on Road to Freedom

A judge rules that the harassment and harm Lolita faces in her tiny tank at Miami Seaquarium aren’t reason enough to call for her release.

Lolita posing preshow at the Miami Seaquarium. (Photo: Ines Hegedus-Garcia/Flickr)

Jun 3, 2016· 2 MIN READ
David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

Lolita, the captive killer whale at the Miami Seaquarium, had her day in court—and she lost.

On Wednesday, a federal judge in Miami dismissed a lawsuit filed on Lolita’s behalf by a coalition of animal rights groups claiming that the subpar conditions in Lolita’s tiny tank were a violation of the federal Endangered Species Act. The groups filing the suit included the Animal Legal Defense Fund, People for the Ethical Treatment of Animals, and the Orca Network.

“We were definitely surprised by this decision, based on an incredibly narrow and, we believe, flawed interpretation of the ESA,” said PETA Foundation Director of Animal Law Jared Goodman. Goodman said the judge in the case, Ursula Ungaro, “interpreted the act to not protect captive endangered animals from anything but imminent death, and there is simply no basis for that in the law.”

“It’s an unprecedented opinion,” he said.

Miami Seaquarium officials were not immediately available for comment.

Lolita was yanked from her family in Puget Sound in 1970 at around age four and has spent the past 46 years performing for tourists in Miami. She is a member of the Southern Resident killer whale population, which was listed as endangered in 2005. But that designation was not extended to Lolita until 2015, after PETA and other animal welfare groups successfully sued the federal government to include her in the listing.

That ruling, which gave Lolita endangered species protection, brought new hope to thousands of people around the world who have fought to return her to her native waters and perhaps reunite her with her family.

Why? Because the ESA prohibits the “take” of an endangered animal. “Take” typically means killing or capturing an animal, but it also includes harassment and harm. Under the ESA, “harassment” is defined as any act that might damage wildlife by “annoying it to such an extent as to significantly disrupt normal behavioral patterns.”

The lawsuit alleged that Lolita is being harassed and harmed at the Miami Seaquarium and asked the judge to order the orca’s retirement to a netted-off sea pen.

Animal rights groups argued that the size of Lolita’s tank, at 80 feet long and 20 feet deep, constitutes harassment because “Lolita is unable to engage in natural behaviors,” Goodman said. “She can’t swim any meaningful distance, and she can’t dive, because her tank at its deepest point is the same length as her body.”

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The lawsuit also alleged Lolita is being harassed by the Pacific white-sided dolphins she shares her tank with. Under the Animal Welfare Act, captive marine mammals must have “at least one compatible animal of the same or biologically related species…unless it is not in the best interest of the marine mammal’s health or well-being.” The dolphins routinely rake Lolita’s skin with their teeth and engage in inappropriate sexual behavior with her, causing distress, the plaintiffs said.

But Ungaro ruled that “harm” and “harassment” under the ESA are different for captive endangered animals like Lolita from what they are for those in the wild.

“A licensed exhibitor ‘takes’ a captive animal in violation of the ESA…only when its conduct gravely threatens or has the potential to gravely threaten the animal’s survival,” Ungaro wrote. Otherwise, she said, AWA regulations take precedent over the ESA, adding that the U.S. Department of Agriculture, which oversees the AWA, has found the Miami Seaquarium to be in compliance with the law.

“There is simply no evidence…that these conditions gravely threaten Lolita’s existence,” Ungaro wrote.

“It’s a somewhat tortured analysis,” Goodman said. People have been prosecuted for a take of wild marine mammals simply by feeding them, which doesn’t “gravely threaten their survival,” he added.

“The ESA provides greater protection than the AWA, and we believe that an animal can still be taken even in AWA-compliant conditions,” Goodman said, adding that plaintiffs will appeal the ruling.

“This decision puts Lolita in a catch-22,” said Orca Network Director Howard Garrett. “She has to be almost dead to show the court that she’s in grave danger. We have to double down on the park owners to do the only morally respectable thing and let her retire.”