Animal Rights Folks Go to Bat for an Orca

     SEATTLE (CN) – Animal-rights activists claim an orca is being held in an “inadequate tank” in the Miami Seaquarium. They sued the National Marine Fisheries Service for excluding captive killer whales from listing under the Endangered Species Act.



     The Animal Legal Defense Fund, People for the Ethical Treatment of Individuals and three individuals challenge the NMFS decision “to exclude from the listing of the Southern Resident killer whale population all captive members of that population and their progeny.”
     The federal complaint focuses on a whale named Lolita, who was captured more than 40 years ago, and has been held at the Miami Seaquarium. The activists claim Lolita is being “kept in an inadequate tank, without companions of her own species or adequate protection from the sun.”
     Orcas were listed as endangered in 2005, in part because the “capture of killer whales for public display during the 1970s likely depressed their population size and altered the population characteristics sufficiently to severely affect their reproduction and persistence,” according to the complaint.
     The plaintiffs say that if captive orcas were listed under the Endangered Species Act, the “take” prohibition that prevents harassing and harming the animals would force the aquarium to improve Lolita’s habitat.
     “When NMFS made its final decision to list the Southern Resident killer whale population as endangered, it excluded from the listing ‘[r]esident killer whales placed in captivity prior to listing or their captive born progeny,'” according to the complaint.
     “In its final listing decision, 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 plaintiffs say the Endangered Species Act “does not allow a wholesale exemption” for captive members of a listed species.
     “In addition, even the limited exception for wildlife held in captivity when the statute was enacted in 1973 does not apply where the holding of such wildlife is done in ‘the course of a commercial activity,'” the complaint states.
     The plaintiffs claim the Miami Seaquarium has made “tens of millions of dollars” from displaying of Lolita. They says that Orcas can live as long as 90 years in the wild, and that “Lolita has family members who are still living in the wild.”
     Plaintiff Patricia Sykes she worked for the aquarium when Lolita was captured from the wild in 1970.
     “Ms. Sykes personally observed Lolita endure great suffering caused by her capture and the unnatural living conditions in captivity,” the complaint states. “Ms. Sykes formed a strong emotional bond with Lolita and wants to do everything in her power to help her. Ms. Sykes can no longer bear to visit Lolita in her current conditions without suffering great aesthetic and emotional harm. Ms. Sykes is aesthetically and emotionally injured by having to make the choice between paying MSQ the cost of admission to visit Lolita in these conditions and refraining from visiting Lolita, with whom she has formed a strong emotional bond. She is also harmed by NMFS’s decision to exclude Lolita from the endangered listing of the Southern Resident killer whale population, which allows MSQ to keep Lolita 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), if Lolita were included as listed wildlife.”
     Plaintiff Shelby Proie says she has “observed and photographed Lolita many times in captivity” and has “formed a strong emotional bond with Lolita.”
     “Ms. Proie’s educational and aesthetic interests would be redressed if the captive members of the species were included in the endangered listing of the Southern Resident killer whale population. This would provide the wild population added protection by ensuring that the captive members are preserved and protected for the future research, educational, biological, management and other benefits they provide the wild population. It would also ensure that Lolita could no longer be ‘taken’ in violation of the statute, and thus ensure that she would be treated humanely and possibly returned to the wild. If Lolita was protected by the ESA, treated humanely, and her living conditions improved accordingly, Ms. Proie would visit and observe her as often as possible,” the complaint states.
     The plaintiffs say the National Marine Fisheries Service and Acting Secretary of Commerce Rebecca Blank violated the Administrative Procedure Act by excluding the captive Southern Resident killer whale population. They seek judgment setting aside that part of the final listing decision.
     They are represented by Brian Knutsen with Smith & Lowney.

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