Lolita the Orca Deemed Endangered, but Not Free

WASHINGTON (CN) - An orca known as Lolita, captive for 40 years, is now considered endangered under the Endangered Species Act (ESA), but obstacles remain in freeing her. The Southern Resident distinct population segment of orcas, of which Lolita is a member, was determined endangered under the ESA in 2005, long after Lolita was captured. That listing determination exempted captive whales from the designation.

Now, ten years later, the National Marine Fisheries Service (NMFS) has reversed that exemption, but the reversal does not carry an automatic "get out of jail free" card for Lolita, who has been in an orca pool at Miami Seaquarium amusement park since 1970.

In 2013, the Animal Legal Defense Fund (ALDF), the Orca Network and the People for the Ethical Treatment of Animals (PETA) petitioned the NMFS to remove the exemption for captive whales. The groups consider that the conditions under which Lolita is held captive violate the ESA's ban on harming protected animals because she is in a small tank that is open to the sun with no protection, and she is the only orca in the tank, according to the ALDF's reaction to Tuesday's determination.

Orcas, like other whales, are social animals. "Since Lolita's tankmate died after ramming his head into the side of their tank more than 30 years ago, Lolita has been the only orca at the Miami Seaquarium. She has no opportunity to socialize or interact with other members of her species, which is excruciating for such a social and intelligent animal," PETA noted in its statement.

While the NMFS now agrees that captive animals "cannot be assigned separate legal status from their wild counterparts," the agency does not consider the issue of releasing Lolita into the wild to be related to this Endangered Species Act action. Instead, the agency is focusing its efforts on the protection of the wild Southern Resident orcas, which number fewer than 80 remaining individuals.

The groups that have fought for Lolita's freedom are organizing to pressure Seaquarium to retire Lolita and release her to a sanctuary in her "home" waters off Washington's San Juan Islands, and, if possible, eventually back to her family pod, the ALDF said.

The NMFS noted that any plan to release Lolita would require a permit and would undergo "rigorous scientific review" due to concerns regarding disease transmission, the possible difficulty of captive animals to find food in the wild, and the problem of captive behaviors affecting the wild population.

"This orca has been trapped for decades in the tiniest orca tank in North America and, for the past 10 years, deprived of the protection from harm and harassment offered by the Endangered Species Act," PETA's general counsel Jeffrey Kerr was quoted as saying in the group's reaction statement. "Now that this protection is rightfully hers, PETA will continue to push for her release into the sea, where she belongs."

The final determination is effective May 11.

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