Lolita the Orca’s Plight Fails to Sway 11th Circuit

(CN) - Environmentalists worried about an orca named Lolita at a Miami aquarium failed to challenge the park's federal license renewal in the 11th Circuit.

"Only Congress, not this court, possesses the power to limit the agency's discretion and demand annual, substantive compliance with animal welfare standards," Judge Susan Black wrote for a three-judge panel.

The Orca Network, Animal Legal Defense Fund and others had appealed to the Atlanta-based court over Lolita's treatment at the Seaquarium in Miami.

Measuring 20-feet long and 7,000 pounds, Lolita was captured from the wild between the ages of 3 and 6, and has lived at the Seaquarium for 45 years.

Every day, she performs in a show called the "Killer Whale and Dolphin show." Her tank measures 80 feet by 60 feet, but a concrete platform in the middle of the tank for trainers to stand upon creates an obstacle so that Lolita can only swim in an area of 80 feet by 35 feet unobstructed.

By law, her tank must be at least two times the average adult length of an orca.

Calling Lolita's tank the smallest orca tank in North America, the ALDF likens it to "a bathtub" that moreover offers no shelter from the sun.

The aquarium applies zinc oxide to her skin as sunscreen, but no one knows the potential long-term health effects of this practice.

Lolita shares her tank with Pacific white-sided dolphins, but has not interacted with another orca since 1980 when her companion of nine years, Hugo, died from continually ramming his head into the side of the tank until he suffered a brain aneurism.

Every year, Seaquarium must renew its Animal Welfare Act (AWA) license with the U.S. Department of Agriculture (USDA). Before the expiration of its license in 2012, the ALDF sent a letter to the USDA asserting that Lolita's living conditions are inhumane, and Seaquarium's license should not be renewed.

The USDA responded that it found Seaquarium in "compliance with the regulations and standards," and renewed the facility's license to keep and exhibit Lolita. It did not conduct an inspection of Lolita's living conditions based on the allegations in ALDF's letter.

The ALDF sued in Miami, seeking a court order to set aside the USDA's renewal of Sequarium's license, based on the theory that AWA animal welfare inspection laws should apply both to new licensees and license renewals.

In granting the feds summary judgment, the lower court found that the USDA complied with its license-renewal process, which requires just a certification of compliance, payment of an annual fee, and submission of an annual report detailing the number of animals exhibited in the prior year.

The USDA conducts a random, unannounced inspection program, but not annual inspections, a system the agency claims is more likely to catch violators.

Judge Black with the 11th Circuit said Monday it is up to Congress to change the agency's regulations regarding renewal requirements.

"The plain language of the statute shows Congress has not directly spoken to whether USDA can renew a license despite knowing that an exhibitor is noncompliant with animal welfare standards on the anniversary of the day USDA originally issued the license," Black wrote. "The terms 'issue' and 'renew' have distinct meanings; § 2149's due process protections would be meaningless if we adopted ALDF's interpretation; and Congress's silence regarding renewal is controlling."

Purely administrative renewal allows the USDA to marshal its limited resources and make its own determination how to spend those resources, the court found.

"USDA could not annually inspect the facilities of every zoo, aquarium or other exhibitor across the country, or initiate license termination proceedings for every violation, no matter how minor," Black said.

Despite sympathy for "the plight of Lolita and other animals exhibited across this country, we cannot say USDA violated the AWA by renewing Seaquarium's license through its purely administrative scheme," the ruling concludes.

In February 2015, plaintiff animal rights organizations won protection for Lolita under the Endangered Species Act, as a former member of the Southern Resident orca pod off the coast of Washington state, which is classified as protected.

In the wild, orcas live with their mothers all their lives. Lolita's mother still lives with the Southern Resident pod, and activists plan to reunite Lolita with her if they can win Lolita's "retirement" from Seaquarium.

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