Federal Government Sued Over Orca Lolita's Illegal Exemption From Endangered Species Act

Animal Legal Defense Fund, PETA Cite Government's Improper Conduct in Allowing Seaquarium to "Harm and Harass" Lone Orca for Profit

Update
May 30, 2012: The Animal Legal Defense Fund (ALDF) and PETA have appealed the recent dismissal of the groups' lawsuit against the National Marine Fisheries Service for wrongly excluding orca Lolita from the endangered listing of the Pacific Northwest's southern resident orcas. The case's dismissal was based solely on the timing of the filing of the lawsuit—in their federal appeal, ALDF and PETA contend that the government received the required notice of intent to sue and that the case was wrongfully dismissed. Read more...

May 2, 2012: Last night, the lawsuit brought by PETA, the Animal Legal Defense Fund, and three individuals against the National Marine Fisheries Service for violating the Endangered Species Act (ESA) and the Administrative Procedure Act by excluding Lolita from the ESA listing of the southern resident orca population without explanation was dismissed.

By excluding Lolita—at the Miami Seaquarium—from protection under the Endangered Species Act, the government is allowing her to be kept in a woefully inadequate tank, in which she has been without companions of her own species for more than 30 years and without adequate protection from the sun. While her protected endangered relatives are traveling up to 100 miles each day in their native waters of the Pacific Northwest, Lolita has spent more than four decades swimming in circles, forced to perform the same meaningless tricks in the smallest orca tank in North America, the orca equivalent of a concrete bathtub.

At the very least, Lolita deserves the same protection given to her family, which should include transferring her to a seaside sanctuary in her home waters and potentially releasing her back into her family pod, where her mother still thrives at more than 80 years of age. PETA and the Animal Legal Defense Fund will regroup and continue to work to secure for Lolita the legal protection that she deserves.

November 17, 2011

Miami — The Animal Legal Defense Fund (ALDF), PETA, and three individuals filed a lawsuit this morning against the National Marine Fisheries Service (NMFS) for violating the Administrative Procedure Act by excluding Lolita, a solitary orca who has been confined to a tiny concrete tank at the Miami Seaquarium for more than 40 years, from the Endangered Species Act (ESA). The ESA provides members of the wild Southern Resident orca population and other endangered animals with a host of protections, including protection against being harmed or harassed. Yet, despite being a member of the Southern Residents, Lolita has been denied all of these protections without any explanation by NMFS. The plaintiffs argue that NMFS’ regulatory exclusion from ESA listing of captive Southern Resident orcas is illegal. In the filing, the plaintiffs set out specific provisions of the ESA that expressly forbid such an exclusion.

"Lolita was torn from her family, has been exploited for every dollar Seaquarium can squeeze out of her, and finally betrayed by the government agency charged with protecting her, which simply ignored the law," says PETA’s general counsel Jeffrey S. Kerr. "This regulatory 'gift' to an industry notorious for making orcas' lives miserable is not only incredibly cruel but blatantly illegal."

“The government’s failure to provide Lolita with the protections enjoyed by the wild members of her pod has enabled the Miami Seaquarium to keep her in conditions that violate the Endangered Species Act,” explains ALDF’s director of litigation Carter Dillard. “Lolita must be granted the protections under federal law which she is rightfully due and which best ensure her survival and well-being, which—depending on her condition—could include transferring her to a sea pen in her home waters and releasing her back to her family pod.”

PETA and ALDF explain that NMFS listed Southern Resident orcas, who range off the coast of Washington State, as endangered in part because their capture for public display had depressed their numbers to dangerous levels. The ESA clearly prohibits the wholesale exemption of all captive members of a listed species.  And even where valid exemptions exist, they apply only where the holding of such animals "was not in the course of a commercial activity." The plaintiffs estimate that Seaquarium has made tens of millions of dollars by forcing Lolita to perform tricks over the past four decades.   

In the wild, orcas live in tight family units with bonds that may last a lifetime. At Seaquarium, Lolita swims endless circles in a small, barren tank that does not comply with USDA regulations. This highly intelligent and social animal has been without an orca companion since 1980.

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