A Miami judge recently denied relief to Lolita, the sole orca at the Seaquarium, by creating out of whole cloth a double standard for endangered animals like Lolita who are held in captivity. As a result, Lolita will remain in the smallest orca tank in North America without the company of a single other orca.
The Endangered Species Act makes it illegal to harm, harass or wound Lolita. This broad ban includes a prohibition on significantly disrupting normal behavior patterns. Congress and the Supreme Court have stressed that it should be interpreted as broadly as possible, even to extend to seemingly harmless activities like bird watching if they might disturb the protected species.
It is beyond dispute that the Seaquarium’s confinement of Lolita disrupts her normal behavior patterns.
Orcas are highly social animals who stay with their mothers for life. Lolita was ripped from her family as a baby.
She hasn’t seen another orca since 1980, when her companion died after ramming his head into the tank, believed by some to be an act of suicide.
Still, Lolita reportedly continues to use vocalizations known only to her pod. When played a recording of her pod’s calls, she responded and returned the calls.
Wild orcas dive hundreds of feet and travel up to 100 miles every day. The Seaquarium confines Lolita, who is 20 feet long, to a tank that is just 20 feet at its deepest and 80 feet across at its widest, making it is impossible for her to dive even a few feet or to travel any meaningful distance.
But because she is in captivity, the judge ruled that Lolita isn’t entitled to the same level of protection that her wild family members are.
The decision flies in the face of the letter and the spirit of the Endangered Species Act, the most far-reaching conservation law ever enacted.
As the federal government has explained, the Endangered Species Act “does not allow captive animals to be assigned different legal status from their wild counterparts on the basis of their captive status.”
But now a federal judge has gone and done exactly that, given Lolita a different legal status than her wild family members based solely on the fact that she had the misfortune to be captured.
So, while fines are issued merely for flying drones over Lolita’s wild relatives, the Seaquarium has carte blanch to harm, harass and wound Lolita until she is at death’s door.
But all hope is not lost. Lolita’s advocates can appeal this senseless decision. She may yet have an opportunity to once again communicate with her pod and to see her mother, who is believed to still swim free.
Delcianna Winders is Harvard Law School’s Animal Law & Policy Fellow.
