Orca Whale “Lolita’s” Condition Shrouded in Mystery: How to Prevent This Situation in the Future

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For over a week the Miami Seaquarium has been tight-lipped about why they pulled their star performing orca from display, only reporting that the whale has had a flare up of the chronic toothache that has bothered her since 1994.  Observers have reported odd comings and goings, including the arrival of a helicopter carrying four individuals with backpacks on Sunday (complete story can be found at the Orca Project).  When inquiries are made to the amusement park, concerned individuals and media alike are given the same message – “Lolita has a toothache, is being treated with antibiotics, and is eating normally”).  Yet visitors are told that the tank is undergoing repairs by some employees, and some visitors have seen or heard the whale working with trainers.  All this has caused upset and frustration to those who are concerned with the welfare of captive orcas, and the attitude of indifference from the staff at the theme park has put a match to the short fuse of tolerance exhibited to this point by activists.
The Seaquarium’s petulant meta-message is that they consider the orca  to be their property and that they don’t have to say or do anything they don’t want to;  but like a child who can’t resist poking a hornet’s nest they might just find out that their handling of this situation is about to cause them real difficulty. They have flipped a virtual finger at the world, and certainly no one appreciates that little gesture.
To date, people have lit candles, protested, had call-ins, and held community rallies, all in an effort to get some accurate information – to no avail – and are now looking to legal means to force compliance from the Seaquarium.
The best bet?  A simple modification of a tiny sentence buried in a government document will do the trick to force compliance and open communication. In 2005,  “Lolita” was deprived of the status of ‘endangered species’ when the rest of her family was granted it, a status which would force the Miami Seaquarium to obtain permits before transporting or breeding her, and would have allowed for more thorough inspections.  A handful of public employees made this decision, no doubt with input from the amusement parks that exhibit orcas:
69910 Federal Register / Vol. 70, No. 222 / Friday, November 18, 2005 / Rules and Regulations
“Based on the best scientific and commercial data available, the comments received, and after taking into account efforts being made to protect Southern Resident killer whales, we (NOAA’s National Marine Fisheries Service (NMFS)) are listing the Southern Resident DPS as endangered. The Southern Resident killer whale DPS [Distinct Population Segment] will be listed under the ESA [Endangered Species Act] as endangered as of the effective date of this rule.
The Southern Resident killer whale DPS
does not include killer whales from J, K
or L pod placed in captivity prior to
listing, nor does it include their captive
born progeny.”

(“Lolita” is the only whale to which this applies).
The standards for the Animal Welfare Act are set by Congressional legislation; responsibility for a specific whale or whales in general can be changed only via legislation. Because “Lolita” was captured prior to the enactment of the marine mammal protection act, she is also deprived of the rights given to all free roaming marine mammals today.  But here is the good news, these laws can be changed by an act of Congress – just another short sentence or two amending the Endangered Species Act will do the trick, and this is done frequently and easily.
It is my hope that someone will organize a campaign to lobby Congress, but in the meantime call or write your members of Congress and asked to have this situation fixed.  No matter how you feel about keeping whales in captivity, the idea that a few corporations could influence our laws is just plain un-American.

Creative Commons Photo

More information on the specific laws:
Quick Summary of the Endangered Species Act (ESA) Cynthia Hodges, J.D., LL.M., M.A. (2010)
With certain exceptions, the ESA protects endangered and threatened species from extinction by prohibiting the importing, exporting, taking, possessing, selling, and transporting of such species. It also prohibits the destruction of their critical habitat. ESA provisions are enforced through the use of citizen suits, imprisonment, fines, and forfeiture.
Detailed Discussion of the Laws Affecting Zoos Kali S. Grech
The laws currently in place to protect zoo animals have proved inadequate thus far. While the AWA does purport to protect the welfare of animals, only minimum standards exist, and even then, huge classes of animals are exempted from the provisions. Other statutes regulating transport and documentation of zoo animals apply only to animals specifically listed. With regard to the existing statutes, ineffective enforcement, resource shortages, and the lack of citizen suit provisions to allow concerned parties to argue on behalf of zoo animal welfare hinder the process. Voluntary standards are admirable, but not required. And in light of such exposes as “Animal Underworld,” all laws, regulations, and voluntary standards seem to be ineffective in truly protecting zoo animals. Unfortunately, under the existing circumstances, this means that zoo animals suffer simply so patrons can observe them at the zoo, which is an unfair lifetime sentence for any innocent, sentient being.
Overview of Laws Concerning Orcas in Captivity Lauren Tierney (2010)
The issue remains not of the whether facilities and organizations are following the law, but of the adequacy of the laws themselves. The minimum requirements of an orca enclosure are that it must be twice the length of the orca housed within.  Is this an adequate standard for an animal that is capable of swimming over 100 miles in a single day?  One whale expert claims that building a tank the size of Rhode Island would not be adequate to house a mammal capable of swimming one hundred miles a day (See Tilikum’s Law).  The depth of the enclosure must also be only that of half the length of the whale.  Is this an adequate standard for a whale capable of diving hundreds of feet below the surface and typically spends most of its time under the surface of the water?  It is difficult to file and win a case against a facility who is legally meeting all of the required standards.
Brief Summaries of Federal Animal Protection Statutes
Marine Mammal Protection Act of 1972,
16 U.S.C. §§ 1361-1423h

The 1994 statute also amended 16 U.S.C. § 1374 to provide that the Secretary
of Commerce may issue permits “to take or import a marine mammal for the purpose
of public display only to a person which the Secretary determines … is registered or
holds a license issued under” the Animal Welfare Act. The effect of this provision
apparently is that the Department of Agriculture rather than the National Marine
Fisheries Service is authorized to regulate such marine mammals once they are held
in captivity. 108 Stat. 537 (1994).21

(21 This provision was opposed by animal rights advocates, who took the position that
“NMFS has years of experience in monitoring this act, as well as other marine mammal
issues. In contrast, the USDA has lacked both the commitment and ability to protect animals
under the federal Animal Welfare Act.” Animal Legal Defense Fund, The Animals’
Advocate (spring 1994) at 2.)

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