Lolita Might Have to Stay in Miami Seaquarium, but the Battle for Her Freedom is Hardly Over.
In 1970, at the peak of the captures of free orcas in Washington and British Columbia for entertainment revenue worldwide, a young female whale was wrapped in nets and hauled onto a flatbed truck, to be delivered to a dolphin park in Miami called the Seaquarium.
She was traumatized and wouldn’t eat for weeks, but her new owners named her Lolita and taught her to perform routines with a young male they had named Hugo, who had been caught in Puget Sound 18 months earlier. Hugo repeatedly bashed his head against the walls of the tank and died of a brain aneurysm in 1980. Unbelievably, Lolita is still there, doing two shows a day and swimming in circles all day and all night, or doing nothing at all.
Fighting for Lolita
In February, 2012, a legal team including attorneys from People for the Ethical Treatment of Animals (PETA) and Animal Legal Defense Fund (ALDF) filed a request to the U.S. Department of Agriculture (USDA) that they not renew Seaquarium’s annual license despite multiple violations of the Animal Welfare Act (AWA). When the USDA renewed Seaquarium’s license anyway, we (I joined as one of seven plaintiffs) filed a suit later that year. The complaint stipulated that Lolita should be relocated to a seapen as described in the Orca Network plan first made public in 1995.
Lolita’s team responded adroitly to every legal barrage, but in March 2014 the USDA case was dismissed by a Florida federal judge, confirming that renewal does not depend upon compliance. That is, the USDA can renew licenses even if the conditions violate the AWA. Courthouse News said: “Judge Lenard wrote that while the USDA ensures compliance with the AWA prior to issuing a license and through enforcement proceedings, the agency is not required to ensure the same compliance prior to renewals.”
In July 2014, Lolita’s team appealed in a 104-page document. On June 17, 2015 our appeal was denied but with an even more explicit statement from the Court of Appeals that the Seaquarium need not be in compliance with the AWA to continue being licensed: “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, and: ”… Congress has not directly spoken to whether USDA can renew a license despite knowing that an exhibitor is noncompliant with animal welfare standards…”
At first glance, it looked like a major defeat in the campaign to retire Lolita, but it’s hardly the end of the road for our legal efforts for Lolita. This case against the USDA was part of a larger strategy.
The first legal volley in the strategy to retire Lolita was fired in October 2011, aimed straight at SeaWorld. I joined with PETA, Ric O’Barry, Ingrid Visser, Carol Ray and Samantha Berg as “next friends” of five wild-captured orcas held at SeaWorld in a suit accusing the company of violating the 13th Amendment against involuntary servitude. The case was dismissed in February 2012, but only after widespread media coverage introduced the public to the idea that captive orcas suffer like humans from domination and confinement.
It all leads up to a forthcoming case against the Seaquarium itself for violations of the Endangered Species Act (ESA) that will be filed later this month. The 60-day notice of intent to sue was filed the day Lolita became listed under the ESA after over three years of legal wrangling with the National Oceanographic and Atmospheric Administration. Orca Network, myself and three others were named in that petition, filed by PETA and ALDF on November 17, 2011. We can expect the case against the Seaquarium to include the violations of AWA provisions intended to prevent harm, which is expressly prohibited under the ESA.
There is yet another track to the legal strategy. Upon a request from ALDF, in July, 2014 the Occupational Safety and Health Administration fined the Seaquarium $7,000 and issued citations to prohibit trainers from getting in the water with Lolita during performances. The Seaquarium appealed the citation, so a hearing was scheduled for August 2015. OSHA hired John Hargrove as their expert witness to testify against the park. The hearing would have exposed decades of veterinary and other records to public scrutiny, but the Seaquarium dropped their appeal on June 1 and agreed to keep trainers out of the water. This was the first legal action to have a real effect on the Seaquarium, but stay tuned for more.
The Spotting of a Rare White Whale Is Good News for the Species’ Comeback. Migaloo, a famous humpback that frequents Australian waters, is most likely the same animal just seen off New Zealand’s coast.
A rare white whale swimming between New Zealand’s North and South Islands put the exclamation point on the country’s annual whale survey this week, with researchers recording more of the marine mammals in the region than ever before.
The white humpback was seen traveling through Cook Strait—the channel between the two islands—with another whale last week as researchers were wrapping up their annual whale count survey.
Ted Perano, one of six ex-whalers on the New Zealand Department of Conservation’s survey team, was the first to spot the near mythical creature from a lookout point near the Tory Channel entrance.
A survey team on a boat reported to the location to get an accurate identification on the whale; then they realized they had pulled up along a white humpback.
“I thought, 'Wow that whale is white, that is amazing!' ” said the team’s boat skipper, John Gibbs, in a statement.
The whale appears to resemble Australia’s famous white whale, nicknamed “Migaloo” (aboriginal for “white fella”), which has been spotted almost every year since 1991 off the Queensland coast.
The whale spotted off New Zealand had markings and a distinctive dorsal fin shape that matched those found on Migaloo.
Nadine Bott, the humpback whale survey leader for the Department of Conservation, said white humpbacks are extremely rare; only four have ever been recorded in the world.
The other three are one spotted off Norway in 2012 and Migaloo’s two calves—one of which has been nicknamed “MJ” for Migaloo Jr.
The team was able to obtain a biopsy sample from the whale, which should let the scientists compare its DNA to Migaloo’s.
"We're 99 percent certain it's Migaloo,” Bott said.
If it is the same whale, fears of Migaloo’s possible skin cancer issues could be put to rest. Spots reported on Migaloo’s dorsal fin last year were not present on the whale spotted in New Zealand, and the whale’s yellow tint most likely was due to an accumulation of marine algae on its body, researchers said.
The biopsy results should also give scientists a final answer on whether Migaloo—assuming the New Zealand whale is the Australian whale—is an albino or just dealing with a color morph, Bott said.
Aside from the rare sighting, New Zealand’s whale survey included good news for all humpback whales.
So, Why Should You Care? This year’s four-week survey tallied the highest count of humpback whales, with 122 spotted crossing the strait—passing the previous high tally of 106 whales recorded in 2012.
Researchers began counting the whales in 2004 to determine whether New Zealand’s migrating humpback whale population had recovered since commercial whaling was halted in 1964. Bott said the higher survey totals are a promising indication that humpbacks are increasing in the country’s waters.
“It is possible that we are now getting an ‘overflow’ of whales from east Australia—as suggested by seeing Migaloo—which would explain the recent increases, as previously, the New Zealand population was growing at a slower rate,” Bott said. The small population gain, 50 years in the making thanks to whaling protections, “demonstrates the very slow rate of recovery from a long-lived and slow-breeding animal from overharvesting,” Bott said.
In 1970, at the peak of the captures of free orcas in Washington and British Columbia for entertainment revenue worldwide, a young female whale was wrapped in nets and hauled onto a flatbed truck, to be delivered to a dolphin park in Miami called the Seaquarium.
She was traumatized and wouldn’t eat for weeks, but her new owners named her Lolita and taught her to perform routines with a young male they had named Hugo, who had been caught in Puget Sound 18 months earlier. Hugo repeatedly bashed his head against the walls of the tank and died of a brain aneurysm in 1980. Unbelievably, Lolita is still there, doing two shows a day and swimming in circles all day and all night, or doing nothing at all.
Fighting for Lolita
In February, 2012, a legal team including attorneys from People for the Ethical Treatment of Animals (PETA) and Animal Legal Defense Fund (ALDF) filed a request to the U.S. Department of Agriculture (USDA) that they not renew Seaquarium’s annual license despite multiple violations of the Animal Welfare Act (AWA). When the USDA renewed Seaquarium’s license anyway, we (I joined as one of seven plaintiffs) filed a suit later that year. The complaint stipulated that Lolita should be relocated to a seapen as described in the Orca Network plan first made public in 1995.
Lolita’s team responded adroitly to every legal barrage, but in March 2014 the USDA case was dismissed by a Florida federal judge, confirming that renewal does not depend upon compliance. That is, the USDA can renew licenses even if the conditions violate the AWA. Courthouse News said: “Judge Lenard wrote that while the USDA ensures compliance with the AWA prior to issuing a license and through enforcement proceedings, the agency is not required to ensure the same compliance prior to renewals.”
In July 2014, Lolita’s team appealed in a 104-page document. On June 17, 2015 our appeal was denied but with an even more explicit statement from the Court of Appeals that the Seaquarium need not be in compliance with the AWA to continue being licensed: “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, and: ”… Congress has not directly spoken to whether USDA can renew a license despite knowing that an exhibitor is noncompliant with animal welfare standards…”
At first glance, it looked like a major defeat in the campaign to retire Lolita, but it’s hardly the end of the road for our legal efforts for Lolita. This case against the USDA was part of a larger strategy.
The first legal volley in the strategy to retire Lolita was fired in October 2011, aimed straight at SeaWorld. I joined with PETA, Ric O’Barry, Ingrid Visser, Carol Ray and Samantha Berg as “next friends” of five wild-captured orcas held at SeaWorld in a suit accusing the company of violating the 13th Amendment against involuntary servitude. The case was dismissed in February 2012, but only after widespread media coverage introduced the public to the idea that captive orcas suffer like humans from domination and confinement.
It all leads up to a forthcoming case against the Seaquarium itself for violations of the Endangered Species Act (ESA) that will be filed later this month. The 60-day notice of intent to sue was filed the day Lolita became listed under the ESA after over three years of legal wrangling with the National Oceanographic and Atmospheric Administration. Orca Network, myself and three others were named in that petition, filed by PETA and ALDF on November 17, 2011. We can expect the case against the Seaquarium to include the violations of AWA provisions intended to prevent harm, which is expressly prohibited under the ESA.
There is yet another track to the legal strategy. Upon a request from ALDF, in July, 2014 the Occupational Safety and Health Administration fined the Seaquarium $7,000 and issued citations to prohibit trainers from getting in the water with Lolita during performances. The Seaquarium appealed the citation, so a hearing was scheduled for August 2015. OSHA hired John Hargrove as their expert witness to testify against the park. The hearing would have exposed decades of veterinary and other records to public scrutiny, but the Seaquarium dropped their appeal on June 1 and agreed to keep trainers out of the water. This was the first legal action to have a real effect on the Seaquarium, but stay tuned for more.
The Spotting of a Rare White Whale Is Good News for the Species’ Comeback. Migaloo, a famous humpback that frequents Australian waters, is most likely the same animal just seen off New Zealand’s coast.
The white humpback was seen traveling through Cook Strait—the channel between the two islands—with another whale last week as researchers were wrapping up their annual whale count survey.
Ted Perano, one of six ex-whalers on the New Zealand Department of Conservation’s survey team, was the first to spot the near mythical creature from a lookout point near the Tory Channel entrance.
A survey team on a boat reported to the location to get an accurate identification on the whale; then they realized they had pulled up along a white humpback.
“I thought, 'Wow that whale is white, that is amazing!' ” said the team’s boat skipper, John Gibbs, in a statement.
The whale appears to resemble Australia’s famous white whale, nicknamed “Migaloo” (aboriginal for “white fella”), which has been spotted almost every year since 1991 off the Queensland coast.
The whale spotted off New Zealand had markings and a distinctive dorsal fin shape that matched those found on Migaloo.
Nadine Bott, the humpback whale survey leader for the Department of Conservation, said white humpbacks are extremely rare; only four have ever been recorded in the world.
The other three are one spotted off Norway in 2012 and Migaloo’s two calves—one of which has been nicknamed “MJ” for Migaloo Jr.
The team was able to obtain a biopsy sample from the whale, which should let the scientists compare its DNA to Migaloo’s.
"We're 99 percent certain it's Migaloo,” Bott said.
If it is the same whale, fears of Migaloo’s possible skin cancer issues could be put to rest. Spots reported on Migaloo’s dorsal fin last year were not present on the whale spotted in New Zealand, and the whale’s yellow tint most likely was due to an accumulation of marine algae on its body, researchers said.
The biopsy results should also give scientists a final answer on whether Migaloo—assuming the New Zealand whale is the Australian whale—is an albino or just dealing with a color morph, Bott said.
Aside from the rare sighting, New Zealand’s whale survey included good news for all humpback whales.
So, Why Should You Care? This year’s four-week survey tallied the highest count of humpback whales, with 122 spotted crossing the strait—passing the previous high tally of 106 whales recorded in 2012.
Researchers began counting the whales in 2004 to determine whether New Zealand’s migrating humpback whale population had recovered since commercial whaling was halted in 1964. Bott said the higher survey totals are a promising indication that humpbacks are increasing in the country’s waters.
“It is possible that we are now getting an ‘overflow’ of whales from east Australia—as suggested by seeing Migaloo—which would explain the recent increases, as previously, the New Zealand population was growing at a slower rate,” Bott said. The small population gain, 50 years in the making thanks to whaling protections, “demonstrates the very slow rate of recovery from a long-lived and slow-breeding animal from overharvesting,” Bott said.
