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Forward for Lolita

Some ideas on how to proceed for Lolita

The government must take Lolita back.

As a professional urban planner, I have been wondering if the concept of government takings through eminent domain could be used as the mechanism to free Lolita, assuming there was political support to do so. Government takings laws have been upheld as constitutional when there is a reasonable relationship between the taking of private property (through government compensation to the owner) and the protection of public health, safety and welfare. The nexus between the taking and the public benefit derived from the taking is the key.

The current five-year review of the Southern Resident Killer Whales (SRKW) status under the Endangered Species Act (ESA) (Puget Sound Killer Whale Endangered Species Act Listing 5-Year Review) may provide a framework for pursuing such action. (Comments should be submitted by July 6, 2010.) This review is premised on the question: Have there been any new studies since November 2005 based on scientific or commercial data? Have there have been any new studies regarding the ill effects of captivity on cetaceans?

Can it be reasonably argued using scientific data that the act of captivity for commercial purposes further endangers captive cetaceans, especially for a 40+ year-old, native-born, female member of a small biological group with unique culture and whose very capture for commercial purposes was a contributing cause of the species becoming endangered in the first place?

The circumstances involving Lolita's unique plight justify a special exception for the government to exercise its police power of eminent domain for the greater public good. There was no public benefit realized when the government extended grandfather rights under the ESA to Lolita's owner in 2005. Five years have passed and the opportunity to effect change is diminished with each passing year for an aging SRKW living in utterly unreasonable living conditions. Lolita is dying a slow, unnatural death and the government must intervene to save her life, which is the purpose of the ESA.

SRKWs are a highly advanced, intelligent species with unique culture. A single taking could effectively expand the population of the species by more than one percent. Her re-introduction into native habitat could yield enhanced breeding opportunities and further scientific knowledge and research whereas the status quo merely enriches the property owner for strictly commercial purposes which have no substantial benefit to the public.

The ESA prohibits unauthorized possession of an endangered species and provides authority to acquire land for conservation of endangered species. Considering Lolita's unique history and plight, the ESA should authorize a one-time exception to the grandfather clause through a taking to acquire an actual member of the species and return her to her native habitat and pod.

And from an attorney and former judge in Florida: "What would be the best nexus to justify the government's use of eminent domain and public funds to secure Lolita's release?"

He suggested that public university research regarding her translocation and reintroduction to native habitat would arguably provide a direct public benefit to justify such an unprecedented taking. Of course there would be many other public benefits but his particular suggestion makes the direct connection with public education and research. (In a Facebook comment, Angela Percival notes that: There would be enormous scientific value from a Tokitae release; perhaps the most revealing evidence of orca intelligence of all time would result. Its potential significance far outweighs any value she has as an entertainer. If it doesn't happen, a unique opportunity to understand these animals will be lost forever.)

He also suggested an alternate strategy whereby the Legislative Branch of the federal government could pass a law which would effectively undo the grandfather provisions extended to her owners by the Executive Branch when SRKWs were first listed as an endangered species.

Davis Hyslop

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