July 18, 2016: Judge unseals expert witness reports.
On January 20, 2016, four expert witnesses chosen by the legal team handling our ESA case that was dismissed June 1 (see above), inspected the Seaquarium from early dawn until mid-afternoon. By way of court-ordered discovery and depositions these experts had access to medical records and behavior and training logs going back a decade or more.
These expert witness reports were released unexpectedly by the judge in the ESA case that is now on appeal. They are factual accounts of all the evidence gathered from the discovery, depositions and site inspections, and the opinions offered as to Lolita/Tokitae's physical and mental health are based on that evidence. It's important to add that these ailments are caused by her confinement in such a cramped space in those conditions for so long, and the constant harassment by the Pacific white-sided dolphins. Her eye problems were first diagnosed in the 1980s, only one tooth seems to be drilled, and the rest appear to be in good shape except for 2 or 3 that are broken but healthy, and her chronic medications are to treat low level infections and stress. If and when she is returned to her familiar home waters, the exercise and stimulation of natural seawater, and the therapeutic effects, will improve her health, and the emotional benefits of returning home and eventually communicating with her family are likely to bring her great relief, further improving her metabolic and cardiovascular health.
On August 8, 1970 nearly a hundred members of the Southern Resident Killer Whale Community were herded into Penn Cove on Whidbey Island. Five whales drowned, seven young whales were stolen from their families. Only one survives today. Her name is Lolita.
Every year on August 8th those who fight for her right to come home gather to honor her and those who lost their lives. This is just part of the day spent in honor of those whales 45 years later.
Penn Cove Orca Capture - 45th Anniversary Commemoration
The Marine Connection in the UK made a cordial outreach to the executive of Arle Capital, which ultimately owns Lolita:
Many dedicated efforts are underway and gaining strength daily to acheive the goal of returning Lolita to her home and family. These struggles are going on behind closed doors in the courts, at NOAA, in full public view at the front entrance to the Seaquarium, and in the determined hearts and minds of a wide array of Lolita supporters working hard to help this long-suffering orca. Click HERE for a summary of some of the forces now in motion to return Lolita to her native habitat.
You can support, and show your support, for returning Lolita to her home and family with a purchase of this beautiful T-shirt or tote bag, by visiting the Ecojoia web shop.
Two bird's eye views of Lolita from August 2, 2014 and September 6, 2014, under the midday Miami sun:
Some background: In the summer of 2011 a legal team began planning actions to help Lolita return to her native waters. Mostly from People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF), the team arrived at a multi-pronged approach. First, they focussed on the fact the Seaquarium whale tank violates multiple provisions of the Animal Welfare Act, administered by the Animal and Plant Health Inspection Service (APHIS) under the USDA. The Seaquarium receives an annual license to operate despite these violations, so "The Team" described for the court precisely how the regulations were violated, and assembled expert opinion to establish that the violations were likely causing Lolita to suffer. In early 2013 the license was re-issued as expected so in short order we sued the USDA for issuing the license to an unlawful facility. The case was dismissed on March 21, 2014 on the procedural grounds that the inspectors have the discretion to ignore the regulations written by Congress. On July 1, 2014 we appealed the dismissal to an appelate court, which hopefully will examine the violations and not just the right of the inspectors to ignore them. In a few months a date for that decision will be announced, but it is likely to be decided by early next year.
At the same time another case has been in the works, this one a petition to NOAA Fisheries to include Lolita as a member of the Southern Resident community. She was expressly excluded when the ESA determination for the Southern Residents was written in 2005. NOAA has now agreed to consider inlcuding Lolita as a member of an endangered population, and on January 24, 2014 NOAA proposed a rule to grant Lolita endangered status with her family. The comment period drew 19,190 comments, with the final determination expected in late January 2015.
Each of these efforts required vast pages of supportive literature, providing the courts a thorough education on the cultural, cognitive and emotional capacities of orcas, and the stresses seen in captive orcas.
In February 2012 PETA attorneys brought forth a case against SeaWorld based on the 13th Amendment, suing the corporation for enslaving five orcas held by SeaWorld, and once again establishing a prodigious body of legal literature on the highly developed natural history of orcas. The case was dismissed after informing much of the public that capture and forced servitude of orcas is much like slavery in humans, again with a considerable body of supportive literature placed into the public record.
Another legal track, conducted by ALDF, was to sue OSHA for not enforcing the same abatement requirements on the Seaquarium that are being imposed on SeaWorld, namely that trainers shouldn't get into the water with Lolita. OSHA agreed in late July, and fined the Seaquarium $7,000 while they were at it. The suit was written so that it applies only to showtimes, so that "husbandry" can be performed outside the shows, which may be important for Lolita's mental health simply for the companionship.
On July 2, 2014, the Seaquarium was bought by Palace Entertainment, owned by Parques Reunidos, which owns over 70 theme parks including Marineland, Antibes in France. On May 30 Orca Network wrote a letter to Fernando Eiroa, President and CEO of Palace Entertainment, asking him to consider Lolita's health and welfare, and the image of Palace Entertainment, in their decisions about Lolita's retirement. Palace Entertainment's actions toward Lolita will be very important to a great many people, and their image could suffer or could soar depending on whether they hinder or help her return home.
Below are some letters and petitions you can personalize with your message and send to Palace Entertainment to encourage them to provide assistance to Lolita's retirement:
In harmony with these legal actions, for several years now and with ever increasing frequency and determination, demonstrations and informational protests have rocked the entrance to the Seaquarium. A wide array of homemade and heartfelt signs, postcards and flyers are read by the occupants of every car that goes in the parking lot, so a lot of people are seeing Lolita in a whole new way as a result.
All of these factors are energizing each other in this post-Blackfish era of rejection of captivity for cetaceans. The legal efforts are likely to be at least partially resolved by early in 2015. We don't want to make any big predictions, but the signs are pointing to a possible breakthrough for Lolita early next year.
Please see Lolita's retirement plan at the link below, and for those who write articles or blogs, please consider this plan in your media. The issue now is not whether the science and precedents support this plan. If Lolita's future is ultimately decided by NOAA Fisheries, it will be a judgment call largely based on the answer to the question: Would Lolita be safer in the undersized display tank in Miami, or back in her home waters with human companionship and care?
Even if/when she is finally determined to be a member of her family under the ESA, if NOAA Fisheries believes her health or her family's health could be harmed by her return to her native waters they don't have to allow her to be retired. We have drafted some basic points to make here to clarify those issues:
3 essential points to make:
1. There is no significant risk to Lolita in any stage of Orca Network's proposal for Lolita's retirement in her native waters. a. Transport of orcas according to established protocols must be done professionally and cautiously, but is commonly done and has never resulted in serious health issues for orcas;
b. Immersion of captive marine mammals in their native waters is considered therapeutic in veterinary literature (“The general rule in maintaining marine mammals in captivity is to duplicate their natural environment as closely as possible.” –The Merck Veterinary Manual);
c. After her initial immersion Lolita is likely to explore the seapen environs, with heightened energy and gradually improved metabolic strength, as demonstrated by Keiko upon immersion in Icelandic waters;
d. Her ability to catch and eat wild fish is likely to resume in a matter of weeks or months, again as demonstrated by Keiko.
2. A thorough examination will be conducted by a team of veterinarians and pathologists prior to transport to detect any potential communicable diseases. Assuming there are none, there will be no significant risk to any members of the Southern Resident Community as a result of Lolita's return to her native waters.
Conclusion: there is minimal risk of harm to Lolita or her family involved in returning her to her home waters.
3. Remaining in captivity will likely result in continuing mental and physical stresses and health issues. a. Abundant evidence, including scientific publications, indicate that captivity increases mortality rates for orcas;
b. Due to her loneliness from living without the companionship of another orca for over three decades, and due to her exposure to the midday Miami sun, and the extremely small size of the tank that has been her only environs for over four decades, she is continually suffering as long as she remains in captivity;
c. Despite Lolita's unlikely good health at over 46 years of age, she is still subject to the adverse effects of captivity on her emotional, mental and physical health.
Conclusion: Remaining in captivity is likely to lead to real harm to Lolita, and given her relatively good health she is an excellent candidate for return to her native waters for retirement under human care in a seapen, and potentially for eventual full release.
Why retirement of an orca held captive for decades would be safe and beneficial.
The physical form and function of orcas and other odontocetes were adapted over 15 to 30 million years for long distance travel and acute awareness in vast and thriving ecosystems. Their intelligence developed over eons for lives in large, complex, extended families. Their brains, their cardiovascular systems, their senses, like echolocation, are all the result of millions of years of adaptations for life in marine environments as members of large societies.
Lolita's family is well known, her probable mother is still alive, and there is no reason to believe she and her family would not recognize one another. Other captive orcas whose families can't be located could be retired to bay pens that would provide comfortable, healthy surroundings. Captive born orcas, even if they don't have memories of the natural world, can be cared for in a bay pen and have access to that world. All these captives would gain strength and return to good health in natural seawater suroundings. There's no real risk involved in rescuing any of these captives.
First Olympic class ferry shares name with an orca November 13, 2012 (Watching Our Water Ways)
A female killer whale named Tokitae remains in an aquarium in Miami, but a future Washington state ferry will carry her name for years to come.
The Washington State Transportation Commission named two new ferries today, choosing Northwest Indian names. And both names — Tokitae and Samish — are associated with killer whales, said Howard Garrett of Orca Network, who attended the commission meeting. See the WDOT's news release (PDF 29 kb).
He says naming the ferry could indirectly help the cause of relocating Lolita/Tokitae, although the action carries no endorsement of any kind.
"It demonstrates an understanding and awareness of her predicament, and it honors her and her family" he said. "I think that goes a long way."
The marine circus industry has promoted gross misinformation to keep possession of their performing orcas.
Have you ever wondered?
Go HERE for a printable flyer to hand out at demonstrations or other gatherings, and HERE for a Lolita fact sheet for basic information about Lolita, the violations of the Animal Welfare Act, and who to contact to insist the Animal and Plant Health Inspection Service (APHIS) address these issues and compel the Miami Seaquarium to correct these infractions.
Click here for sample letters and contact information to ask APHIS administrators to look closely at the relevant sections of the Animal Welfare Act, and then inspect the Miami Seaquarium whale stadium and tank, to see the glaring discrepancies and violations of the Act.
Orca Network often gets questions like this one:
This morning I took the opportunity to read the proposal for Lolita's release and am very impressed by the quality of the document. I am left with the question of "what can an individual do at this time?" Letters to who? Money to who? Thanks...
Our short answer usually goes something like this:
There are many answers, mostly depending on where you are, what you do, who you know, how you communicate. In other words look for ways to tell Lolita's story and explain the retirement plan ...to bring her some relief.
The proposal to retire Lolita can be found HERE. The only legal leverage we know of to pry her out of there is by massive public demand that the Animal and Plant Health Inspection Service (APHIS) enforce the Animal Welfare Act (AWA). You can see the details, along with more background on her life, the infractions that need to be addressed at the Seaquarium, and who to write to HERE.
Hopefully the USDA will inspect and measure the concrete bowl where Lolita has lived the past 39 years and will find it unlawful under the Animal Welfare Act, and $1-2 million can be found to examine her, transport her to a bay pen along the west side of San Juan Island, and set up a care station with a freezer full of fish and professional care staff. It's all been done before and poses no real risk to her or to her family, but many may wonder what will happen then for Lolita.
After her return to her home waters, as she regains her strength and is led out on swims to experience her waters again, Lolita will be the focus of tremendous attention in the Pacific Northwest and far beyond. Of course security at the bay pen will prevent direct observations except by authorized personnel and media, but live webcam coverage and stories about her can be expected to abound locally, nationally and internationally.
When someone reads or sees a story about Lolita they will usually tend to care a little more about how she's doing. The reports will also tell about her family, L-25 and the L-12 subpod as well as all the Southern Resident orcas. People will learn about the orcas' long lifespans, lifetime bonding and no dispersal traditions. They'll hear about these orcas' selective diet - about 80% Chinook salmon and 15% chum - and the need to restore salmon habitat and reduce Chinook catches all along the Pacific coast to keep the orcas around. This alone justifies her return home.
Scientifically, we'll learn if Lolita's family bonds and memories are so strong that she will be able to travel, catch fish and socialize with her family, and we'll see the process of rebuilding the trust needed to do so. If she's not able to rejoin her family, the care station will always be there for her with food and companionship if needed.
Humans live according to their stories, and whales provide great inspiration for all ages to learn more and then act to protect and restore the natural world. When kids hear about Lolita and her retirement where she was raised decades ago, many will want to know more, and will do research and feel moved to write their views about orcas and create artwork about them, developing important language skills and learning how to do good science.
The benefits of retiring Lolita in the Salish Sea won't be easy to measure in dollars, but as a learning and sharing experience among the human community, and as a motivator toward better stewardship and protection of our precious marine environment, Lolita would be a priceless teacher for us all.
August 7th, 2009 - KING 5's Gary Chittim reports. This week in 1971, orca hunters rounded up dozens of killer whales in Puget Sound in a deadly capture operation. Several orcas died, several were sent off for profit to perform in theme parks. This notorious maritime moment was captured on tape by KING 5 and it eventually helped stop the hunts.
See recent photos of Lolita.
The Lolita Come Home Campaign is a major concern of Orca Network. Lolita, first called Tokitae, is the last surviving orca of 45 members of the Southern Resident community that were captured and delivered for display in marine parks between 1965 and 1973. At least 13 others were killed during captures. A young adult at about 40 years old, Lolita has been maintained at a Miami marine park since 1970. Only Corky at Sea World in San Diego, captured in 1969, has been in captivity longer. To read the entire history of the campaign to retire Lolita and allow her the opportunity to rejoin her family, see all the Free Lolita Updates since March, 1999.
Lolita listening to her family's calls Photo courtesy NBC
Go HERE for dozens of photos of Lolita
In 1970 a capture team using speedboats and airplanes and lobbing explosives forced the entire Southern Resident orca community into a narrow cove, where they corralled all 110 or so orcas. They chose the young ones to ship to marine parks around the world, and one was delivered to the Miami Seaquarium. First name "Tokitae", she was later given the name "Lolita," and against all odds she has survived these 37 years in a tiny tank that is illegal by the letter of the Animal Welfare Act. The USDA simply combines the width of the show tank with the length of the back tank to arrive at a legal measurement. Lolita's longevity in a tank is extraordinary even by orca standards. Studies have shown that orcas in captivity live much less than half their normal lifespan.
Working with activists around the globe, we've made a lot of progress toward convincing people nationwide and worldwide that it is simply wrong to confine large, family-bonded, long-lived and far-ranging whales to bathtub sized tanks. The deeper problem all along has been to convince people that orcas are capable of returning to their home habitat, IF they are returned to their families. Orcas are much stronger and far more advanced and capable than is generally understood. Their strength is partly due to their cultural bonds and family membership, and the durability of those memories. By returning Lolita to her family she could regain the strength that comes from rebuilding those lifelong family bonds.
While people the world over now understand that captivity is cruel and deadly for orcas, we still need to convince the scientific community and the public that Lolita can safely return to her home and family, in order to convince the owner of the Seaquarium and other decision-makers that Lolita can and must be returned to her family and natural habitat.
Lolita remains a member of her family of birth, the Southern Resident orca community, as demonstrated by her vocalizations that are identical with those her family uses today. She could be safely returned to her home waters to rejoin her family. Here are answers to the question "Can Lolita safely return home?" Much can also be learned from the dozens of rehabilitation and release projects that have been performed worldwide. Especially relevant is
this set of protocols designed by Ric O'Barry of One Voice.
Socially and biologically she is capable of gradual reintroduction to her pod. Lolita could be safely returned to her home waters, but objections to her return by the park's owner, apparently based on economic interest and a set of unfounded beliefs often heard from display industry employees, has so far prevented her return.
Washington State elected officials who support the proposal to return Lolita (Tokitae) to her native waters include: Gov. Gary Locke, Sen. Patty Murray, US Senator Maria Cantwell, US Rep. Rick Larsen, US Rep. Norm Dicks, US Rep. Jim McDermott, US Rep. Adam Smith, US Rep. Linda Smith, US Sen. Slade Gorton, ret., US Rep. Jack Metcalf, ret., Gov. Mike Lowry, ret., Sec. of State Ralph Munro, ret., State rep. Dave Anderson, ret., State Rep. Kelly Barlean, King County Executive Ron Sims, Seattle Mayor Norm Rice, ret., Island County Board of County Commissioners, San Juan County Board of County Commissioners
Organizations in support of the proposal to return Lolita (Tokitae) to her native waters include: Animal Rights Foundation of Florida, World Society for the Protection of Animals, the Dolphin Project, Humane Society of the United States, Earth Island Institute, People for Puget Sound, Progressive Animal Welfare Society, Zoocheck Canada, Whale and Dolphin Conservation Society of the UK, No Whales in Captivity (Canada), In Defense of Animals, European Cetacean Organisation, Northwest Aquatic and Marine Educators, Orcalab and the Center for Whale Research.
The primary goal of the Lolita Come Home Project is to move Lolita from her present location at Miami Seaquarium to a rehabilitation/retirement facility in an ocean water seapen in Washington State, where she can retire from show business while still receiving the care of humans for her health and safety.
A secondary goal is to reacclimatize Lolita to her native habitat with open water "walks", so she can return to a healthy physical condition and metabolic strength, similar to that of her free-ranging family members.
A third goal of this project is to facilitate Lolita's reintroduction to her family pod members. This will be done acoustically first, visually second, and socially last. It will be up to Lolita to decide whether she wishes to remain in the social company of her family or return to human care.
Act now to return Lolita to her home and family. Send a letter (prewritten by us) to the USDA to persuade them to uphold the law and declare the whale tank at the Seaquarium illegal!
When she looks into your eyes, you can see that Lolita has blue eyes. Photo by Sean Jacobs, September, 2004
Rattle the Cage Productions has produced a brand new website in the format of the other Seaquarium site, called Miami SeaPrison, dedicated to Arthur Hertz and the Miami Seaquarium. Check it out. You'll love it and hate it.
This documentary tells Lolita's story like none other. It's called Lolita: Slave to Entertainment, produced and written by Tim Gorski and narrated by Valerie Silidker, both of South Florida. This amazing one-hour film follows Lolita's life story, from her capture in Penn Cove in 1970 to her dismal situation today at the Miami Seaquarium, and the efforts by many individuals and organizations to bring her back home. There is new footage of her capture, interviews with those present at the time, and some great animated graphics to illustrate the event.
The documentary features "Flipper" dolphin trainer Ric O'Barry, Center for Whale Research director Ken Balcomb, activist Russ Rector and his video of the underside of Lolita's tank and stadium, Ocean Drive Magazine's Jerry Powers, and Howard Garrett of Orca Network, who has championed the campaign to return Lolita to Puget Sound for ten years. This sensitive and beautifully crafted documentary includes some of the best wild orca footage available, giving a sense of what Lolita is missing, and what she could have again.