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Lolita comment points

Comments to NOAA on Lolita's status as an endangered orca under the ESA should respond to this comment in NOAA's announcement:
Activities that we believe may result in violation of section 9 prohibitions against ''take'' under section 9, depending on the circumstances, include, but are not limited to, releasing a captive animal into the wild. For example, in the recent proposed listing of five species of sturgeon, we noted that release of a captive animal into the wild has the potential to injure or kill not only the particular animal, but also the wild populations of that same species through introduction of diseases or inappropriate genetic mixing (78 FR 65249; October 31, 2013). Additionally, we consider the following activities, depending on the circumstances, as likely not resulting in a violation of ESA section 9 (and therefore do not require a section 10 permit): (1) continued possession of captives, and (2) continued provision of Animal Welfare Act-compliant care and maintenance of captives, including handling and manipulation as necessary for care and maintenance, as long as such practices or procedures are not likely to result in injury. We are seeking public comment on these issues as part of this proposed rulemaking.
That is, the agency is not only poised to decide whether Lolita must be included in the endangered listing, but also whether it believes Lolita's current conditions harm and/or harass her in violation of the ESA. Generally, comments therefore need to address that the issue here is not simply “continued possession” of captives, but that her conditions are an unlawful “take” because they are harmful to her and are not in compliance with the Animal Welfare Act. In addition, that “release of a captive animal into the wild” isn't the only alternative option here, but rather a protected sea pen.

It's likely that NOAA will follow through and include Lolita with her family's listing under the ESA. The tough decision for NOAA will be to judge where Lolita would be safest and healthiest - in continued captivity or back in her native waters. It's a tough question for NOAA because of the legacy of four decades collaborating with the industry, albeit increasingly willing to make decisions that are not in step with the industry (like the paper by Small and DeMaster, 1995, that established that lifespans for orcas are shortened dramatically by captivity, and this ESA decision).

But also there is the background noise of pro-industry messages disseminated throughout the cetological community for four decades, which can be summed up as: “once in captivity, always in captivity.” It took a movie star orca, Keiko, and a multi-billionaire, Craig McCaw, to break through that logjam and get Keiko into his native waters in Iceland, but it was against a lot of in-house opposition and ingrained negativity about the capabilities of orcas after long-term captivity. And, it was that backlog of pompous certitude by industry personnel that prevented Keiko's benefactor from investing in long-term field studies off Iceland, which might have located Keiko's family, and he might be out there with them to this day. Nevertheless, Keiko showed dramatically that he responded fantastically from the first minutes of his first immersion in his native waters, and that's important data for us to use for Lolita. From Keiko's Story:
September 9, 1998: Thousands of Keiko's fans and 546 journalists cover Keiko's 8-hour transport by a US Air Force C-17 directly from Newport to Vestmannaeyjar, Iceland, including two in-air refuelings. Live video is fed to the Ocean Futures web site from the air during Operation Keiko Lift. This is the first time a live video feed is done from a C-17. The plane breaks a wheel strut on landing.

The C-17 Globemaster III used to fly the mission is the only aircraft that can accomplish moving such a large load and deliver it to such a short runway.

As soon as he is immersed, Keiko pumps his flukes to swim clear of the stretcher and immediately dives. He surfaces a full minute later, circling the pool, echolocating and vocalizing excitedly, as if calling out “Who's there?” After 10 minutes of energetically exploring his new home he turns to his human friends perched at the pool's edge. He allows Jen Schorr to scratch him briefly, but seems more interested in the place than the humans. Within 2½ hours Keiko communicates with a pilot whale that swims into his cove. He is visible to tourists only by two telescopes set up across the bay.

September 11, 1998: Bob Ratliffe, Executive Director of the Foundation says that Keiko is vocalizing like he's never done before – much more than when he was in Oregon.

September 12, 1998: Keiko's activity level is much higher than it was in Oregon. He begins "porpoising," coming smoothly out of the water in a continuous, graceful arc to breathe and slipping immediately beneath the surface again. In the past he often stayed at the surface following a breath. Dr. Cornell is visibly moved by Keiko's response so far. “As a veterinarian, Keiko's medical supervisor and a human being,” he says, pausing to regain his composure, “it can't get any better.” In late September, winds of over 130 mph lash the baypen. Staff and Keiko come through unharmed. Baypen repairs continue through the winter months.

November, 1998: Foundation spokesperson Diane Hammond reports: “When Keiko's staff engages him, he plays, embellishing wildly on whatever behaviors he is asked to do. For example, when he is asked to do a speed-swim-a normally straightforward lap around the pool, underwater-he does one on his side, instead, with one pectoral flipper upraised. He is asked to spyhop, and he comes out spitting water between his teeth. When asked to waggle both pectoral flippers above water, he blows vigorous underwater bubbles from his blowhole, instead.” Life Magazine carries a four-page spread about Keiko.

Hurricane-force winds, 135-miles-an-hour, pound his sea pen, but Keiko's keepers say he is having a fine time during the storms and feels no ill-effects in his new home. He spyhops to feel the wind, holds his pectoral fins high in the air, and jumps out of water to get sprayed by the salt spray.
Comments need to counteract the inertia of decades of industry culture that proclaims that captive orcas are weak and would be stressed and probably die upon immersion in their home waters. Keiko was the first orca to have disproved that self-serving propaganda, but the only other similar release was when Bimbo the (male) pilot whale was released in 1967:
Pilot whales are possibly the most similar to orcas among all cetaceans. Though slightly smaller, their social systems and general behavior greatly resemble that of orcas. Bimbo is a pilot whale that was captured in early 1960 when he was an adolescent at a length of 17' 6". He performed well for about three years, until his companion, a female pilot whale (possibly his mother), died. His behavior changed dramatically, becoming alternately agitated and depressed. After twice smashing through observation windows, he was released into the Pacific Ocean in 1967 (Valentry, 1969). Bimbo was positively identified in 1969 and again in 1974, by U.S. Navy dolphin collectors, both times in the company of a community of pilot whales.
So we have ample evidence that Lolita will do just fine in her native habitat. We just have to make that case to NOAA with great effect. Fortunately, we don't have to spend much time proving that captivity is harmful to the health of an orca, since the Blackfish Effect has made that case in the minds of the public over the past year.

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