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Dateline NBC playing So. Resident calls to Toki in 1996.

Judge dismisses ESA case vs. Seaquarium

June 1, 2016 - I'm afraid we have some bad news from Miami. U.S. District Judge Ursula Ungaro dismissed our case vs. the Seaquarium for violations of the Endangered Species Act. According to the ruling, until Lolita's captivity can be shown to gravely threaten her survival the ESA has not been violated. I believe the case would have shown that her survival is indeed gravely threatened by her confinement in that tiny concrete tub, but now the evidence will not be presented in trial.

The court ruled that:
The conditions in which Lolita is kept, and the injuries the Plaintiffs have presented to the Court, are largely addressed under a different federal law—the Animal Welfare Act. Under these facts, Plaintiffs remedy is not under the ESA, but rather with Congress, where their efforts to improve Lolita’s less than ideal conditions can be addressed through legislation.
The judge’s reasoning comes down to this in the conclusion:
...the plain terms of the ESA, its legislative history, and its coexistence with the AWA and the MMPA persuade this Court that a licensed exhibitor “take[s]” a captive animal in violation of the ESA’s section 9(a)(1) only when its conduct gravely threatens or has the potential to gravely threaten the animal’s survival.

Given the foregoing, analyzing the plain meaning of “take” and its attendant verbs—harm, harass, hunt, shoot, kill, wound, capture, trap, pursue, collect—relative to the ESA’s purpose and the two causes of species extinction Congress sought to counteract, it is clear that in formulating the ESA, “harm” and “harass” within the definition of “take” were intended to proscribe acts that are gravely threatening, constitute the seizure of, or have the potential to seize or gravely threaten a member of a listed species.

The flaw in Plaintiffs’ position is that their expansive interpretation of the words “harm” and “harass” in the ESA section 9(a)(1), if adopted by this Court, would bring the ESA into conflict with the AWA. It would displace a long established regulatory framework providing for licensing and oversight of exhibitors and researchers by APHIS, it would expose licensed exhibitors and researchers to liability to special interest groups despite their compliance with APHIS’ captive care standards, and would substitute the judgment of a federal trial court judge for the technical expertise of the responsible agency.
Essentially, per the court, given the existence of the AWA, the only circumstance in which a regulated facility can violate the ESA is if the animal is at serious risk of death in those conditions. This is an incredibly narrow application of the ESA to captive animals. It amounts to saying Lolita must be in her last days or hours due to the effects of captivity before she will be protected under the ESA.

This takes the campaign back to telling Toki's sad story of capture and involuntary service to the entertainment industry, and the safety and health benefits of our retirement plan for her, and putting pressure on the owners, Parques Reunidos, based in Madrid, and their subsidiary, Palace Entertainment, based in California, and the investment firm that owns Parques Reunidos, Arle Capital Partners in the UK, to convince them to make the morally respectable decision to allow Toki to return to her native waters where she was born and raised, with the opportunity to communicate with her family.

The primary decision maker to write to is:
Fernando Eiroa, CEO
Parques Reunidos Group
Casa de Campo, s/n
Madrid, Madrid 28011
From PETA and ALDF:
The judge's ruling in this case is based on a very narrow—and we believe flawed—interpretation of the Endangered Species Act that fails to protect captive animals from all but imminent death. This ruling allows Miami Seaquarium to continue harming the long-suffering orca Lolita by confining her to a tiny tank, subject to harassment from incompatible animals, with no companionship from her fellow species and little respite from the hot South Florida sun. PETA, the Animal Legal Defense Fund, and Orca Network will consider all legal initiatives for Lolita, including appealing this decision, and will continue to work for her release to a seaside sanctuary that is waiting for her in her home waters off the coast of Washington state, near where her protected endangered relatives still travel together.
Thank you all for your support for Toki's retirement to her home and family.


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