NEWS RELEASE - FOR IMMEDIATE RELEASE
October 16, 2012
*photos available upon request
Susan Berta/Howard Garrett
NMFS will reconsider exclusion of the captive orca Lolita from ESA listing of her extended family
Background: On November 18, 2005 the National Marine Fisheries Service (NMFS) announced their Final rule to list the Southern Resident Killer Whales (SRKW) as Endangered under the Endangered Species Act (ESA). Included in the Final rule without any basis or explanation, is this sentence:
The Southern Resident killer whale DPS does not include killer whales from J, K or L pod placed in captivity prior to listing, nor does it include their captive born progeny.
The ESA, however, applies to all members of listed population, whether in the wild or in captivity. So on October 27, 2011 a team of attorneys working with People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF) filed notice with NMFS that "NMFS' decision to exempt captive members of the Southern Killer Whale DPS (Distinct Population Segment) is unlawful."
On October 12, 2012 NMFS agreed to reconsider its exclusion of the orca Lolita from the listing of the family from which she was taken more than 40 years ago. NMFS could have resisted for many more months until the court finally forced them to reconsider, if it ever did. On May 2, 2012 a district court dismissed the case on procedural grounds without even looking at the merits. That dismissal seemed to set the case back many months and required Lolita's lawyers to appeal the dismissal, which is where the matter stood until this dramatic announcement by NMMS that they will allow the attorneys to rewrite the Final rule, leaving out the language that excludes Lolita.
This means Lolita will now, presumably, be included as a member of an endangered population and must be accorded all the legal protections provided to her extended family. That would mean that her incarceration in a concrete box for the benefit of the entertainment industry would henceforth be illegal.
NMFS will have up to 12 months to accept or reject the new wording drafted by Lolita's legal team, but the most likely change will simply be the removal of the unlawful phrase above, so they may not take long to accept it. By agreeing to reconsider her exclusion from her family's endangered classification NMFS has essentially ended the court case and done what would have been asked for if we had won that case: reconsider her exclusion. That saves 6 months to a year of court deliberations and puts the whole process on a faster track.
For more, see Feds Agree to Reconsider Plight of Orca at Miami Seaquarium (PETA/ALDF news release, October 12, 2012).
The Associated Press story can be found here: Feds to reconsider petition aimed at freeing orca Lolita (Seattle Times, October 15, 2012).
Susan Berta and Howard Garrett