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Decision gives whale advocates new hope
A 20-year quest to bring home Lolita, the last of seven orcas captured from Penn Cove decades ago, has resulted in a small but significant victory.
In late January, National Marine Fisheries, a division of the National Oceanic and Atmospheric Administration, announced that the whale is considered a member of the Southern Resident orca population, which is listed under the Endangered Species Act of 1973.
The decision is not yet official, nor is there any guarantee that Lolita will be released from captivity, but it would afford her all the same protections as her Puget Sound relatives.
“This is the best shot Lolita’s ever had for returning home,” said Howard Garrett, a founder of Whidbey Island-based Orca Network, a group that has lobbied for the whale’s release for two decades.
“Finally, something is bearing fruit,” he said.
Lolita was captured in the famous orca roundup of 1970 in Penn Cove. An estimated 90 members of L-pod were corralled and seven, including the then 4- to 6-year-old Lolita, were taken and sold to marine parks around the world.
Miami Seaquarium has been Lolita’s home since. She is the only surviving member of the capture. Six orcas died in captivity within five years.
That roundup and others eventually led to a court decision banning orca captures in Washington state and helped pave the way for the Marine Mammal Protection Act of 1972.
Garrett and the nonprofit group have helped lead the fight for Lolita’s release. He lived in Miami for two years protesting her captivity. The Orca Network holds annual commemorations in Penn Cove and, most recently, was featured in the film “Blackfish,” which highlighted the plight of whales and marine mammals in captivity.
NOAA’s recent decision was the result of a 2011 lawsuit by People for the Ethical Treatment of Animals, or PETA.
PETA sued the agency over a 2005 ruling that listed Southern Resident orcas under the Endangered Species Act, but specifically excluded whales already in captivity.
“They basically carved out this exception just for Lolita,” because she is the last remaining Southern Resident orca in captivity, said Jared Goodman, PETA’s director of animal law.
A settlement was reached, however, and PETA followed up with a petition for NOAA to reconsider the earlier decision.
On Jan. 24, 2014, the federal agency announced it agrees with PETA’s position, and officially ruled that Lolita is indeed a Southern Resident orca based on the biology of her genetics and acoustics, according to NOAA officials.
“We were thrilled [but] it was expected,” Goodman said.
NOAA’s decision is open for public comment until March 28, and a formal decision will be made within one year of that date.
For Garrett, NOAA’s announcement was not a conclusive victory, but it is a step in the right direction.
“It’s a huge ray of hope,” he said. “This is the first time we’ve had the legal leverage to mandate her return home.”
For the first time since her capture, Garrett said Lolita’s fate is undecided.
“It will be up to NOAA and not Seaquarium, and that makes all the difference.”
How much of a difference, however, may be a matter of interpretation.
Lynne Barre, Seattle branch chief of NOAA’s Protected Resource Division, said the January determination does not empower the federal agency to make decisions about the whale’s ownership.
“That’s not the position that we have,” said Barre, nor does it mean she’ll be released.
In fact, NOAA’s official opinion is that the orca may be afforded protections under the Endangered Species Act while remaining in captivity, Barre said.
NOAA’s policy reversal from its 2005 decision, she said, but it remains unclear what that will mean for mammals such as Lolita.
It’s unclear whether Lolita’s protection under the act would prohibit her from performing.
“It’s probably for our lawyers to figure out,” Barre said.
Goodman said the PETA believes the issue is clear.
PETA is involved in a separate lawsuit with the U.S. Department of Agriculture over Lolita’s living space at Seaquarium.
“We believe her current conditions violate the Endangered Species Act,” he said. “It’s unquestionable that those conditions are unhealthy and she’s being harmed and harassed in violation of the law.”
PETA representatives argue that Lolita should be released, returned to Washington state and gradually reintegrated into the wild.
Orca Network is advocating that she be reintroduced into Puget Sound in an enclosed pen in Kanaka Bay on San Juan Island.
In time, Garrett said he hopes she can be successfully reunited with L-25, the whale some believe to be her mother, and the rest of L-pod.
“It would be such a fairy tale, a cultural and iconic story that there is a way to change our attitudes and behavior toward nature.”