Proposal could result in Lolita’s freedom

A 20-year quest to bring home Lolita, the last of seven orcas captured from Penn Cove decades ago, has resulted in what may be a small but significant victory.

A 20-year quest to bring home Lolita, the last of seven orcas captured from Penn Cove decades ago, has resulted in what may be 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 she’ll be released from captivity once it is, but it would afford her all the same protections as her Puget Sound relatives. Advocates say the decision could be a game-changer for animals in captivity and may be Lolita’s best chance for release in decades.

“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 the past two decades.

“Finally, something is bearing fruit,” he said.

A ray of hope

Lolita was captured in the famous orca roundup of 1970 in Central Whidbey’s Penn Cove. An estimated 90 individuals 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. She has called Miami Seaquarium home ever since and is the only surviving member of the capture — the other six died in captivity within five years.

That roundup and others eventually led to a court decision that banned orca captures in Washington and helped pave the way for the Marine Mammal Protection Act in 1972.

Garrett and the non-profit 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, were 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. The national animal advocacy group 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 and PETA followed up with a petition for NOAA to reconsider the earlier decision. On Jan. 24, 2014, the federal agency announced it agreed with PETA’s request, officially ruling that Lolita was 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.

Similar disputes have raged over land mammals, such as chimpanzees, and the U.S. Fish and Wildlife Service released conclusions prior to NOAA’s announcement that captivity does not prohibit protection as an endangered species.

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 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, he believes Lolita’s fate is undecided.

“It will be up to NOAA and not Seaquarium, and that makes all the difference,” he said.

Not our position

How much of a difference, however, may be a matter of interpretation. According to Lynne Barre, Seattle branch chief of NOAA’s Protected Resource Division, 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 is a reversal from its 2005 decision, she said, but it remains unclear what that will mean for mammals such as Lolita.

“There are still a lot of questions there that need to be answered,” Barre said. “It’s a broader question of just what the Endangered Species Act means for animals in captivity.”

For example, should Lolita remain at Seaquarium it’s still unclear whether her newfound protection under the act would prohibit her from performing.

“It’s probably for our lawyers to figure out,” Barre said.

As for PETA, Goodman said the organization 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 believes Lolita should be released, sent back to Washington and gradually reintegrated into the wild. Orca Network is advocating for a similar result, that she be reintroduced into Puget Sound in an enclosed pen in Kanaka Bay on San Juan Island.

In time, Garrett hopes she can be successfully reunited with L-25, the whale some believe to be her mother, and the rest of L-pod.

While there is considerable debate over the success of past reintegrations, particularly concerning Keiko — he died five years after being released — Garrett believes Lolita can be reintroduced successfully.

He also maintains that while the legal waters that surround NOAA’s decision remain murky, the issue boils down to one thing.

“The real question is, ‘Where is she better off?’” he said. “For me, it’s a no brainer.”

The orca’s release would also be a clear and ringing signal that people’s perceptions about animals and nature have changed, a recognition that they “are not commodities.”

“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,” Garrett said.