Garrett and the Sheriffs
This playlist features:
Garrett and the Sheriffs
This video includes presentations and performances by Melissa Sehgal, Rachel Carbary, Howard Garrett, Kierra, David Neiwert, Sandra Pollard, Carol Ray, Jeff Friedman, and Audri Cooke.
Commemoration of the 45th Anniversary of Lolita's Capture from Penn Cove in Coupeville, WA on August 8, 2015
This playlist includes presentations and performances by Samish Elders Rosie Cayou & Bill Bailey, Langley Mayor Fred McCarthy, Orca Network's Howard Garrett, Musicians Jim Marcotte, Vern Olsen & Derik Nelson & Family, and Authors Sandra Pollard and David Neiwert.
Videos in the playlist:
Yesterday the government acknowledged that it failed to provide Lolita the legal protection she deserves for the past ten years.
It's taken NOAA a decade to determine the obvious facts:
1. Lolita was born a Southern Resident Killer Whale and
2. She should have been protected under the law since 2005.
This determination was only made because members of the public petitioned the government to do its damn job. As the government has not provided the protection for which Lolita was legally entitled, the government itself should be held liable.
"Liability for a take may not always rest with the entity directly responsible for the action. A series of recent cases demonstrates that governmental entities (federal, state, or local) that license or regulate conduct that results in harm to listed species can be indirectly liable for take."
There are provisions in the Endangered Species Act which allow private citizens to take legal action against the government if the act is not properly enforced.
The government has failed Lolita for far too long so our job as Lolita's welfare advocates continues.
Featuring Paul Spong, Ken Balcomb, David Phillips, Country Joe McDonald, Ann and Nancy Wilson of Heart with Special Guest, Graham Nash
Recorded at The Sky Church, Experience Music Project, Seattle, Washington, U.S.A.
(Unfortunately Paul Spong's eloquent words were truncated in this recording.)
On Wednesday The Pacific Legal Foundation (PLF) filed its comments on the regulation of privately-owned animals under the Endangered Species Act (ESA).
It's pro-captivity comments are consistent with its stated mission of being "dedicated to protecting economic, property, and individual rights from the relentless expansion of government power." The public interest in Lolita's welfare is clearly not consistent with its stated mission.
The PLF suggests, "If members of a species in the wild disappear while regulated under the ESA at the same time that privately-owned members thrive without regulation, this wouldn’t be evidence that the privately owned members should be regulated. It would suggest, rather, that private ownership is superior to regulation."
The suggestion that privately-owned members would thrive without regulation demonstrates an ignorance in the overwhelming scientific evidence regarding the harmful and even fatal effects of captivity on such privately owned members.
To suggest that no regulation is superior to regulation is laughable. Had Washington State not restricted the capture of Southern Resident Killer Whales through its regulations, this endangered species would have likely become extinct years ago.
The PLF also suggests that, "When animals are privately owned, the owner has a financial incentive to ensure that they survive and propagate."
However, the financial incentive of private ownership is not rooted in the public trust doctrine or environmental stewardship; instead, it is the product of commercial exploitation, measured by ticket revenue generated at the gate.
If Lolita were no longer able to perform, whether through regulation or not, she would no longer generate sufficient revenue to feed this financial incentive. The propagation of a captive endangered species whose captive-born progeny would in turn be subsequently harmed by the act of captivity also feeds this financial incentive.
The PLF suggests that "Private ownership is an important means of preventing species extinction."
However, the on-going market demand for captive killer whales and dolphins, originally created by the likes of the Miami Seaquarium and SeaWorld, and the subsequent commercial exploitation of these animals through private ownership was a significant contributor to Southern Resident Killer Whales becoming endangered in the first place.
Today is the last day to provide comments in favor of granting legal protection for Lolita, the sole living survivor of the Southern Resident Killer Whale captures.
Please comment for Lolita before this Friday's deadline.
Petition to Include the Killer Whale Known as Lolita in the Endangered Species Act Listing of Southern Resident Killer Whales:
I support the proposed rule to grant Lolita equal protection by including her as a listed member of the endangered Southern Resident Killer Whale species and request consideration be given to science-based findings for her protection under the law, including relocation from the current “habitat” which further endangers her.
Lynne Barre, Seattle branch chief of NOAA’s Protected Resource Division, said that its determination does not empower the federal agency to make decisions about Lolita's ownership.
However, the question regarding whether Lolita is owned by Miami Seaquarium or held in the public trust is quite germane to this case.
NOAA is part of the Executive Branch that is vested with the police power of eminent domain, which could be employed to acquire Lolita from Miami Seaquarium with compensation, if she is considered private property.
NOAA has not only the power but also the responsibility to make such a relevant determination in order to evaluate the appropriate range of alternatives to protect the public interest in Lolita's welfare.
In Lolita’s case regulating agencies have failed to provide adequate protection of public trust resources. Trustees should be held responsible to their beneficiaries. Commercialization, through the captivity of privately-owned wildlife, can violate the public trust and further endanger wildlife itself.
Accountability for trustee actions, decisions, and policies have been sorely lacking in Lolita’s case. There has been little if any documented evaluation of the trustee’s performance in order for public beneficiaries to hold the trustee accountable.
Actions of the trustees should be transparent and clearly described to facilitate such an evaluation. Examples of accountability mechanisms include requirements for public participation, education and full disclosure of accomplishments and failures.
Ms. Barre said that NOAA’s official opinion is that Lolita may be afforded protections under the Endangered Species Act while remaining in captivity. However, Lolita should be afforded protection whether she is held captive or not.
Ms. Barre stated that it was unclear whether Lolita’s protection under the act would prohibit her from performing. “It’s probably for our lawyers to figure out,” she said.
“Under the Endangered Species Act, we think release into the wild could be harmful to the mammal and to the wild population,” said Ms. Barre. What she failed to acknowledge is that further captivity itself could be as harmful if not more so.
The NOAA attorneys and staff must be informed by science. Whether or not Lolita continues to perform in captivity is not as important as the question: Does her continued captivity and confinement in a derelict, substandard tank further endanger Lolita?
There is abundant evidence from scientific research documenting the harmful effects of captivity. Whether she is considered private property or not, Lolita continues to be held in violation of the spirit of the public trust doctrine.
There was no public purpose served by exempting Lolita from being listed as a Southern Resident Killer Whale under the Act in 2005.
Lolita’s well-being should have been ensured under the Act for the past nine years. Instead her legal rights to protection and the growing body of scientific evidence documenting the harmful effects of captivity have been effectively ignored.
The Endangered Species Act’s "take" prohibitions provide a legal precedent to protect Lolita. "Take" is defined in section 3 of the Act as "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect" or to attempt to engage in any of these activities. However, the liability for a “take” is not limited to the entity directly responsible for the action.
Recent case law shows that entities which regulate conduct that results in harm to listed species can be held liable for such a “take.” Many of these cases have been decided pursuant to section 9(g) of the Act, which provides that "it is unlawful for any person subject to the jurisdiction of the United States to attempt to commit, solicit another to commit, or cause to be committed, any offense prohibited by the ESA.”
The Act forbids government agencies from participating in any action that may “jeopardize the continued existence” of any endangered species. There are also provisions for private citizens to take legal action against the government to make sure the Act is enforced.
As it has failed to provide meaningful protection against the harmful effects of captivity for which Lolita was legally entitled, the government should be held liable under provisions of its own Act.
If the government extends Lolita’s captivity, it will expose her to further stress and health risks. It will needlessly extend her exposure to intense, low-latitude solar radiation, mosquito-borne illness, acoustical harm, polluted Biscayne Bay water which feeds her derelict, substandard tank which offers no freedom of movement, and other on-going threats.
An update to my last blog post raised the question: Is Lolita is considered property or held in the public trust by the Miami Seaquarium (MSQ)?
If she is considered property then the government should use its police powers to "take" Lolita back with compensation to the MSQ. The constitutionality of "takings law" have been upheld so long as there is a reasonable nexus between the "taking" and the public benefit derived therefrom.
However, if Lolita is held in the public trust then the principles discussed in "The Public Trust Doctrine: Implications for Wildlife Management and Conservation in the United States and Canada" should apply.
The Public Trust Doctrine is one of the best models of promoting the public’s interest through wildlife management. While it has been supported by case law, the doctrine has been rarely supported in the United States and Canada by constitutional, provisional or statutory law.
Commercialization places monetary value on wildlife and can threaten public ownership of wildlife by raising incentives for privatization. Curiously, there appears to be little distinction between privatization of wildlife and its commercialization.
It has been generally accepted that wildlife belongs to the public until it is lawfully taken, at which point it becomes the private property of the taker. Once deemed private property, wildlife is subject to the regulations of the appropriate government jurisdiction.
But regulating jurisdictions have often failed to provide adequate protection of trust resources, as has been the case with Lolita, a wild-born member of an endangered species who is further endangered by captivity.
Trustees should be held responsible to their beneficiaries. Commercialization, through the captivity of privately-owned wildlife, can threaten and even violate the public trust in several ways.
The markets created by the captivity industry continue to provide incentives to promote illegal harvest in order to supply the markets created by the commerce associated with privately-owned wildlife.
The MSQ was one of the first to create the market demand for harvesting Southern Resident Killer Whales for commercial purposes. This commercialization contributed significantly to the endangerment and decline of the species.
Accountability for trustees’ actions, decisions, and policies have been lacking. There should be means by which to evaluate the performance of trustees and for public beneficiaries to hold them accountable for their actions.
The actions of the trustees should be transparent and clearly described to facilitate such evaluation and accounting. Examples of accountability mechanisms include requirements for public participation, education and the full disclosure of accomplishments and failures.
There are provision in the Endangered Species Act for citizens to hold the government itself accountable for failing to enforce the letter and spirit of the Act. There was no public purpose served to exempt Lolita from being listed as a natural-born Southern Resident Killer Whale and no purpose to continue doing so.
Clearly the public trust has been violated for more than four decades. The regulating agencies fail to provide protection in response to contemporary scientific evidence regarding the harmful effects of captivity on Cetaceans.
Whether she is considered private property or not, Lolita continues to be held in violation of the spirit of the public trust.
Please provide comments on Lolita's behalf before the end of March 2014.
Presented by Howard Garrett of OrcaNetwork.org
Ways of Whales Workshop
January 25, 2014
Coupeville, Whidbey Island, Washington
PLEASE COMMENT FOR LOLITA:
On the 40th anniversary of her capture I asked Ric O'Barry about the idea of the government using its police powers to "take back" Lolita, assuming she is considered to be property of Miami Seaquarium (MSQ). He said that she is not considered property but instead is held in the public trust and was skeptical the government would take any action. He said that one of the requirements MSQ must meet to hold her in the public trust is public education.
However, MSQ provides neither accurate public information regarding Southern Resident Killer Whales nor cetacean captivity based on contemporary scientific research. Back when MSQ "acquired" her (by creating the "market demand" for an industry which caused her species to become endangered in the first place), the science was in its infancy. MSQ's so-called "public education" remains mired in 1970s dogma and ignorance, oblivious to the realities of scientific research during the intervening four to five decades.
With support from the Center for Whale Research and many others, the implementation of Orca Network's retirement plan for Lolita should provide a wealth of valuable research, coordinated with public universities, thus promoting the public good while protecting an even more valuable and rare international treasure who has earned her retirement and right to relocate with her family back home.
Within the next few years the Southern Resident Killer Whale population should increase by one former Resident. Are not the objectives of the Endangered Species Act to increase the population of endangered species in the wild and also protect endangered populations from any further harm? Both objectives can be easily achieved by retiring her to the Salish Sea. Lolita's family needs her. Right now they need us more than ever by providing official comments in support of Lolita and her family before the public input deadline, which is about a month away.
Updated Feb. 11, 2014:
The film, "Lolita, Slave to Entertainment" (see below), indicated that Lolita was no longer held in the public trust. However, this film was made nearly a decade before I spoke with Ric. Whether her status changed again in the intervening years is unclear. Is Lolita legally considered property or is she held in the public trust by MSQ?
One thing is clear: Lolita's legal status and future is engulfed in murky legal waters. Please comment soon to support her future waters being those of the Salish Sea.
See also: Everett Herald article "Murky Legal Waters"