Howard Garrett of Orca Network tells the story of the infamous Penn Cove orca captures at the site where they occurred. Endangered Southern Resident Killer Whale Lolita/Tokitae, the last living survivor of the captures, has been held captive ever since in the Miami Seaquarium for the last 48 years. For more information, visit OrcaNetwork.org
For years I have been an advocate of the government taking back the last remaining survivor of the Southern Resident Killer Whale captures, Lolita (Tokitae).
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.