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.