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.