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.