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My Comments in Support of Granting Lolita Legal Protection

3/26/2014

 
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.


We Tweet for Cetaceans

3/2/2014

 

@CarolineKennedy What can we do to help influence change on this dolphin issue? We don't want to hate we just want to help. Bill

— William Shatner (@WilliamShatner) January 24, 2014

Regarding Blackfish....no band that I am in will ever play any where they have imprisoned dolphins or orcas...not ever

— David Crosby (@thedavidcrosby) December 30, 2013

Deeply concerned by inhumaneness of drive hunt dolphin killing. USG opposes drive hunt fisheries.

— キャロライン・ケネディ駐日米国大使 (@CarolineKennedy) January 18, 2014

Dear Japan, the world is watching and we are horrified. #Taiji #blackfish #SeaWorld #SaveCoveDolphins #SeaCircus #tweet4taiji

— Holly Marie Combs (@H_Combs) January 19, 2014

@Peta #Seaworld Orca link: http://t.co/cJQuxIKp

— Bill Maher (@billmaher) October 26, 2011

"Shamu's jumped the shark" #seaworld

— Gina Trapani (@ginatrapani) October 14, 2010

Horrible. @seaworld kills another Orca... http://jc.is/bpUhk4 Do not take your kids to @seaworld--they are torturing these animals.

— jason (@Jason) September 9, 2010

(tweet fix): @KidRock and @OfficialJackson you're going to play #seaworld ? shame man....shame...wake the hell up dudes....L

— Les Stroud (@reallesstroud) January 30, 2014

“@CarolineKennedy:Deeply concerned by inhumaneness of drive hunt dolphin killing. USG opposes drive hunt fisheries.” Thank U for Ur support

— Kirstie Alley (@kirstiealley) January 19, 2014

Lolita Held in Violation of the Public Trust

2/25/2014

 
Picture
Photo by Ross Cobb (labeled for non-commercial re-use): http://www.flickr.com/photos/miamiflyme/
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.

Timely Updates on Lolita (Tokitae) and "The Blackfish Effect"

1/25/2014

 
Presented by Howard Garrett of OrcaNetwork.org
Ways of Whales Workshop
January 25, 2014
Coupeville, Whidbey Island, Washington

PLEASE COMMENT FOR LOLITA:
 http://www.regulations.gov/#!documentDetail;D=NOAA-NMFS-2013-0056-1841


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"

Shifting Trends in Orca Captivity

1/29/2012

 
Presented by Howard Garrett of OrcaNetwork.org
Ways of Whales Workshop
January 28, 2012
Camp Casey, Whidbey Island, Washington

From Cetacean Inspiration's Blog

12/14/2011

 
I shared the following comments on this well written piece by CetaceanInspiration:

I saw Lolita at MSQ in the 1970s when she and I were both in our teens. Back then people neither knew that much about SRKWs nor the ill effects of captivity on cetaceans but now we know or should know.

However the MSQ does not incorporate findings from any contemporary scientific research on SRKWs or cetacean captivity in its so-called education program. This is evident if you compare its current program with that from 40 years ago. As a result the MSQ has betrayed the public trust. The mis-education campaign (which is designed to protect its commercial interests in her) is the very reason why the government must intervene and revoke the MSQ’s ability to continue “holding” her in the public trust.

Northern and Southern Residents know no international boundaries

5/9/2011

 
A recent post in the Whales & Dolphins Blog of B.C. reported that Northern Residents had been sighted in U.S. waters.

This reminded me of the sighting of several Southern Residents, which were observed near the Vancouver Coal Docks on August 24, 2010.  An unidentified male can be seen foraging in this photo taken aboard Capt. Jim Maya's boat, the Peregrine.

The threatened Northern and Southern Residents are true international residents; as such they deserve coordinated protection by the U.S. and Canada, including the captives Corky and Lolita.. 
Picture

Today marks the 37th anniversary of the Endangered Species Act.

12/28/2010

 
Picture
When it comes to threatening Lolita, the government is even more villainous than the Miami Seaquarium.

Her well-being should be ultimately ensured by the government; instead it effectively ignores her legal rights to special protection as a Southern Resident Killer Whale, ignores scientific evidence of captivity's harmful effect on cetaceans, and thereby further endangers Lolita and her entire family.

Through its inaction the government has accomplished just the opposite of the intent of the Endangered Species Act, which was signed into law by President Nixon on this day 37 years ago. 


To mark this occasion, contact your elected officials in the U.S. and Canada and insist the government be held accountable for failing to provide Lolita legal protection to which she has been entitled under the ESA for more than five years.


The Southern Residents are true international residents as their Salish Sea home waters are not bound by the U.S./Canadian border.

There are also provisions for private citizens to take legal action against the government to make sure the act is enforced.


If politicians and bureaucrats won't take appropriate action, then the citizens must!

Carole May's "An Orca Named Lolita"

12/21/2010

 
Carole May's comprehensive and engaging series, previously published in the Puget Sound Marine Life Examiner. 
(May you rest in peace, Carole)

Part 1
Part 2
Part 3
Part 4
Part 5
Part 6
Part 7
Part 8
Part 9
Part 10
Part 11
Part 12
Part 13
Part 14
Part 15
Part 16
Part 17
Part 18
Part 19

Lolita Deserves Her Legal Rights

12/19/2010

 
Picture
The Endangered Species Act 4(d) rule "take" prohibitions could provide a legal precedent to protect Lolita from harmful conditions at the Miami  Seaquarium and the local, state and federal governments which fail to prevent such harm.

"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." 


As the government is not providing protection for which Lolita is legally entitled,  the government itself should be held liable.

Let's hope that attorney Steven Wise will choose Lolita as the subject of his case for recognizing the legal status and rights of cetaceans as "persons."

There are far too many compelling reasons Lolita needs protection and legal rights:
  • Lolita has been held captive in the smallest facility for the longest time
  • She is the only living, captive, endangered Southern Resident  Killer Whale
  • The market demand created by the Miami  Seaquarium for the capture of wild orcas was a primary contributor  to her species becoming  endangered
  • The government has failed to protect Lolita under the Endangered Species Act for half a decade.
Please ask your elected officials to support government intervention to ensure the legal rights Lolita deserves.
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