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Lolita Held in Violation of the Public Trust

2/25/2014

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

12/28/2010

 
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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

 
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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.

Ric O'Barry speaks against cetacean captivity on the 40th anniversary of Lolita's capture from Penn Cove

12/19/2010

 

Unsuitable habitat for endangered species!

12/16/2010

 
These disgusting facilities are far from being suitable habitat for endangered Resident Orcas, Lolita and Corky.
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Lolita has been doing "hard time" in solitary confinement in this tiny, illegal prison pool at the Miami Seaquarium for more than 40 years.
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Corky's pool is somewhat larger but presents an equally harmful threat to captive cetaceans, especially when imprisoned for long periods of time. SeaWorld and Miami Seaquarium allow human employees to retire after more than 40 years so why not Lolita and Corky?
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Captive orcas die far too young compared to their wild cousins. This list shows only the known orca deaths at SeaWorld parks.
1. Shamu - 6 years
2. Ramu - 15 years
3. Kilroy - 11.5 years
4. Kandu - 4 years
5. Orky2 - 20 years
6. Nootka - 20 years
7. Winston - 15.5 years
8. Kandu3 - 4 years
9. Sandy - 4.5 years
10. Kona - 6 years
11. Canuck - 2.5 years
12. Frankie - 5 months
13. Kandu - 15 years
14. Kenau - 15 years
15. Gudron - 19.5 years
16. Canuck2 - 4 years
17. Kona2 - 10 years
18. Kandu5 - 12 years
19. Winnie - 24.5 years
20. Kotar - 16.5 years
21. Shawn? - 1 year
22. Kahana - 12 years
23. Nootka4 - 12 years
24. Haidi2 - 9 years
25. Samoa - 8.5 years
26. Baby Shamu2 - 11 days
27. Katerina - 10.5 years
28. Splash - 15.5 years
29. Kenau's baby died in womb
30. Samoa's baby died at birth
31. Taku - 14 years
32. Nyar - 2 years
33. No Name- - 8 days
34. Hayln - 2 1/2 years
35. Taima - almost 21 years along with her stillborn baby
36. Bjossa - 21 years
37. Haida 2's baby died in womb
38. Stillborn to Kalina
39. Stillborn to Gudron
40. Stillborn to Nootka 4
41. Kona 2's baby died in womb
42. Corky 2 had miscarriage
43. Kandu5 had stillborn
44. Unna had stillborn
45. Sumar - 12
46. Kalina - 25 years

The Miami Seaquarium also contributes to this horrible list:

47. Southern Resident Killer Whale Hugo, who died in captivity 30 years ago at the Miami Seaquairum; he was Lolita's only companion. She has since been sentenced to solitary confinement.
48. Stillborn to Lolita (reported by the St. Petersburg Times in 1973) 


 "There is as much educational benefit in studying dolphins in captivity as there would be in studying human beings by only observing prisoners in solitary confinement." Jacques Cousteau

Don't allow Lolita's and Corky's names to be added to these lists: Boycott the Miami Seaquarium and SeaWorld parks!

Graphic & list courtesy of Taiji Action Group/Mark Bamberry
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