December 11th, 2018

Lolita, the last survivor from the largest orca capture operation in U.S. history, is a slave to entertainment. Her prison is the Miami Seaquarium. There, she is forced to spend her days circling the waters of a tank that is just 80 feet across at its widest point. The tank has a maximum depth of only 20 feet, and it is further compromised by a concrete platform that nearly splits the tank in two. For a being that would swim up to 100 miles per day and dive hundreds of feet in an ocean environment, this is hell on earth.

As a Sea Shepherd entity, we are categorically opposed to captivity in all forms as a matter of ethics - and as the legal arm of the Sea Shepherd movement, we use the law to vindicate this and other guiding principles. While the law does not always support our vision, there are times when legislators have seen the light. This is the case, at least to a certain extent, with the Endangered Species Act (ESA) and Animal Welfare Act (AWA).

As we explain in an article recently published in Animal Law Review, the ESA and the AWA combine to offer enhanced protections to captive animals that are members of an endangered or threatened species. See generally Sea Shepherd Legal, The Endangered Species Act as Applied to Captive Animals, 24 Animal Law Review 277 (2018). While the AWA imposes “minimum requirements . . . for handling, housing, feeding, watering, sanitation, ventilation, shelter from extremes of weather and temperatures, adequate veterinary care, and separation by species,” 7 U.S.C. § 2143 (emphasis added), the ESA adds an additional set of protections for species with a precarious conservation status. Among other things, the ESA makes it illegal to “take” an endangered species. As statutorily defined, “[t]he term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19) (emphasis added). Ever since the Supreme Court’s landmark decision in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687 (1995), the legal community has understood that “take” is an exceedingly broad concept. As the terms “harm” and “harassment” indicate, it is not necessary for a person to kill or wound a member of a listed species to engage in prohibited “take.”

When the National Marine Fisheries Service (NMFS) added captive members of the Southern Resident killer whale Distinct Population Segment (SRKW DPS) to the list of endangered species in 2015—effectively expanding the scope of its 2005 decision to list the wild population of the SRKW DPS—Lolita became entitled to this additional set of ESA protections. Although the Miami Seaquarium acts as if nothing changed, the law says otherwise. As a result of its ongoing harm and harassment of Lolita, the Miami Seaquarium is committing prohibited “take” of Lolita on a daily basis.

So far, the responsible federal authorities have failed to come to this conclusion. That does not mean that they are right. As we explain in our article, the addition of ESA protections to the AWA baseline, in the case of Lolita or any other captive animal, should be just that: a regulatory adjustment that adds protections for the subject animal. As it stands, Lolita is being deprived of her rights under law. This is something we cannot tolerate.

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