UPDATE: Though the 11th Circuit Court is based in Atlanta, Lolita's court case will be reviewed at 9 a.m. at the court's satellite location in Miami at the James Lawrence King Federal Justice Building in downtown.
On March 24, the 11th Circuit Court of Appeal will consider the Animal Legal Defense Fund's (ALDF) lawsuit regarding the captivity of Lolita, the orca exhibited at Miami Seaquarium.
In the years leading up to the suit, numerous animal-rights activists contacted the United States Department of Agriculture (USDA) to express their concern that Lolita the killer whale was kept in inhumane conditions at Seaquarium.
Activists stated that the marine mammal park continuously failed to comply with the regulations outlined in the Animal Welfare Act (AWA) in regard to the orca's captivity. It cited a laundry list of violations at the Seaquarium. Among them: her small substandard tank, her lack of protection from South Florida's intense sunlight/inclement weather, and her lack of orca companionship
Despite these complaints by the public and evidence that conditions at the Seaquarium violated the AWA's minimum standards, the USDA has still routinely renewed Seaquarium's exhibition license each year. The AWA was enacted to "ensure that animals... are provided [with] humane care and treatment."
In February 2012, however, the ALDF, one of the nation's leading animal-rights organizations, contacted the USDA and urged the government agency not to renew the Seaquarium's license because of the several violations. It referenced the AWA chapter that states "No... [exhibition] license... shall be issued until the dealer or exhibitor shall have demonstrated that his facilities comply with the standards promulgated by the Secretary."
The ALDF even filed a 17-page submission to the USDA, detailing how the conditions Lolita has been (and continues to be) kept in violate the various AWA standards. The thorough report also included sworn statements by world-leading cetacean experts and an expert in zoo design, all of whom attested that the Seaquarium's noncompliance with the law must cause severe physical and psychological harm to Lolita.
One month later, the Eastern regional director of the USDA's Animal and Plant Health Inspection Service (APHIS), Dr. Elizabeth Goldentyer, replied that despite ALDF's submission and countless other complaints, the government agency still intended to renew Seaquarium's exhibition license because it found that the facility was in "compliance with regulations and standards" and that it could not deny licensing the marine mammal park.
In April of the same year, the USDA renewed the Seaquarium's license, just as its staff said it would.
Stunned by the "inexplicable" response, the ALDF teamed up with the People for the Ethical Treatment of Animals (PETA) and the Orca Network to file a federal lawsuit against the director and the USDA in the summer of 2012.
In court, the PETA's legal counsel began to break down how the Seaquarium blatantly violated the AWA:
"Not only does Lolita's tank fail to meet size regulations but the Seaquarium also fails to provide natural or artificial shelter to protect Lolita from the weather or direct sunlight, as required by the AWA. Lolita's tank is exposed to the strong Florida sun and accompanying ultraviolent radiation. Lolita's tank is only 20 feet deep at its deepest point and relatively clear, preventing her from diving deeply or into turbid waters to protect herself from the ultraviolet rays of the sun or to seek cover from common tropical storms."
The tank also does not comply with the requirement that marine mammals kept outside be afforded protection from inclement weather or direct sunlight, according to the suit. This puts Lolita at risk of sunburn and cataracts.
Rather than provide adequate shelter by extending the stadium covering over the tank, the Seaquarium applies black-colored zinc oxide as sunscreen to Lolita. The effects of the sunscreen on this animal's physiology are unknown. Since orcas have sensitive skin, the ointment may burn her upon application. Also, the sunscreen does not protect her eyes.
The ALDF and PETA also went on to state in court documents that since orcas are primarily social in the wild, the regulations mandate that she "must be housed with a compatible animal of the same or biologically related species." Yet since 1980, when her mate Hugo died from hitting his head of the small tank he shared with Lolita, the female orca has been socially isolated from other orcas.
Although the Seaquarium houses Lolita with Pacific white-sided dolphins, these animals are not anymore "biologically related" to her than a human is related to a gorilla (though both primates). As a result, Lolita is not afforded the proper kind of social contact for her health and well-being. The ALDF asserts that lack of companionship causes her "much psychological damage and is inhumane."
Animal-rights activists claim it is because of this legal stipulation that she must have a companion that the Seaquarium attempted to do what they believe is the unimaginable. After Keiko, the orca who starred in the Free Willy films, was released from his real-life captivity in the late 90s and placed in the wild near Iceland, the Seaquarium attempted to recapture him and stick him in the substandard tank that Lolita lives in.
Indeed, one article by The Miami News in 1980 states that after the death of Hugo, "the Seaquarium would have to go as far as Iceland to find one" because the United States banned the capture of orcas for entertainment purposes but allowed them still to be brought in. The release of Keiko, an already trained orca, fit the bill.
According to one article published in 2002, "The Miami Seaquarium says Keiko, the orca that starred in the 'Free Willy' movies, needs rescuing from the wild before he starves or is injured by humans who have flocked to the fjords of Norway to see him."
However, Keiko did not starve. Neither was he injured by humans. After nearly five years out of marine park captivity, he died of natural causes (presumably pneumonia). He was 25, just shy of the 30-year-old life expectancy for male orcas. Hugo, on the other hand, who was held in captivity at the Seaquarium from 1968 to 1980, died at age 15.
Though Seaquarium has not challenged any of the assertions in the complaints filed by the ALDF, the USDA asserts the only issue the court needs to decide is whether the AWA "requires a demonstration of compliance prior to renewal of a previously issued license."
The issue at hand: Since the statute explicitly addresses only issuing licenses, did the agency properly create its own process of renewals to fill in the gaps of the law?
The USDA asserts in court that under its implementing regulations, it is prohibited from making a determination as to whether a park is in compliance because of the renewal process that the agency set up.
The USDA says that when deciding to renew a license, the only factors the agency is allowed to consider are whether the applicant (1) paid the applicable renewal fee, (2) submitted a "report" with the number of animals the park has, and (3) included a signed certification that, "to the best of its knowledge and belief, [the exhibitor] is in compliance with the regulations and standards and agrees to continue to comply with the regulations and standards."
Though several activists pointed out the Seaquarium's several violations over the years, the USDA still allowed Lolita to live In inhumane conditions because of this renewal process, the ALDF claims.
Despite the ALDF's argument on the several violations committed by the Seaquarium, on March 25, 2014, Judge Lenard cited previous court holdings that said it was not up to courts to choose how to fill in such gaps when it came to renewals. Lenard stated that the executive agency charged with enforcing the statute must do this.
She subsequently dismissed the ALDF's case after ruling she found it acceptable that the USDA did not have to ensure exhibitors compliance with the AWA prior to issuing renewals.
According to Lenard's decision:
"... the Court finds that the regulations implemented by the USDA to fill the license-renewal gaps created by the silence in the AWA are 'based on a permissible construction of the statute.' The renewal of a previously issued license is not an issuance of a license... It is merely the procedural mechanism allowing for the continuation of an issued license. The USDA chose to promulgate a renewal process requiring certification without demonstrating compliance."
Now the ALDF has taken the lawsuit to the 11th Circuit Court of Appeal because the organization says Lenard did not state how the agency's interpretation to "fill in the gaps" ensures that animals used in exhibits are afforded with continuous humane care and treatment, as is expected with renewals.
According to the ALDF, the USDA's current renewal process makes the AWA meaningless because the Seaquarium can obtain a "renewal" every year, no matter how "egregious" its violations of the law are, by simply submitting the modest renewal fee, reporting on the number of animals it has, and certifying compliance -- a process that, again, the USDA itself has found "inherently unreliable."
The agency's interpretation of the statute also makes no sense, the ALDF says, because the USDA is prohibited from denying a license renewal to an applicant whose facility may be in flagrant violation of the AWA, but at the same time it can "terminate" a park's license if the applicant fails to send the renewal fee on time. According to the ALDF, "It defies credulity."
What further baffles animal rights groups is how the USDA can issue renewals to the Seaqarium when APHIS "randomly" inspects the marine park periodically and its violations should be obvious to find.
In its brief to the 11th Circuit the ALDF argued that:
"The District Court accepted as true that Seaquarium is violating that AWA standards in myriad ways. Therefore, because Seaquarium is in violation of several AWA standards, the USDA simply has no authority to continue to issue this facility's license under the statute. Accordingly, the agency's decision to renew Seaquarium's AWA license, and its pattern and practice of routinely renewing Seaquarium's AWA license each year, violate the plain language of the statute and hence are 'not in accordance with the law'..."
However, APHIS responded that it found no violations by the Seaquarium in its last yearly inspection of the facility. Currently, APHIS does not recognize Lolita's tank as being substandard.
Now it is up to the 11th Circuit Court, which is based in Atlanta, to rule whether the ALDF's case should be reviewed again by the lower court:
"The 11th Circuit won't be ruling on whether her tank has to be improved," said Liebman. "The appeal is limited to the question of whether the trial court erred in dismissing the lawsuit, so if we win, the case will go back to the trial court for further proceedings. That's when we'll have the opportunity to prove that her enclosure violates the AWA."
According to the animal rights organization, the lower court failed to consider that the agency's renewal process, by which it ignores the noncompliance of the Seaquarium with the AWA standards, is inconsistent with the purpose of the AWA-- to "ensure that animals... are provided [with] humane care and treatment."
The ALDF says that the agency's renewal interpretation deprives the statutory provision "of virtually all effect" and must be rejected as unreasonable.
However, the Seaquarium signs off that its facility does meet the minimum standards of the AWA in that Lolita is placed with white-sided dolphins, is applied sunscreen and her tank is larger if the crescent-shaped concrete platform in which trainers perform on at the center is not considered in official measurements. However, Lolita cannot swim through the concrete barrier and ALDF believes the tank would still not meet the minimum standards outlined in the AWA.
Another factor that may help the ALDF in retiring Lolita is that recently NOAA Fisheries declared her endangered. Though her status does not officially go into effect until May 11, animal-rights advocates believe it may help in future litigation regarding her captivity because of the protections the Endangered Species Act affords to listed animals. However, it remains unclear how these protections will interact with her ongoing captivity.
As Lolita gets older there remains the chance she may die doing tricks in captivity, even while the legal battle to urge her retirement still wages in court.
"I think there would be public outrage if she died in her tank. It would be a tragedy," concluded Liebman. " I cannot imagine that being good PR for the Seaquarium."
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