Lolita the Orca: Activists Lose Court Battle

UPDATE: Though PETA is disappointed with the 11th Circuit Court's ruling, it does not intend to appeal it.

Yesterday was the end of the road in a long court battle for animal rights activists who hoped that the Miami Seaquarium would have its license invalidated and possibly lead to the release of Lolita the orca. Federal judges with the 11th Circuit Court in Atlanta ruled that they will not allow a lower court to rehear the case. 

Under the Animal Welfare Act (AWA), the Miami Seaquarium is required to renew its exhibitor’s license every year with the Animal and Plant Health Inspection Service (APHIS), an agency under the U.S. Department of Agriculture.

Before the marine mammal park’s license expired in 2012, the Animal Legal Defense Fund, a California-based animal advocacy group, sent a letter to APHIS asserting that the Seaquarium’s license should not be renewed because the park’s endangered southern resident killer whale, Lolita, has been living decades in conditions that continually fail to meet the standards outlined by the AWA.

Lolita performs daily in the "Killer Whale and Dolphin Show," and activists assert the tank she lives in is too small for an animal of her size. According to the law, her tank must allow her to swim in a diameter of at least 48 feet, and activists claim that though her tank may measure 80 by 60 feet on paper, in reality it measures only 80 feet by 35 feet due to a concrete work island in the middle of the tank, which prevents the 20-feet orca from having the minimum space necessary to "posture herself naturally."

Activists also assert her "fishbowl" has no protection from the intense South Florida sun and are concerned about the long-term effects of the zinc oxide Seaquarium workers apply to her skin as sunscreen. They also say according to the law she is supposed to have the company of another orca to socialize with. She has has not seen another killer whale since 1980, when her mate, Hugo, died of an aneurysm from ramming his head into the small tank's walls. Lolita currently shares her tank with Pacific white-sided dolphins, but activists believe they offer as much social interaction to her as a gorilla would offer a human. 

Yet, the only requirements for the Seaquarium to renew its license are paying a renewing fee, filling out a report detailing the number of animals exhibited at the park, and signing a certification of compliance (simply relying off a facility manager’s word rather than annual inspection).

Frustrated that APHIS officials were overlooking “blatant violations” of the AWA, the ALDF, along with the People for the Ethical Treatment of Animals and the Orca Network, filed a lawsuit against the government agency, hoping a court would settle the issue and deny APHIS from renewing the Seaquarium’s license, based on the theory that the AWA requires an inspection to prove compliance for both new licenses and license renewals.  

However, in March 2014, Federal Court Judge Joan Lenard ruled that since the AWA required inspections only for new licenses and did not explicitly address the process of license renewals, the government agency had complied with its own renewal process in respect to the Seaquarium. 

The animal advocacy groups appealed Lenard’s ruling to the 11th Circuit Court of Appeals based in Atlanta. On March 24, the group argued before a three-judge panel at the 11th Circuit Court's satellite office in downtown Miami that the lower court should rehear the case. However, yesterday appellate court released its decision, denying a rehearing and siding with APHIS, despite sympathy for "the plight of Lolita and other animals exhibited across” the United States.

The panel of judges stated that the terms "issue" and "renew" have distinct legal meanings and that if they accepted ALDF's theory that the AWA required inspections to be conducted for both new licenses and for renewals, legal rules differentiating the terms would become "meaningless." 

Interestingly, the court found the plain language of the AWA did not even elucidate whether APHIS could deny a a facility's license renewal "despite knowing that an exhibitor is noncompliant with animal welfare standards." Despite this lack of clarity regarding license renewals, the 11th Circuit Court found APHIS had the right to devise its own renewal process.

According to Judge Susan Black, who wrote the court's opinion, it is ultimately up to Congress to change the government agency's renewal requirements. 

"We cannot say USDA violated the AWA by renewing Seaquarium's license through its purely administrative scheme... Only Congress, not this court, possesses the power to limit the agency's discretion and demand annual, substantive compliance with animal welfare standards."

Moreover, the court found that the agency's renewal process allowed government officials to steward the agency's limited resources in ways they determined to be appropriate. 

"USDA could not annually inspect the facilities of every zoo, aquarium, or other exhibitor across the country or initiate license termination proceedings for every violation, no matter how minor," Black stated. 

In response to the ruling, Jared Goodman, the director of animal law for PETA, weighed in with New Times, expressing the organization's disappointment with the 11th Circuit Court's ruling. 

"The U.S. Department of Agriculture's (USDA) automatic renewal of the Miami Seaquarium's license to exhibit Lolita has allowed the Seaquarium to keep her in a tank that is far too small, without protection from the burning sun and deprived of contact with another orca for 35 years—all in violation of the minimal standards of the Animal Welfare Act," he said. "Under this ruling, the USDA will continue its absurd practice of rubber-stamping license-renewal applications—even when it knows that the applicant is in egregious and flagrant violation of federal law—and animals abused for 'entertainment' will continue to pay the price. PETA and ALDF won't stop fighting for Lolita to be released into a seaside sanctuary in the waters from which she was forcibly taken 45 years ago."

Despite the sobering news for activists, who have tried for years to improve the quality of life for Lolita, there have recently been significant "wins" for the nearly 50-year-old orca. In February, the National Oceanic and Atmospheric Administration declared her to be protected under the Endangered Species Act, just like her wild Southern Resident counterparts and on June 1, the Miami Seaquarium announced it would no longer allow its trainers to ride the killer whale due to safety concerns raised by Occupational Safety and Health Administration. Activists believe that trainers "riding Lolita like a surfboard" was harassment of an endangered animal and that it, indeed, put trainers at risk of being harmed or even killed.