Twenty years ago, authorities noticed that, because of a quirk in the law, the federal agency that's supposed to be protecting animals lacked the power to refuse license renewals to facilities, so long as the facility declared that it was following the law. Nothing has been done to change that, and activists say animals like Lolita, the Miami Seaquarium's orca, are suffering because of it.
In a 1995 internal review, the Inspector General (OIG) of the USDA described the USDA's Animal and Plant Health Inspection Service (APHIS) as not adequately enforcing the standards of the Animal Welfare Act because it did not have the authority, under its protocols, to decline a license renewal. The OIG urged APHIS to draft legislation, to be approved by Congress, that would remedy this. However, APHIS has apparently never followed through.
The Animal Welfare Act (AWA) states that no exhibitor's licenses shall be issued without a demonstration of compliance with AWA standards. But it does not explicitly address renewals.
APHIS officials have claimed they cannot deny the Seaquarium’s annual license renewal because according to its renewing policies, an exhibitor needs only to report the number of animals on display, pay a renewing fee, and sign off that its facilities meet the standards of the AWA —- rather than prove compliance before a license renewal.
The Animal Legal Defense Fund (ALDF), the People for the Ethical Treatment of Animals (PETA), and the Orca Network filed a lawsuit against APHIS, alleging that the Miami Seaquarium committed several violations of the law in regard to the captivity of Lolita the orca, so the government agency was wrong to renew the marine park's license. The activists have said that Lolita's tank is too small
— a point that is in contention. (Her tank is the required size but has a platform that obstructs her from having free range to swim. APHIS issued a waiver allowing the platform, and the activists allege that no legal authority exists for any such made-up waiver.)
Last year, when Federal Court Judge Joan Lenard heard the animal advocacy agencies lawsuit, she sided with APHIS and the Seaquarium and stated that, since the legal speculation does not apply to renewals (which were not explicitly mentioned in the AWA), the agency had the right to develop a renewal process that did not require an inspection beforehand to prove compliance.
Animal advocacy groups have opposed this ruling and are in the process of appealing Lenard's decision.
"PETA and the other plaintiffs in this case do not dispute that renewals are not expressly provided for by the AWA and that the USDA has the authority to adopt its own renewal process — but that process must be consistent with the plain language of the AWA, which provides that no license shall be issued to an applicant who is not in compliance with the AWA standards, whether it be for an initial license or a renewal," Winders said. "The USDA ignores this directive and allows Lolita's unlawful conditions to persist both when it issues renewals annually and during periodic inspections of the Seaquarium."
The appeal from PETA, ALDF, and the Orca Network was heard in the 11th Circuit Court of Appeals in downtown Miami on March 24, and the court could issue its opinion at any time.
Lyndsay Cole, assistant director of public affairs for APHIS, told New Times
that the agency takes its duty of upholding the AWA's standards seriously. "The Animal Welfare Act was written to ensure the health and wellness of the animals covered under its regulations, and we take our role very seriously," she said. "When licensees renew their licenses, they are required to provide certain information about the facility as well as paying a licensing fee. They are then required to uphold the requirements of the AWA, which is ensured through unannounced inspections at least once per year. If they fail to uphold the requirements, they are required to correct any noncompliances or face enforcement action."
In response to the allegations, the Miami Seaquarium has told New Times
that is has always respected the law. Since APHIS has not recognized the violations, the marine mammal park has never received citations for any of the alleged offenses.
"Contrary to some erroneous allegations, Miami Seaquarium has always adhered to the federal government's rules and regulations. Lolita's habitat has been certified by the USDA as '... meets the intent and the letter of the law with regard to space requirements for orcas.' They also state that '... shade and protection from weather is provided by the stadium seating around Lolita's pool...' The USDA goes on the say that her habitat, 'far exceeds the minimum requirement established by the AWA regulations."
Activists believe there are possibly thousands of animals in captivity that are at risk of being treated inhumanely because, they say, the government is not adequately enforcing the AWA
Activists have demanded that a congressional oversight committee review APHIS' performance
to find out whether its officials had the right to originally waive the work island in Lolita's tank or continue to ignore the concrete barrier in determining MHD. They hope that if APHIS is called out in this specific case regarding Lolita's captivity that it may spur lawmakers to further scrutinize the government agency's overall performance.
PETA has met with several members of Congress on what it calls APHIS' "failings" and has vowed to help obtain such a review.