Local animal care experts also told New Times that the AWA is outdated, particularly its decades-old standards of treating captive animals, especially in the case of space requirements for large mammals.
The law requires that an orca's tank have Minimum Horizontal Dimension (MHD) of at least 48 feet (twice the length of the largest orca specimen). That is to say, the diameter of the largest circle that could be inserted within the confines of the pool must be at least this big. However, animal rights activists condemn even the required MHD as being far too small because in the wild, orcas swim up to 100 miles per day. Furthermore, in Lolita's case, a "work island" in the middle of the tank obstructs the open area where Lolita can swim. Activists say that given the obstruction, the Seaquarium is not satisfying the legal requirement for tank size. Officials have given mixed responses when pressed about this but continue to allow the Seaquarium to operate. For most of her 45 years at the Seaquarium, Lolita has performed three times a day. Lolita is about 21 feet long.
"What happened 20 years ago does not apply to today’s methods of welfare and husbandry," said Rachél Watkins Rogers, Zoo Miami's Registrar and Records Coordinator. "Over time, as we learn more about the animals in our stewardship, the knowledge base and understanding of our animals evolves."
Some activists have already urged lawmakers to update the AWA. Others are skeptical updates will help. They argue that officials at the Animal and Plant Health Inspection Service (APHIS), the part of the USDA that oversees the treatment of captive marine mammals, arbitrarily enforces the law anyway and point to a recent development regarding Lolita's tank.
In March, APHIS officials told New Times that Minimum Horizontal Dimension (MHD) “is calculated only for those areas of the pool that are unobstructed and meet the depth requirements.” However, later in the spring APHIS officials began singing a different tune. “… Unless it is detrimental and the enclosure meets AWA requirements, obstructions are permitted,” said Tanya Espinosa, the public affairs specialist for the government agency.
Delcianna Winders, a lawyer for the People for the Ethical Treatment of Animals (PETA), told New Times that the AWA does not say concrete obstructions are allowed in marine mammals' tanks. New Times asked where in the AWA it explicitly states obstructions to measurements are allowed; the APHIS officials, however, could not offer a legal reference.
New Times then asked to talk with an APHIS inspector to ask how she/he usually measures MHD, as inspectors in the past have had clear concerns ignoring obstructions in measurements, but Ms. Espinosa said APHIS officials would have to “decline” our request to speak with such inspectors.
Local activists say government officials have been sending out mixed messages regarding how measurements are calculated in terms of the living space requirements of captive dolphins. In the "special case" of the tank holding Lolita, they say it is based
“They have been rewriting the Animal Welfare Act for the Miami Seaquarium without Congressional notification or approval. They've taken it upon themselves to change how a straight line for living space is measured rather than enforce the law," said Broward resident Russ Rector, a former dolphin trainer. "What they are saying does not apply to any other facility except the Miami Seaquarium. Why is APHIS doing this for one exhibitor of the thousands they are in charge of?"
Rector said he believes that APHIS officials are trying to cover up a "bad decision" made by C. Ron DeHaven, the former deputy administrator of animal care for APHIS and the current vice president of the American Veterinary Medical Association, who alluded in a 1999 letter to the Miami Seaquarium that five-foot-thick concrete barriers within MHD area were allowed, despite the obvious impediments animal rights activists say such objects might have on captive dolphins.
This interpretation of the law, Rector says, allowed Lolita's tank to be approved.
New Times has inquired what "detrimental" means in regard to obstructions. We have not received an answer yet from APHIS officials.
Meanwhile, the Seaquarium provided this statement:
The Miami Seaquarium, and its parent company Palace Entertainment, are extremely pleased by the Court's decision granting summary judgement to Miami Seaquarium—thereby rejecting and dismissing all of PETA's claims.
We are vindicated by the Court's highly detailed reasoning and holding that there is in fact no harm or harassment to Lolita. Miami Seaquarium has lovingly cared for Lolita for over 45 years, and will continue to give her world class care and attention at her home here in Miami.
Lolita plays an important role in the mission of Miami Seaquarium to educate the public about the need to conserve the marine environment and its residents. We know firsthand the educational and inspirational experiences children and adults have when they see Lolita, our dolphins and the other marine mammals at our facility. More than 65,000 school children and 600,000 guests visit Miami Seaquarium each year to learn about Lolita and the other residents of the sea.
Lolita will continue to be an ambassador for her species from her home at Miami Seaquarium.