Judge Dismisses Lawsuit to Free Lolita the Orca

Ever since Lolita, the sole orca at the Miami Seaquarium, was declared an endangered species last year, activists have pushed to retire her by suing the marine park for violating protections of the Endangered Species Act (ESA).

In May 2015, Howard Garrett, the president of the Seattle-based Orca Network, along with the People for the Ethical Treatment of Animals (PETA) and the Animal Legal Defense Fund (ALDF), filed a lawsuit against the Seaquarium, alleging that the employees at the marine park were “committing harm” to a protected animal.

Garrett and many other activists say the nearly 50-year-old whale’s life is threatened by being kept in a tank. They say animals face "unnatural" stress in marine parks and believe the killer whale should be left alone, not encouraged to do tricks.

Federal judge Ursula Ungaro, however, dismissed the case yesterday, stating that activists must take up the issue with lawmakers to update laws regarding animal welfare in order to "improve Lolita's less than ideal [living] conditions."

She wrote in an order that "the conditions in which Lolita is kept, and the injuries the Plaintiffs have presented to the Court, are largely addressed under a different federal law — the Animal Welfare Act (AWA). Under these facts, Plaintiffs remedy is not under the ESA, but rather with Congress, where their efforts to improve Lolita’s less than ideal conditions can be addressed through legislation."

Garrett said he believes the judge's statement is an "incredibly narrow interpretation of the ESA" and that Lolita would need to be dead or almost dead for courts to hear the case. Garrett told New Times that "the judge applied her unsupported belief that Lolita's life is not threatened by her captivity. This [dismissal] means we need to appeal more directly to the owners of the Seaquarium."

Pompano Beach resident Wendy King, a local animal rights activist who is a supporter of the Orca Network, said that she is stunned the case was thrown out, especially since public opinion has shifted in recent years on whether it is ethical to keep orcas in captivity. 

"Courts should use common sense and try to improve the lives of those who can’t speak for themselves, like Lolita, instead of siding with big businesses," King said. "Why is Miami Seaquarium allowed to violate basic animal welfare laws? Why is there no enforcement?" 

Some other local animal rights activists, though, are not happy with the Orca Network’s “endless” lawsuits and said they feel it is best to follow Judge Ungaro's suggestion. 

“We at Animal Activists Network would rather see resources directed toward lobbying Congress to change the ESA status for Lolita than sunk into funding endless litigation,” said Jeff Geragi, the president of the Animal Activists Network. “Such lawsuits are simply no longer viable. Once again, the courts have ruled this is a matter for Congressional action, not the law courts.”

Geragi said he believes that to make a “bona fide” effort to retire Lolita, advocates for marine mammals must put pressure on lawmakers to update the AWA and the ESA.

“We implore the marine mammal community to redirect its resources toward making a bona fide effort to implement necessary changes to the current ESA status,” he said. “Only in this way can Lolita have a fighting chance at retirement — to an actual sea pen, not the hollow promise of a non-existent ‘sanctuary.’”

Nevertheless, King said she and her group will keep demonstrating in front of the Miami Seaquarium with the hope of returning the famous orca to the Seattle area, where she was captured more than 40 years ago.

“Unfortunately the laws protecting whales and other animals have not caught up, and Lolita is paying the price," she said. "[But] we will continue to protest Miami Seaquarium, their parent company Palace Entertainment, and Arle Capital, their holding company — until Lolita is home.”

Here is the judge's order: 

UPDATE: The Miami Seaquarium's statement.

"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 “take” of Lolita occurring, either by harm or harassment. 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. Each year, more than 65,000 school children and 600,000 guests visit Miami Seaquarium to learn about Lolita and the other residents of the sea. We know firsthand the educational and inspirational experiences these children and adults have when they see Lolita, our dolphins and the other marine mammals at our facility.

Lolita will continue to be an ambassador for her species at Miami Seaquarium."
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Jonathan Kendall
Contact: Jonathan Kendall