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Lolita the Orca Classified as Endangered; Groups May Now Sue to Force Her Release

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The Magic City's biggest star, Lolita the orca at the Miami Seaquarium, has been entertaining crowds of tourists and locals with her incredible splash for more than 40 years. Today, Lolita, one of the oldest living orcas in captivity, has come one step closer to swimming out of the limelight and -- maybe -- into the open ocean, because NOAA Fisheries has just declared her as endangered.

Since 2005, the Endangered Species Act (ESA) specified that its protections of Southern Resident killer whales (which Lolita is a part of) did not apply to killer whales that were captive. However, in 2013, the People for the Ethical Treatment of Animals (PETA) submitted a strongly worded petition in unison with the Orca Network and the Animal Legal Defense Fund to NOAA Fisheries, urging that the government agency amend its listing of Southern Resident killer whales, of which there are less than 80 in the world, to include Lolita.

See also: March For Lolita at Virginia Key Beach Park (Photos)

PETA argued that:

"Lolita's exclusion preserves only her commercial value -- a clear violation of the ESA, which prohibits economic considerations as a basis for listing decisions... Lolita, if protected, could contribute significantly to vital research needed to sustain the wild SRKW population. If she remains excluded, Lolita will contribute only to Seaquarium's profit margin."

PETA also pointed out that, on its face, the ESA treats all members of a listed endangered species the same, regardless of whether they are captive. NOAA Fisheries conceded in January 2014 that it cannot exclude captive individuals of an endangered species and warranted a change to the 2005 listing language to include captive individuals.

However, before the organization could apply this finding to Lolita, studies had to be done to prove that she was, in fact, a genetic member of the protected Southern Resident killer whale population. The findings resulted in a proposal published January 27, 2014, to extend protection to Lolita.

"Lolita shares both genetic and acoustic characteristics with the members of the Southern Resident killer whale DPS found in the wild. Based upon this best available science we confirm that Lolita is a member of the Southern Resident killer whale population and as such she should be included as a member of the Southern Resident Killer Whale DPS... Our proposed rule would amend the language describing the Southern Resident killer whale DPS to remove the exception for captive whales, and, if the proposal is finalized, Lolita would then be included under the endangered classification."

To ensure that the final decision was "as accurate and effective as possible," NOAA Fisheries solicited comments over the past year from the public and the scientific community to determine whether this planned amendment was appropriate.

Today, NOAA Fisheries upheld its 2014 ruling, stating:

"As presented in the proposed rule we find that Lolita's captive status, in and of itself, does not preclude her listing under the ESA. Accordingly, we are removing the exclusion for captive whales in the regulatory language describing the Southern Resident killer whale DPS. The best available genetic information and sighting history of killer whales supports recognizing Lolita as a member of the Southern Resident killer whale population and, as such, is not excluded from the listed Southern Resident killer whale DPS."

Lolita, whose original name is Tokitae (meaning "beautiful day" in Coast Salish) has been a captive at the Seaquarium for more than 40 years, in a tank that violates federal laws because it is too small.

See also: Miami Dolphins Sever Business Partnership With SeaWorld

In 1970, she was taken from her pod as a calf near Puget Sound in a capture that left at least four other young orcas dead. According to reports, M-80 bombs were used to scare the orcas; the mothers and their calves let out piercing screams as they were separated. The surviving calves from the roundup were sent to parks around the world. However, they all died within five years of the capture, with the exception of Tokitae.

"She was kidnapped from her home in the ocean by horrible people and then sold to the Seaquarium," said Real Housewife of Miami and animal rights activist Joanna Krupa, who attended the Miracle March for Lolita on January 17.

Krupa's sentiments are echoed by former HLN anchor Jane Velez Mitchell, an animal rights activist and editor of Jane Unchained, who also attended the march last month:

"Lolita/Tokitae's story is a crime story. Simply put, it's an abduction and hostage story. This innocent, intelligent animal was with her mother when kidnappers, armed with explosives and high speed boats, inflicted a reign of terror on her pod, ripping her from her mother. She is America's longest held hostage."

For decades, Lolita has been performing four shows a day, almost year-round. Now that she has been declared as endangered, animal rights activists hope her new found status will help her retire from her life of entertaining others and rejoin her mother, Ocean Sun, who is still believed to be alive at 87 years of age.

Many animal rights' activists believe the reunion between the mother and daughter orca will be a "beautiful day" indeed, and are now decrying her continued captivity louder than ever.

"It is irresponsible and inhumane to keep an endangered Southern Resident killer whale like Lolita at the Seaquarium because this is the first time in more than 40 years Lolita has a chance for retirement," said Ric O'Barry, who used to work at the Miami Seaquarium and helped train the original Flipper.

O'Barry, who used to catch dolphins in Biscayne Bay and sell them for the Seaquarium in the 60s, believes wholeheartedly that captivity kills dolphins (which orcas are).

When Tokitae first came to Miami, she was intended to be the mate of a lonely orca named Hugo. However, after ten years of performing with each other, Hugo was found dead one day in March 1980. According to the orca's autopsy, he died of an aneurysm he suffered after hitting his head on the walls of his tiny tank. Some animal rights' activists have called it a suicide.

Along with Hugo, O'Barry says that nearly 100 other dolphins have died at the Seaquarium through the years. He says there have been many Flippers, each taking the place of the last to entertain the unknowing public.

However, Lolita has outlived them all, not seeing another orca for the past 30 years -- an achievement that Velez Mitchell believes is due to her incredible spirit.

"There are some sentient beings, both human and animal, who simply have an extraordinary will to live," she says. "Lolita is one of them."

According to the NOAA Fisheries, the listing does not mean that Lolita will be immediately released from the Seaquarium.

"At this time, the Miami Seaquarium has not submitted a proposal to move or release Lolita. Any permit process would include rigorous review by the scientific community, the Marine Mammal Commission, and the public, and be subject to an associated National Environmental Policy Act (NEPA) analysis, prior to action being taken."

The government agency also stated it is concerned about any experimental release because there are a number of risks associated with releasing Lolita into the wild, such as possible disease transmission, her inability to forage since she has been hand-fed for many years, and whether she will be able to integrate with her pod. NOAA Fisheries is also concerned how her reintegration with her family may impact her pod.

However, animal rights' activists have proposed that before being released into the wild that she would first live in a proposed sea pen in the San Juan Islands, in Washington state, before she is released. Animal rights activists contend that if she does not show promise of being rehabilitated, she could stay in the pen, which they say is at least significantly larger than her current tank at the Seaquarium.

If the Seaquarium does not choose to retire Lolita, then the Animal Legal Defense Fund (ALDF), along with PETA, will likely sue to try to force her release. The ALDF already has an ongoing court case, Animal Legal Defense Fund v. Elizabeth Goldentyer, USDA, and Marine Exhibition Corporation, regarding Lolita's captivity.

"We love you Lolita, and we are fighting for your freedom, and we will win, and you will be with your family very soon," concluded an emotional Krupa. "Too many people care about you, and your dream of being free is coming true."

Note: Efforts were made to have the Miami Seaquarium comment on the news of Lolita's new endangered status, but the park has not yet contacted The New Times.

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