However, the Animal and Plant Health Inspection Service (APHIS), the government agency in charge of enforcing laws protecting animals, has responded for years that her tank does meet space requirements because, according to their understanding of the Animal Welfare Act, measurements for space don't have to be unobstructed.
In March, though, Lyndsay Cole, the assistant director of legislative and public affairs for APHIS, told New Times after triple-checking with experts that space requirements, specifically for Minimum Horizontal Dimension (MHD), are actually strictly measured without obstructions.
“The MHD is calculated for only those areas of the pool that are unobstructed and meet the depth requirements,” she said.
Soon after Cole made her statement, APHIS officials seemed to change their story. Another agency representative named Tanya Espinosa, a public affairs specialist, told New Times that obstructions, like the concrete work island in Lolita’s tank, were permitted as long as they were not “detrimental.”
When asked, Ms. Espinosa did not cite specific regulations which allow for obstructions in dolphins’ tanks. She also did not state who determines when an obstruction becomes "detrimental."
Espinosa declined New Times requests to interview an APHIS inspector to learn how space requirements are routinely measured. Five months later, though, it seems Cole's initial statement was correct.
The Marine Mammal Commission (MMC), a government body that works with Congress to protect animals, has backed Cole's words by recently stating clearly that when it comes to tanks carrying orcas and other dolphins, measurements for minimum space requirements are to be unobstructed; otherwise, the agency says, the regulations are “rendered meaningless.”
"... The existing regulations specifies that enclosures must be constructed and maintained so that the animals contained within are provided sufficient space, both horizontally and vertically, to be able to make normal postural and social adjustments with adequate freedom of movement, in or out of the water," wrote Rebecca J. Lent, the executive director of the commission. "All minimum space requirements should be met in an unobstructed manner, otherwise the definition of 'minimum' would be rendered meaningless."
Lent also said that APHIS should "clarify" to the public that "all minimum space requirements for all species/groups under section 3.104 of the regulations (which Lolita is a part of) are to be calculated and based on unobstructed horizontal distances and depths."
Animal advocate Russ Rector, the Fort Lauderdale man who once led a devastating campaign against Ocean World in the '90s, has filed a new complaint urging APHIS to remeasure Lolita's tank in light of the MMC's statement regarding measurements.
"In light of the May 4, 2016, Marine Mammal Commission’s letter to APHIS saying that minimum space requirements are to be measured without obstructions, I ask that APHIS have an investigator please use that complicated instrument called a tape measure and measure the whale Stadium’s tank as it should be measured," Rector quips in his complaint. "Does this tank meet MHD regulations for an Orca?"
This complaint may pose a dilemma for Seaquarium. If an investigator finds Lolita’s enclosure does not meet unobstructed space requirements, then the nearly 50-year-old orca can no longer legally be permanently housed in the present stadium whale tank.
It is a fishbowl-shaped space that a federal court judge says offers "less than ideal conditions" for an orca to live.
New Times has reached out to APHIS and the Miami Seaquarium. This article will be updated when we get a response.
UPDATE: In response to the Marine Mammal Commission's statement that measurements be calculated without obstructions, Tanya Espinosa, the public affairs specialist at APHIS, told New Times that she is standing by her statement that the Animal Welfare Act allows for obstructions.
"The Marine Mammal Commission is not the agency responsible for enforcing the Animal Welfare Act. I stand by my earlier statements regarding the island in the enclosure. The Marine Mammal Commission’s mission and authorities are very different from APHIS. We have worked closely with the Commission for over 20 years. They have submitted comments on Docket #APHIS-2006-0085, the proposed rule, and we will review and consider them, as we do all submitted comments. Our official response to all comments will be in any final rule that is published in the Federal Register."
Though the Marine Mammal Commission does not have enforcement power, as a government body that works with Congress it does have the authority to interpret the regulations that APHIS officials enforce.
In response to this New Times piece, Dr. Lent, the executive director of the commission, remarked that she hopes APHIS officials clarify to the public that "all minimum space requirements" are calculated based on "unobstructed" measurements.
According to federal courts, "The Marine Mammal Commission is 'a federal entity possessing expertise on issues relating to the protection of marine mammals.'"