In 2005, NOAA officials listed Southern Resident killer whales (SRKW) as endangered due to their paltry numbers. According to the government agency, the capture of nearly an entire generation of orca calves in the late 1960s to early '70s for entertainment purposes had a dire effect on the SRKW population.
Because 47 whales were captured in the 1960s, the SRKW population had grown to only 83 whales in 2003. This segment of the [orca] population was listed as endangered under the Endangered Species Act (ESA) in 2005.
Though Lolita, who the last surviving SRKW of the nearly 50 captured, is protected by some rights under the Marine Mammal Protection Act (MMPA), she, as a captive orca, was specifically excluded from the protections afforded to her wild counterparts until several animal rights groups, led by the People for the Ethical Treatment of Animals (PETA), petitioned NOAA to remove the exclusionary language of the ESA listing.
In early February, after a one year review, NOAA officials conceded that "Lolita's captive status, in and of itself, does not preclude her listing under the Endangered Species Act." NOAA officials stated the new designation, however, could not force the Miami Seaquarium to relocate her because she is the company's possession.
However, nobody knows for certain how the new protections, which go into effect on May 11, will affect how she is treated at the Miami Seaquarium. For example, the question of whether her trainers will be allowed to continue riding her (a focal point of her show that drives the spectators wild) is currently under scrutiny by NOAA officials.
NOAA Director of Public Affairs Connie Barclay tells New Times, "Under the ESA and the MMPA, generally speaking, the same protections are afforded to both animals in the wild and those in captivity (the public cannot touch or ride Southern Resident killer whales in the wild). However, circumstances in captivity might not always be analogous to those in the wild... Regarding endangered marine mammals in captivity and the legality of people riding them, I want to tell you that this whole issue regarding Lolita is a new issue for us. Lolita is the only endangered marine mammal in captivity that is performing. Our attorneys are looking at this, but at this time, there is just nothing more to say."
Other NOAA officials told New Times they did not believe it would be possible for anyone to ride an endangered SRKW for entertainment purposes because of the February ruling extending protections to captive SRKWs. Such interference, in technical lingo, is considered "take" (the indirect or direct harassment of an endangered animal) and is a violation of the ESA.
While its legal counsel determines how the law should be applied for Lolita's circumstances, NOAA's officials told New Times to check with the U.S. Fish & Wildlife Service to see how it applies the ESA to other endangered marine mammals in captivity because Lolita may be treated similarly.
Officials at the Florida Fish and Wildlife Conservation Commission (FWC) told New Times that the federal law strictly prohibits the public from touching or physically mounting manatees, another endangered marine mammal. FWC's Tallahassee office also stated that manatees in captivity are not to be harassed for entertainment purposes (performing tricks) or for "any purposes" because they are protected under the ESA.
The only legal allowances for humans to touch or interact with the endangered marine mammals is if they are part of a rehabilitation team or staff at a rehabilitation center, in which case they would be permitted to feed and move the manatees, as well as offer them medical care. However, even the staff is prohibited from riding the manatees.
"Riding manatees is not appropriate behavior for anyone," said Lauren McCormack, FWC's Public Information Coordinator. "Please report harassment of wildlife to our hotline..."
PETA's attorneys told New Times that if NOAA officially determines riding Lolita would be considered "take," and if the laws protecting her wild counterparts and other endangered marine mammals are equally applied to her as well, then the animal rights organization will continue to explore all possible options to ensure the famous orca receives all the protections afforded to her.
"Riding an endangered marine mammal is illegal because the law prevents harassing a member of an endangered species," said Jared Goodman, the director of animal law for PETA. "She simply should not be ridden like a surfboard the way she currently is by her trainers."
If NOAA's legal counsel does not find legal stipulations that would limit the protections afforded to endangered animals in captivity when it comes to "take," then the stringent ESA protections will be applied to Lolita and nobody, not even her trainers, would be allowed to interact with her in any way that would be considered harassment, animal activists say. This would render the current format of her show inoperable.
Should this happen, however, it would not affect how orcas at other marine mammal parks are treated because Lolita is the only Southern Resident killer whale in captivity. The rest of the killer whales used for entertainment purposes come from other groups of orcas.