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Justice for Lolita. Taking Her Fight with APHIS to the Next Level.

June 7, 2011

After many years of writing letters to the U.S. Department of Agriculture’s Animal and Plant Health Inspection Services (USDA-APHIS), the agency in charge of enforcing the Animal Welfare Act (AWA) regulations on keeping marine mammals in captivity, it seems we keep hitting our heads against the proverbial wall. What seems obvious to a normal person who sees Lolita, the captive orca from the Puget Sound round ups, is that her housing situation at Miami Seaquarium is indeed not in regulation with current AWA standards.

The true size of Lolita’s illegal tank at Miami Seaquarium is shown in this graphic.

However, APHIS continues to state it is.  As it becomes more and more evident that they are seemingly not interested in enforcing the regulations of her substandard tank, protective shade, and keeping her with one of her kind and simply saying everything about Lolita’s confinement at the Miami Seaquarium is up to standard; an investigation is being demanded into a federal regulatory agency’s lack of enforcement.  (More on their inaction here.) 

Thanks to caring and concerned citizens, such as Wendy Cooke and Kelly J. Conner, who continue to keep writing letters asking APHIS to enforce the regulations that are set in place and showing clear-cut proof her tank dimensions are in fact illegal, we can come to the conclusion that APHIS is either incompetent, or just ignorant to the facts here. Which is it? Read on and decide for yourself.  Then help us take action.

For over four decades Lolita (Tokitae) has been on display at the Miami Seaquarium in a concrete pool just 35 feet wide by 80 feet long, in direct violation AWA. Captured in 1970 from her family pod in Washington State, Lolita is confined in a tank that violates at least four provisions of the AWA. Wendy Cooke of Sacramento, California, in collaboration with Orca Network, The Orca Project, and a broad range of groups and individuals nationwide, has sent a letter to the USDA’s Office of Inspector General (OIG) requesting an investigation of the failure of the USDA’s Animal and Plant Health Inspection Service (APHIS) to take enforcement action against these AWA violations.

This graphic, obtained from APHIS through the Freedom of Information Act shows that APHIS is fully aware that the MHD calculation is 35 feet. 13 feet less than the minimum requirement.

The most egregious violation concerns the minimum horizontal dimension of Lolita’s tank. The AWA requires that the width of an enclosure for a whale must be twice the whale’s average adult length. For a killer whale that’s 24 feet, so the required minimum horizontal dimension is 48 feet according to APHIS. Yet the distance from the front of the Seaquarium’s whale pool to its opposite wall is only 35 feet—a clear violation of the Animal Welfare Act.

APHIS has attempted a variety of evasions of its responsibilities over the years by using the following contradicting explanations. Examples from Wendy Cooke’s experience in an attempt to justify the legality of Lolita’s tank size are these:

1. In a letter dated March 3, 2010, APHIS’s Deputy Administrator of Animal Care, Dr. Chester Gibson, wrote that Lolita’s tank measures 60 x 80 feet. APHIS’s Minimum Horizontal Dimension (MHD) measurement of Lolita’s tank, he stated, did NOT include the medical pool behind the concrete work station.

From this archival photo, it is clear the workstation wall, which separates the show pool from the back medical pool is SOLID.

2. In a conversation on March 14, 2011, with APHIS’s Eastern Regional Director of Animal Care, Dr. Elizabeth (Betty) Goldentyer, said that the concrete work station was actually a “floating island” that was “suspended by some sort of pedestal.” According to Dr. Goldentyer, Lolita could swim under the trainer’s platform to the back medical pool, therefore making her tank legally sized. However, Dr. Goldentyer stated that the 60-foot MHD measurement cited by Chester Gibson was from the edge of the main pool to where the gates are connected to the concrete trainer’s platform.

3. Dr. Goldentyer stated in a letter dated June 2, 2011, that the MHD measurement of Lolita’s pool is 60 feet “partially obstructed” by the trainer’s platform. She claimed that “the definition for MHD does not preclude a partial obstruction, such as the island in Lolita’s pool.”

APHIS Regulations clearly exclude gated side pools and medical pools from inclusion in primary housing calculations. The solid work platform with gates on both ends prohibits Lolitas free movement.

On August 04, 2010 the US Department of Agriculture’s Animal and Plant Health Inspection Services said they conducted an inspection of Miami Seaquarium (MSQ) and what they found them in violation of is startling.  “No non-compliant items found during this inspection“.  How is this possible? To the naked eye one can see her pool is not the 60 foot MHD measurement APHIS claims.  If they were indeed there in August of 2010, it would have been clear to see that the trainer’s platform is solid.

In a June 2, 2011, letter to Cooke, Eastern Regional Director for Animal Care Elizabeth Goldentyer, DVM, wrote, “…shade and protection from weather is provided by the stadium seating around Lolita’s pool…” despite aerial photographs showing the entire tank exposed to direct sunlight.

Kelly J. Conner, RN, of Fort Lauderdale, Florida, recently wrote a letter to APHIS bringing attention to the wording of the AWA:

An aerial view shows NO shade protection (other than for guest seating areas) and the 35′ dimension of Lolita’s confinement.

…Lolita’s tank is 80 feet across and 35 feet from the front of her tank to the work station. From the rear portion of the work station to the back of the tank the measurement is 25 feet. While I am going to assume that your office is adding the 35 feet and 25 feet measurement together to come up with a measurement of 60 feet, the fact remains that the regulation clearly states “with a straight line of travel across the center.”

Conner continues,

Paragraph three of your letter to me dated April 21, 2011, states, “We take very seriously any allegations of noncompliance with the AWA.” In that event, I would like some explanation from your office as to why after several decades of complaints, including but not limited to one filed by Humane Society International in 1995 regarding Lolita’s tank, Miami Seaquarium has not been forced to comply with the minimum standards of the law.

Despite evidence of the illegality of Lolita’s tank size, APHIS continues to claim the solid barrier and gates are excluded from the calculations.

The story here is that APHIS has tried, whether deliberately or not, to create a dead-end for the increasing activist pressure by brushing off all our concerns with an “all-is-well-at-MSQ” letter they typically send in response to anyone who questions them in regard to Lolita’s urgent situation.  So, we are taking the fight to the next level and to the Office of the Inspector General (OIG), the USDA internal auditor that has cited the Eastern Regional Division of APHIS for not enforcing the law, not finding violations, and not assessing fines.

On June 6, 2011, Wendy Cooke wrote to the OIG, stating,

With the full knowledge and acquiescence of APHIS, Lolita has been confined for over 40 years in an inhumanely undersized tank that violates several aspects of the Animal Welfare Act:

- Lolita’s tank, which is the smallest orca tank in North America, is 13 feet shorter than is required by the Animal Welfare Act (Section 3.104).

In this photo, Lolita’s length indicates her small confines. Note the crowd is protected from the sun.

- Lolita has no shade to protect her from direct sunlight and no protection from the weather, including hurricanes. Her exposure to sun and weather violates Section 3.103(3)(b) of the Animal Welfare Act.

- Lolita’s pool does not meet the perimeter fence requirements to keep animals and unauthorized people out, nor does it protect her from abuse and harassment by the public. (Sections 3.103(3)(c) and 3.101(2))

-Lolita has not been in the company of another orca since 1980. This highly social animal is subjected to this solitude with the unfounded belief that her dolphin tank-mates are an acceptable replacement for a member of her own species. (Section 3.109 Separation)

The USDA’s OIG has been very critical in the past concerning mismanagement at APHIS and the failures to properly conduct inspections and compliance of AWA regulations. In a 2005 audit of APHIS- Animal Care (AC), the OIG found:

Due to a lack of clear National guidance, AC’s Eastern Region is not aggressively pursuing enforcement actions against violators of the AWA   “We found that regional management significantly reduced its referrals of suspected violators to Investigative and Enforcement Services (IES) from an average of 209 cases in fiscal years (FYs) 2002-2003 to 82 cases in FY 2004. During this same period, regional management declined to take action against 126 of 475 violators that had been referred to IES. In contrast, the Western Region declined action against 18 of 439 violators.” 

But why is there such a vast difference from the Eastern Region where Lolita resides, to the Western region? The OIG report continues:

Click on thumbnail image above to read the USDA’s Office of Inspector General 2005 audit of APHIS failures to enforce regulations

In FY 2004, the Eastern Region employed 17 inspectors (highly trained AC technicians), 29 Veterinary Medical Officers (VMOs), and 5 supervisors/ managers; the Western Region employed 29 inspectors, 25 VMOs, and 6 supervisors/managers. VMOs are licensed veterinarians and conduct inspections of all registered research facilities. Both VMOs and inspectors conduct inspections of licensed facilities (i.e., animal dealers, exhibitors, and other entities). At larger research facilities, more than one VMO may conduct the annual inspection.

In FY 2004, the 100 VMOs/inspectors nationwide were responsible for inspecting over 8,800 facilities. In addition, some inspectors travel hundreds of miles from one facility to the next. Given the limited number of inspectors and the large number of facilities, AC created a risk-based inspection system (RBIS) in February 1998 to better focus AC’s inspection strategy. Under this system, not all facilities are inspected annually. Some facilities meeting the criteria for low frequency intervals are subject to inspection once every 2 years, while others determined to require high frequency inspections are inspected at least 3 times annually.

And that is just the tip of the iceberg. They go on to cite many of the same problems that we have been faced with concerning APHIS.  Here is another interesting read relating to APHIS’s failures in inspecting plants and crops.  They may as well be talking about Killer Whales and marine mammals.

If APHIS were to enforce the AWA and shut down the illegal Miami Seaquarium tank holding Lolita, this lonely orca could retire after over 40 years of captivity to rejoin her well-known family pod in Puget Sound. Killer whales are bonded to their mothers’ families for their entire lives, and Lolita still vocalizes using her pod’s unique calls. The Seaquarium could enjoy positive public perceptions from helping to humanely retire Lolita, instead of the overwhelming negative publicity of letting her die as a display whale.

Lolita’s birthright is the L25 matriline of the “L” pod of the Southern Resident orca community in the Pacific Northwest. Lolita’s mother is believed to be Ocean Sun, approx. age 83, who still resides with Lolita’s family swimming freely in the open waters where Lolita was captured. Her capture occurred right before implementation of the Marine Mammal Protection Act which helps protect her family members from being taken, although loopholes still exist in these laws. In 2005 the Southern Resident orcas were listed as endangered species. Because Lolita was caught ‘pre-act’, the powers-that-be excluded her from the status of endangered.

It’s almost certain that Lolita’s life span would be greatly extended if she were to return to her family. Wild female orcas live an average of 50 years, with many thriving well past their 80th birthdays. In contrast, Lolita is the last survivor of 45 Southern Resident Killer Whales that were captured for display in marine parks between 1965 and 1973. Most of those captured orcas died after just a few years of captivity. And if Lolita dies in her tiny, forlorn concrete tank, the Miami Seaquarium will face the anger of hundreds of thousands of orca lovers worldwide.

A call to action, and what you can do to help.

The Office of the Inspector General has a “Hotline” for reporting violations related to USDA programs such as; fraud, employee misconduct, mismanagement, conflict of interest, etc. The hotline tips can be submitted online, by email, by phone, by mail. Here’s the link to the OIG’s hotline: http://www.usda.gov/oig/hotline.htm

Below are sample letters to APHIS Administrators

http://www.orcanetwork.org/captivity/aphisletters.html

http://theorcaproject.wordpress.com/how-to-help/lolita-40-years-in-captivity/

Press Release by Orca Nework: http://archive.constantcontact.com/fs077/1101447505873/archive/1105850825303.html

What else YOU can do:

  • Tell your friends and families not to visit or support Marine Mammal Parks like Miami Seaquarium, SeaWorld and Six Flags.
  • Call your Congressman and elected officials and tell them not to support Marine Mammal captivity. To locate your government officials, click <HERE>.

Additionally, Hunter Shaffer, a 13-year-old disabled activist from New York State who is dedicated to retiring Lolita to her native waters in Washington, says, “Orcas are highly intelligent and social marine mammals that typically swim 75-100 miles a day and repeatedly dive to several hundred feet. Lolita is alone and cannot swim any distance except in tight circles in a pool that is not as deep as she is long.” Shaffer has gathered over 1,700 signatures on a petition asking APHIS to help “retire Lolita from the Miami Seaquarium, and rehabilitate her in Puget Sound.” Please sign and share widely.

Finally, The Orca Project would like to thank the hard work of Wendy Cooke, Kelly Conner, Meg McDonald, Susan Berta and Howard Garrett of Orca Network and of course Shelby Proie of SaveLolita.com, along with the countless compassionate citizens who tirelessly seek the retirement and return home of Lolita. The average American Citizen works 40-45 years. Lolita has worked nearly 41now, and she doesn’t get weekends off or two to three weeks vacation per year. Now is the time to make a big push for her.

11 Comments leave one →
  1. Sue Paley permalink
    December 8, 2013 8:51 am

    I think we need to be seeking help from someone who may make it his right to free Lolita , and maybe even close down Miami seaquarium
    , why don’t we seek help from president Obama?

  2. Victor permalink
    July 14, 2011 4:44 am

    You guys are doing great work! You have my support. VM

  3. Kim permalink
    June 9, 2011 8:29 pm

    Dear top, I’m so glad you did a story on this. I sure hope that one day Lolita gets to retire and enjoy life again. What I don’t understand is why we don’t have humane laws againest this sort of thing. If someone abuses their pet, it’s taken away. It’s quite Lolita’s being abused, so why can’t she be taken away?

  4. karenorca permalink
    June 7, 2011 9:54 pm

    Congratulations to The Orca Project and everyone involved! I do believe the steps now being taken really will finally, finally work to free Lolita.

    (As a humble aside, for weeks I have been meaning to write The Orca Project suggesting exactly this type of action be taken after learning of the Animal Legal Defense Fund’s success in finally freeing Tony the Truck-stop Tiger in Louisiana by suing Louisiana’s animal protection and enforcement agencies for not enforcing their own standards. My excuses for not following through are several major computer crashes and recurring illness).

    You may be assured that I, for one, will be following through on all the suggested actions in your article, and continuing with my prayers for justice for Lolita, and her return to our Puget Sound area. Thank you, thank you for your tireless efforts on her behalf!

    FREE LOLITA!!

Trackbacks

  1. Sauvez Willy (et les autres) ! | Rainbow Unicorn Kitty
  2. Government Report: Killer Whale Lolita’s Welfare at Risk « The Orca Project
  3. Investigation Finds Hazardous Chemicals with Killer Whale Food Supply at SeaWorld « The Orca Project
  4. 41 YEARS OF CAPTIVITY « Without Me There Is No You
  5. 41 YEARS IN CAPTIVITY « Without Me There Is No You
  6. It’s Time To Go Above & Beyond for Lolita « Without Me There Is No You
  7. Justice for Lolita. Taking Her Fight with APHIS to the Next Level. (via The Orca Project) | karenorca

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