Tuesday, August 11, 2009

Is The Government Doing Its Job To Protect Captive Whales And Dolphins?

Hopefully the USDA will inspect and measure the concrete bowl where Lolita has lived the past 39 years and will find it unlawful under the Animal Welfare Act...
Those words from Howard Garrett's post really got me wondering about how it is possible that the governmental agencies responsible for animal welfare are able to turn their backs when it comes to the Miami Seaquarium and the substandard tank where "Lolita" (the orca taken from L-pod) is forced to live.

The USDA arm of the government that is responsible is the Animal Plant and Health Service (APHIS). The Regulations read: 9 C.F.R. Sec. 3.104 - Space Requirements -
The primary enclosure for a Killer whale (Orcinus orca) must have a minimum horizontal dimension of no less than 48 ft. in either direction with a straight line of travel across the center.

Dimensions of "Lolita's" tank. Photo courtesy Orca Network.
Lolita's tank is a mere 35 feet from the front wall to the slide out barrier. At its deepest point in the center the tank is only 20 feet deep. She is about 22 feet long.

In 1995 the Humane Society of the United States filed a formal complaint against the Seaquarium regarding the substandard size of Lolita's tank. The Animal Plant and Health Service (APHIS) has yet to act. Fourteen years later, she is still in the substandard tank.

Who is the Animal Plant and Health Service? Their mission statement says: "Protecting American agriculture" is the basic charge of the U.S. Department of Agriculture's (USDA) Animal and Plant Health Inspection Service (APHIS). APHIS provides leadership in ensuring the health and care of animals and plants. The agency improves agricultural productivity and competitiveness and contributes to the national economy and the public health.

The 1994 Marine Mammal Protection Act amendments eliminated NOAA Fisheries jurisdiction over captive care and maintenance of marine mammals held for public display, placing it under the exclusive jurisdiction of the Animal Welfare Act administered by the Department of Agriculture, Animal and Plant Health Inspection Service (APHIS). However, the MMPA requires that NOAA Fisheries maintain the captive Marine Mammal Inventory Database.

The 1994 Marine Mammal Protection Act amendment concerning captive marine mammals:

NMFS and FWS will regulate the taking of marine mammals from the wild under the MMPA, while subsequent care and maintenance of captive marine mammals held for purposes of public display at registered or licensed facilities will be regulated by the Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture under the Animal Welfare Act (Pub.L. 89-544, as amended). For the taking and importing of marine mammals for public display, permits will be issued only when [1] the effect of the take or importation on wild populations is considered, [2] the method of the taking is humane, [3] an institution is registered or licensed under the Animal Welfare Act (AWA), [4] the institution offers an education or conservation program based upon professionally recognized standards of the public display community, and [5] the institution maintains facilities that are open to the public on a regularly scheduled basis. Although NMFS or FWS must be notified at least 15 days prior to the sale, export, or transport of a captive marine mammal, and NMFS and FWS must maintain an inventory of captive individuals, a permit or other authorization is no longer required to obtain, hold captive, transport, transfer, purchase, sell, or export marine mammals that are being held captive for public display purposes when animals move between facilities that meet the permit criteria. In addition, export of marine mammals is prohibited except as explicitly provided for in the Act.

So why doesn't the USDA do anything to enforce the law with respect to "Lolita's" living conditions?


  1. I started writing my "An Orca named Lolita" articles over a month ago, and each and every day I wonder the same thing. Who is APHIS and why are they ignoring this problem? How can they have let this go on for so long? While researching an article last week, I came across some very negative reviews of the Miami Seaquarium. Even people who knew nothing of the AWA regulations could see that the tank was too small.

    As far as "the institution offering education", I fail to see how forcing Lolita to perform circus acts in order to be fed qualifies as education. My favorite quote of late is one from Jacques Cousteau. I grew up watching him on TV. He said, “There is about as much educational benefit to be gained in studying dolphins in captivity as there would be studying mankind by only observing prisoners held in solitary confinement”. Amen, Jacques, Amen.

  2. I agree, and also the phrase "based upon professionally recognized standards of the public display community" is interesting too. It is odd that the 'display community' had so much influence in setting the standards.

  3. Maybe Hertz is paying them to "turn their backs." Who knows. I wonder if it's possible to sue the APHIS for not enforcing the tank regulations. I mean, they're basically not doing their job so...

  4. Thank you Candace for accurately spelling out the unlawful dimensions of Lolita's predicament.

    The "understanding" between regulatory agencies (in this case APHIS) and the industries they're supposed to regulate (Seaquarium) go way back of course, but are especially egregious in the case of captive cetaceans.

    In 1994, when the MMPA was up for revision, there were months of committee meetings and negotiations leading up to the final vote, expected to continue supervision of captive cetaceans by the National Marine Fisheries Service (NMFS). Literally the day before the vote, lobbyists from the Alliance of Marine Mammal Parks, led by Sea World, descended on legislators, successfully derailing all those agreements and corrupting legislative committees to put control into the hands of the unprepared and more malleable USDA, and transfer the regulation of marine parks to APHIS.

    Thus, experts in corn fields and feedlots were suddenly given the job of inspecting marine parks, without the expertise to know much about the needs of whales and dolphins, just as the Alliance wanted. That helps explain why they've winked and nodded and given lame excuses for permitting an unlawful tank. Without a political counterbalance to industry lobbyists, APHIS tends to protect the industry from the regulations rather than protect the animals from the industry.

    Maybe now, with (hopefully) a more lawful administration and with increased attention to Lolita's precarious plight in that undersized tank, a new inspection will be done with more integrity, initiating the process that will bring her home.

  5. That seems like the million dollar question. It's such an easy task to respond to - measure the tank, find out that oh, no it's not a minimum of 48 feet in either direction... designate the tank illegal!

    What angers me is that once again, the USDA recognized this complaint, and yet apparently has yet to respond. They gave themselves a time frame, and once that time frame was up all they can tell us is that the offices are backed up, and the information is not available to them at this time. What does that mean?! They said they'd go check it out, so what's the problem? Lolita does not have time to wait around for our political bull.

    I agree with "anonymous," is in possible to sue APHIS for negligence? Or contact someone higher up in the chain of command about this?

  6. If they don't have time to measure the tank, I'll volunteer to go do it for them :)

    I did read that APHIS did measure the tank and found it legal as they just measured from side to side. They need to take into account that wall that's in the middle! Lolita certainly cannot swim through that.

    I've been telling everyone to write to APHIS and demand that something be done and I've told them to copy the White House on whatever they send.

    My hope is that with The Cove bringing attention to the captivity issue and other media events going on, we can bring enough pressure for them to finally do something.

  7. writing APHIS and cc the white house is agreat idea. After searching APHIS website I can't discern to whom or where I would write. I appreciate those who have been working on tis for decades! It would great to swamp the same address/people with letters/fax/emails . to whom?

  8. Is there anything we can do to give supervision back to the NMFS?

  9. These are all great suggestions, and I think one key is to keep pressure on our local representatives as well as APHIS.

    I wonder if it is possible to draft an initiative of some kind requesting that "Lolita" be properly cared for or returned? It would seem a non-partisan issue, yet politically relevant.

    In response to the question about whether NMFS can be forced to resume charge, I think they dodged that bullet - but those rules are not set in concrete.

    As I understand it, marine mammal protection falls under the jurisdiction of NOAA, which is part of the Department of Commerce, and guess who is the newly appointed head of Commerce...our ex-governor Gary Locke.

    NMFS is in the Department of the Interior, but they handle endangered species listing.

    Yet responsibility for "Lolita" is turned over to the Department of Agriculture.

    I think even if you are not passionate about cetaceans, the way that the law has been sidestepped and manipulated should really be an issue.

  10. I recently came accross your blog and have been reading along. I thought I would leave my first comment. I dont know what to say except that I have enjoyed reading. Nice blog. I will keep visiting this blog very often.



  11. Thank you Abagale, and please do join in with comments and questions!

  12. I am an attorney in New Orleans, Louisiana. I just learned about this issue after the death of the SeaWorld trainer. Thank you for this information. I am amazed that no one has filed a mandamus action in Federal District Court down there in Miami. Is there more to this story that I'm unaware of?
    I am trying to determine if this has been done, and if not, why not? Am I the only attorney out there who cares about this cause? Once I determine it hasn't been done, I am going to consult with a prominent law professor in New Orleans who specializes in these types of issues. I cannot filed the suit as I am not admitted to practice down there, but I will find someone who can, and work with them. Also, not just anyone can sue. I need to look into the standing issue., ie., who has the legal right to sue.

    Any further information anyone can give me on whether anything has ever been filed in district court, it would be greatly appreciated.


Candace Calloway Whiting