Miami-Dade County

Killer whale activists try again to free Lolita after 43 years at Miami Seaquarium

A wetsuit-clad trainer stands on a platform in the middle of a pool and announces to the audience of tourists and schoolchildren: “And now it’s time to meet the biggest star in Miami.”

Seconds later, the 20-foot, 7,000-pound killer whale named Lolita soars into the air and lands with a gigantic splash, spraying cold water over the sides and onto the squealing kids draped in plastic.

Lolita never fails to delight. For nearly 44 years, the wild-born orca has been the main draw for Miami Seaquarium, the marine park on Virginia Key where millions have come from around the world to see the majestic creature perform tricks for fish.

“To us, Lolita is part of our family,” longtime park curator Robert Rose said.

But activists who are headquartered thousands of miles across the country in Washington state say it is long overdue for the killer whale to be returned to her real family in the Pacific Ocean.

Most of the current activists have been part of previous efforts over the past two decades to “Liberate Lolita,” including one led by the governor of Washington. All have fizzled. Now, the activists are waging a seemingly last-ditch campaign, with legal battles on two fronts. Lolita already has overcome the odds, and has lived more than two decades longer than large marine mammals’ average survival in captivity.

“I want more than anything to see Lolita out of that little pool they have there and back in her native waters — she certainly deserves it after all the things she’s gone through,” said Karen Ellick of Washington state. She took part in a Mother’s Day protest for Lolita’s freedom about 15 years ago at the Seaquarium and is now a party in both legal battles.

In one case, People for the Ethical Treatment of Animals Foundation submitted a petition last year to the National Marine Fisheries Service to include Lolita on the endangered species list as a member of the Southern Resident killer whales. That population is made up of the J, K and L pods that roam coastal sites from central California north to Southeast Alaska and spend spring and summers in the inland waterways of Washington state and British Columbia. Lolita, a member of the L pod, is the only captive orca of that Southern Resident population, which is down to about 85 members.

PETA filed the petition on behalf of the Animal Legal Defense Fund, Orca Network and four individuals.

That same group also launched a lawsuit in 2012 against the U.S. Department of Agriculture that “challenges its absurd decision to renew the Seaquarium’s federal Animal Welfare Act license.”

Jared Goodman, director of animal law for PETA, said the Seaquarium is not in compliance with federal law because Lolita’s tank is too small, she does not have the company of another orca and she is not protected from the burning sun.

To Russ Rector, a longtime marine mammal activist from Fort Lauderdale who had tried to free Lolita decades ago, this new effort is a big waste of time — and money, which not only is coming from private donors but also from taxpayers who are footing the staff time and legal bills of the federal agencies.

“Lolita’s time to go free was 25 years ago,” Rector said. “That door is closed and is too late to reopen. Now, it’s all about the money. The Miami Seaquarium is making money off Lolita, and so are the Free Lolita people.”

The story of Lolita begins in 1970, when wranglers using explosives herded about 60 to 80 of the killer whales into a three-acre net pen in Penn Cove, about 50 miles north of Seattle.

She was one of seven selected for a life of captivity. Marine-mammal vet Dr. Jesse White bought Lolita, who was then about 4 to 6 years old and weighed only 2,000 pounds, for a reported $20,000. She originally was called Tokitae and soon was transported to Miami’s marine mammal park, where Flipper was filmed. She would share a pool with a male orca, Hugo. Sometimes they would mate during shows. But in 1980, Hugo died of a brain aneurysm.

In the 1990s, along came the Free Willy craze. The 1993 film about a boy freeing a captive orca led to campaign to free the real-life Keiko, who was an attraction at an amusement park in Mexico City. Keiko was famously moved to a bigger pool in Oregon for a boot camp to learn how to be wild again and then taken to a sea pen off Iceland, where he originally was captured in 1979. Eventually he was set free in the North Atlantic.

That craze led to a “Free Lolita” campaign in 1995, led by Washington Gov. Mike Lowry and Secretary of State Ralph Munro, then Karen Ellick’s husband. Ellick became passionate about the cause after witnessing a “horrific” 1976 whale roundup that also used explosives. The campaign offered $2 million to Seaquarium owner Arthur Hertz for Lolita, as well as rights to a documentary film to be made about her.

Hertz repeatedly told them, often in colorful language, that Lolita was not for sale.

In 2002, Hertz tried to acquire an orca companion for Lolita. It was Keiko. Hertz sent a letter to Norway’s Ambassador saying the Seaquarium would like to acquire Keiko, who at the time was approaching people and boats in Norway begging for fish. The ambassador responded no, saying: “It would be a great step back to put him in an aquarium again.”

Because Lolita was caught before the Marine Mammal Protection Act of 1972, no federal permit is needed to move her — then or now. But a federal permit is needed to release her back into the wild.

Howard Garrett, founder of the Washington-based Orca Network, has been fighting for Lolita’s freedom for decades and says the fight is not over. He touted the news that recently NMFS reversed itself and recommended that Lolita be included in the endangered species list of the southern resident killer whale population.

“It does help to provide a possible avenue for her to eventually be returned to her native waters,” he said.

NMFS is accepting public comment about the proposal until March at More than 6,500 comments have been received.

While it’s likely after the public comment period and followup analysis that Lolita will be added to the endangered species list, that move would add one more layer of protection for the captive facilities.

“Right now, under the Endangered Species Act, we think release into the wild could be harmful to the mammal and to the wild population,” said Lynne Barre, NFMS’s branch chief for protected resources.

Rector said NMFS has not issued permits to allow captive mammals back into the wild since a pilot program for dolphins at a sanctuary in the Keys failed miserably in the 1990s, with activists battling each other.

NMFS also does not regulate captive marine mammals. That jurisdiction belongs to the USDA’s Animal and Plant Health Inspection Service, which overseas the Animal Welfare Act.

W. Ron DeHaven, USDA deputy administrator of animal care, wrote in a 1999 letter that reiterated the federal agency’s longtime position that Lolita’s “whale bowl,” although the smallest pool in North America for a killer whale at 80 feet by 60 feet and 20 feet deep, is legal. The letter stated that the platform in the middle of the Miami Seaquarium pool “does not hinder Lolita’s ability to move about freely in a pool that, otherwise, far exceeds the minimum requirements established by the AWA regulations.”

He also wrote the that USDA does not have the authority to require a facility to obtain a second killer whale and that the six Pacific white-sided dolphins that share the pool with Lolita qualify as “companion animals” required for mammals that are considered social. He made no mention of shade.

Now it’s in the hands of the federal court in Miami to decide if there is any merit to the activists’ claims that the USDA is improperly renewing the Seaquarium’s annual permits to keep Lolita.

Garrett said the Orca Network and Ken Balcomb, a longtime orca researcher with the Center for Whale Research, have devised an elaborate plan to retire Lolita to a transitional coastal sanctuary sea pen in Kanaka Bay, a cove on San Juan Island in Washington state.

There would be a rehabilitation period during which humans would work to teach her skills needed to survive in the wild, including how to catch and eat live fish. The goal would be to eventually reintroduce Lolita to her natural family. The millions it would take would come from private donors, Garrett said.

Rose, Seaquarium curator for 19 years, calls the plan absurd and said the best place for Lolita to spend the remaining years of her life is right where she is now, receiving first-class medical care, nutritious restaurant-quality food and the constant care of the staff.

“I don’t understand all this misguided energy and effort and money for a specific animal,” he said. “Why not invest it in the killer whale population out there that is endangered? Why not really look for answers to overfishing of their food source, or the toxins created in the environments that we as humans are doing, or boat traffic?”

Billy Hurley, past president and current board member of the Alliance of Marine Mammal Parks & Aquariums, agreed: “Extremists are spending enormous amounts of money for something that is not a problem and during that time we’re watching wild populations fall apart.”

Clive D.L. Wynne, a professor who specializes in animal behavior at Arizona State University, said he’s sympathetic to Lolita’s plight but says she probably should not be returned to the wild at this stage.

“Certainly, those animals deserve a better existence than living in a small basin and performing every day,” he said. “But Keiko is a prime example of the prognosis for a whale being returned to the wild after living decades in captivity. Living in the wild is difficult. And the odds to master those skills later in life leave little ground for optimism.”

Rose points out that more than $15 million was spent to free Keiko, and it resulted in the whale “dying alone in a fjord in Norway of pneumonia. It was not the fairytale story that she jumped over the wall and everybody lived happily ever after.”

It likely is too late for Lolita. But the tide of public opinion has been changing, with more people finding it wrong that highly intelligent mammals are held captive at marine parks and aquariums for the enjoyment of humans.

“If people want to see the orcas in person, they should come to Puget Sound and go out on a nice whale watching boat to see them in their habitat,” Ellick said.

As for Lolita, who ended another performance by flopping onto the platform in the middle of the pool and waving her flipper to the cheering crowd, she was eager for her reward of fish. Rose said Lolita has been a great ambassador for wild killer whales, by educating all the people who come to see her, and it’s a role that she should continue to fill.

“The activists really don’t genuinely care about Lolita, but we do,” Rose said. “I’ve been with Lolita longer than my wife. Lolita is our family member, and we are going to take care of her until the very end.”