Activists fighting to free Lolita tell court that feds ‘rubber stamp’ Seaquarium license

Activists are in federal court in Miami on Tuesday challenging whether Lolita’s tank at the Miami Seaquarium meets federal standards.
Activists are in federal court in Miami on Tuesday challenging whether Lolita’s tank at the Miami Seaquarium meets federal standards. Miami Herald staff

The government “rubber stamps” the license for the Miami Seaquarium despite the park keeping Lolita the killer whale in inhumane conditions, an animal rights group told a federal appeals court Tuesday.

The “highly intelligent” whale is kept in a tank that is too small and “without shelter from the hot Miami sun and without the company of another orca,” a lawyer for the Animal Defense Fund told a three-judge panel Tuesday.

Tuesday’s court battle was the latest push in a long-running campaign to free Lolita, a 20-foot, 7,000-pound killer whale that has performed at the Virginia Key marine park for over four decades. The whale, captured in the cool ocean waters of the Pacific Northwest, was recently added to a federal endangered species list, a protection given to her wild family nearly a decade ago.

The court hearing was packed with Lolita supporters, some wearing T-shirts emblazoned with her name.

Over the decades, the U.S. Department of Agriculture has routinely renewed the Seaquarium’s exhibitor license — a practice that became the focal point of a 2012 lawsuit filed by the ADF and People for the Ethical Treatment of Animals.

At issue: Lolita’s supporters believe the annual license renewal flies in the face of the 1967 Animal Welfare Act, which calls for the “humane” care and treatment of marine mammals. Seaquarium managers have repeatedly rebuffed the accusations, saying the killer whale, long a top attraction, is well cared for and healthy.

A South Florida federal judge threw out the initial lawsuit but Lolita supporters appealed to the U.S. Court of Appeals of the 11th Circuit, which granted Tuesday’s oral arguments held in downtown Miami.

While the debate over the fate of the whale is a passionate one, the legal argument focused on technical matters, with the hearing delving into the arcane intricacies of internal USDA license renewal rules.

In 2012, hoping to persuade the USDA to not renew the license, the Animal Defense Fund sent in reports from animal researchers and “zoo design experts” declaring that Seaquarium to be “inhumane” for Lolita.

The USDA granted the renewal anyway because the Seaquarium did what was required under the rules – the park filled out an application, paid a fee and and submitted a report vouching that its park complies with the Animal Welfare Act.

Whether the park is actually in compliance was not the legal issue at hand, Assistant U.S. Attorney Anthony Erickson Pogorzelski told the judges.

“Compliance and enforcement are not relevant factors for the agency to be considered at renewal,” he said.

The judges seemed skeptical about the USDA’s internal rules. “They just renewed it – and did nothing?” Judge Frank Hull asked.

“Right, they just rubber stamped it,” said lawyer Delcianna Winders, of PETA and the Animal Defense Fund.

But the judges also noted that private groups could not force the USDA to launch an enforcement investigation.

The animal-rights groups is asking the appeals court to send the case back to a district judge to reconsider revoking the license. The appeals judges could take several months to issue an opinion.