A Puget Sound orca held for decades at Miami’s Seaquarium will gain the protection of the federal Endangered Species Act, a move expected to set the stage for a lawsuit from advocates seeking the whale’s release.

The National Oceanic and Atmospheric Administration (NOAA) announced Wednesday the decision to list Lolita as part of the southern resident killer whales of Puget Sound, which already are considered endangered under the federal act. 

Whale activists, who petitioned for this status, have long campaigned for Lolita’s return to Puget Sound. They hope the listing will provide a stronger legal case to release Lolita than did a previous lawsuit that centered on alleged violations of the federal Animal Welfare Act.

“This gives leverage under a much stronger law,” said Howard Garrett of the Whidbey Island based Orca Network, which hopes a San Juan Island cove will one day serve as the site for Lolita to re-enter the wild.

NOAA Fisheries officials on Wednesday described their decision in narrow terms, which set no broader precedents. It does not address whether Lolita should be released from the Seaquarium.
“This is a listing decision,” said Will Stelle, the NOAA Fisheries regional administrator for the West Coast. “It is not a decision to free Lolita.” 

Aquarium officials have repeatedly said they have no intention of releasing the orca. 

“Lolita has been part of the Miami Seaquarium family for 44 years,” said Andrew Hertz, Seaquarium general manager, in a statement. 

“Lolita is healthy and thriving in her home where she shares habitat with Pacific white-sided dolphins. There is no scientific evidence that … Lolita could survive in a sea pen or the open waters of the Pacific Northwest, and we are not willing to treat her life as an experiment.”

Orcas, also known as killer whales, are found in many of the world’s oceans. The southern resident population, which spends several months each year in Puget Sound, is the only group listed in the U.S. under the Endangered Species. 

The three pods in the population were reduced by captures by marine parks between 1965 and 1975, NOAA says. Among them was a roundup in Penn Cove where seven whales were captured, including Lolita. 

The southern resident pods now number fewer than 80. Possible causes for the decline are reduced prey, pollutants that could cause reproductive problems and oil spills, according to NOAA Fisheries.
Under the Endangered Species Act, it is illegal to cause a “take” of a protected orca, which includes harming or harassing them.
Wednesday, NOAA officials said holding an animal captive, in and of itself, does not constitute a take. 

Orca activists are expected to argue in their lawsuit that Lolita’s cramped conditions result in a prohibited take.

There is “rising public scorn for the whole idea of performing orcas,” said Garrett, who hopes Seaquarium will decide to release Lolita without a court order. 

But NOAA officials still have concerns about releasing captive whales, and any plan to move or release Lolita would require “rigorous scientific review,” the agency said in a statement.
The concerns include the possibility of disease transmission, the ability of a newly released orca to find food and behavior patterns from captivity that could impact wild whales.

NOAA said previous attempts to release captive orcas and dolphins have often been unsuccessful and some have ended in death.

Garrett said the plan for Lolita calls for her to be taken to a netted area of the cove, which could be enlarged later. She would be accompanied by familiar trainers who could “trust and reassure her every bit of the way,” he said. 

The controversy over releasing captive whales has been heightened by the experience of Keiko, a captive orca that starred in the 1993 movie “Free Willy,” about a boy who pushed for the release of a whale.

In 1998, Keiko was brought back to his native waters off Iceland to reintroduce him to life in the wild. That effort ended in 2003 when he died in a Norwegian fjord. 

Garrett, who visited Keiko in Iceland in 1999, said he was impressed by the reintroduction effort, and that there was plenty of evidence that Keiko was able to catch fish on his own.

“The naysayers predicted that as soon as he got into the (Icelandic) waters he would die, and wild orcas would kill him,” Garrett said. “He proved that 180-degrees wrong. He loved it.”

Mark Simmons, who for two years served as director of animal husbandry for the Keiko-release effort, has a different view. He says Keiko never was able to forage for fish on his own, and that he continued to seek out human contact at every opportunity. 

Simmons wrote a book called “Killing Keiko,” that accuses the release effort of leading to a long slow death for the orca, which he says lacked food and then succumbed to an infection.

“It’s not really the fact that Keiko died, but how he died,” Garrett said Wednesday.