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Activists have wanted to free Lolita for 25 years. But the orca will remain at the Seaquarium, court rules

Martin Vassolo, Miami Herald on

Published in News & Features

MIAMI -- More than three years after activist groups sued Miami Seaquarium over its treatment of the captive orca Lolita, a federal appeals court has rejected their petition to reopen the case.

The suit claimed that Seaquarium was violating the Endangered Species Act by confining the orca. But in a decision filed Tuesday, the three-judge panel of the U.S. Court of Appeals for the 11th Circuit determined that while Lolita's case was "unique" due to her age and the continuing medical care present at the aquarium, there was "no threat of serious harm" sufficient to trigger a violation of the federal animal welfare law. The court also noted that there is "no realistic means for returning to the wild without being harmed."

Lolita, a Southern Resident Killer Whale thought to be about 51 years old, is the star attraction at Seaquarium, a popular tourist attraction on Virginia Key, where she has lived since her capture off Puget Sound in 1970. At 80 feet by 60 feet and 20 feet deep, her tank is the smallest orca aquarium in the country.

Her endangered status means that any move would require a permit from the National Oceanic and Atmospheric Administration. While orcas can live up to 80 years in the wild, the median life expectancy is considered between 38 and 50 years old.

"This ruling sentences a highly intelligent, deeply lonely and distressed orca to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom," said Jared Goodman, general counsel for animal law for People for the Ethical Treatment of Animals, a party to the lawsuit. "It ignores today's understanding of the way orcas suffer deeply in captivity, and PETA will continue pushing for Lolita's release into a protected seaside sanctuary in her home waters."

Inspired by the story of Keiko, the whale in the 1993 movie "Free Willy," activists have been waging a high-profile battle to release Lolita for more than two decades. Protesters, some dressed in orca costumes, gather outside Miami Seaquarium every Aug. 8, the anniversary of Lolita's capture.

The 2013 documentary "Blackfish," which detailed the treatment of captive orcas in the United States and the death of an orca trainer in Orlando, galvanized protest efforts.

But Keiko, released into Icelandic waters in 2002 after decades of work and millions of dollars, died one year later at the age of 27. Leading scientists and conservationists have said that relocating Lolita at this stage of her life could be harmful to her well being.

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PETA was joined by the Animal Legal Defense Fund, Orca Network and its founder Howard Garrett in its initial lawsuit against Miami Seaquarium. In January, the federal appeals court upheld a lower court ruling that Lolita could stay at her home of nearly half a century, and the activist groups petitioned for a panel rehearing in February.

The panel of judges did not revisit its opinion but addressed concerns presented in the petition for rehearing.

"The outcome here avoids tying the hands of future courts in cases involving younger, healthier animals who may be faced with different circumstances," the court's decision reads. "It also avoids signaling unintentionally that an animal's age and the level of medical care it receives are determinative."

Miami Seaquarium did not immediately respond to a request for comment.

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