Lolita's Miami Seaquarium Tank Doesn't Meet Federal Standards, Activists Argue UPDATED

For years, animal rights activists have argued that Miami Seaquarium is breaking federal law by keeping its orca, Lolita, in a tank that's too small.  Now they say a new statement by the agency that regulates those tanks bolsters their argument. 

According to the Animal Welfare Act, the minimum space requirements for “four factors must be satisfied" for pools holding cetaceans such as Lolita:  

1. Depth
2. Volume
3. Surface area
4. Minimum horizontal dimension (MHD) of 48 feet

In the '90s, after animal rights activists spurred an investigation, officials from the Animal and Plant Health Inspection Service (APHIS), the federal agency that regulates such tanks, concluded that although the first three requirements were met, the concrete island at the center of Lolita’s pool made the tank noncompliant for MHD unless it was waived.

"MHD" refers to the diameter of the largest circle that can fit into an orca's tank.

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However, the inspectors' higherups approved the tank and stated in 1999 that no waiver was needed because “while there is a platform in this pool that does intersect with the required minimum horizontal dimension, there is nothing in the regulations that prohibits such an object from being in the pool.”

However, the original inspectors' complaints about the concrete island may have been correct after all.

Lyndsay Cole, assistant director of legislative and public affairs for APHIS, tells New Times that indeed the measurements for the required minimum space for marine mammals are taken without obstructions that intersect measurements.

“The MHD is calculated for only those areas of the pool that are unobstructed and meet the depth requirements,” she says after triple-checking with the agency's experts. 

"Officials who were supposed to help Lolita betrayed her by making the law compliant with the tank rather than the tank compliant with the law."

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This is owing to concerns that captive marine mammals would not be able be to "posture" themselves naturally if the minimum space requirements are obstructed by something — such as the concrete island in Lolita's pool. 

All the architectural and design professionals New Times inquired about MHD said the concrete wall is an obstruction because it is not a floating platform, but reaches from the tank floor to above the surface of the water. They state that its presence does not allow for a minimum diameter of 48 feet with unobstructed area.

Former dolphin trainer Russ Rector argues that this means Lolita’s tank does not satisfy the four factors that "must" be met to hold Lolita, who was declared endangered last year. According to the law, “Any [cetacean] enclosure that does not meet the minimum space requirement for primary enclosures... may not be used for permanent housing purposes.”

Miami Seaquarium has not yet responded to New Times' questions about the APHIS statement. But last spring, the Seaquarium’s manager, Andrew Hertz, told New Times that “contrary to some erroneous allegations, Miami Seaquarium has always adhered to the federal government’s rules and regulations.”

But some legal experts say that if the concrete island does not leave enough space for Lolita, the park could face a federal crackdown. 

"There are no waivers or grandfather provisions, and all exhibitors are held to the same standards," says Matt Liebman, an attorney with the California-based Animal Legal Defense Fund (ALDF). "If APHIS found the tank noncompliant, it could fine Miami Seaquarium and order them to correct the problem." 

Rector and other activists urge APHIS's modern officials to use the rule that the diameter be calculated "only" for areas of the pool that are unobstructed for Lolita's tank and see if the figure they arrive at meets the law's standard. 

“Decades ago, the government officials who were supposed to help Lolita betrayed her by making the law compliant with the tank rather than the tank compliant with the law. They cheated her out of the meager space allowed to her by law," Rector says. "Even though it's been 21 years in the making, I'm happy APHIS officials have finally publicly stated the measurements have to be unobstructed. I'm sure Lolita is very thankful too."

Update: After publication, Miami Seaquarium sent the following response to an inquiry about the size of Lolita's pool: 
We understand that there are concerns regarding the size of Lolita’s pool. The AWA requires that a primary enclosure for an orca have a minimum horizontal dimension (MHD) of 48 feet. Because many people have expressed concern about the size of Lolita's pool, AC officials re-evaluated the measurements of her enclosure in 2011 and determined that it does in fact meet or exceed the AWA space requirements (MHD, volume, surface area, depth) for an orca. According to our measurements, the Miami Seaquarium fully meets — and, in fact, exceeds — the AWA space requirements for marine mammals. The figures below specifying the minimum space requirements are taken from section 3.104 of the AWA regulations. The volume requirement for Lolita’s pool is 25,943 ft3; the actual volume is 49,308 ft3. The surface area requirement is 1,808.64 ft2; the actual size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from 12 to 20 feet. Finally, the MHD requirement is 48 feet; the actual MHD measurement is 80 feet in one direction and 60 feet in the other. While there is a platform in the pool that does intersect with the required minimum horizontal dimension, the regulations do not prohibit the presence of such an object. More importantly, the platform does not hinder Lolita’s ability to move about freely in a pool that, otherwise, exceeds the minimum requirements established by the AWA regulations."

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Jonathan Kendall is a former editor at Big Think. He studied journalism at Harvard and is a contributing writer for Miami New Times as well as for Vogue, Cultured, Los Angeles Review of Books, Smithsonian, and Atlas Obscura.
Contact: Jonathan Kendall