But though her situation has stayed the same, in the past three years, much has changed behind the scenes. Miami Beach Mayor Philip Levine recently advocated for her retirement from performing. Government officials argued this year that her tank might not, after all, be large enough to house her. And she was also recognized as an endangered animal in 2015. This December 6, a three-judge panel in Miami will hear a PETA lawsuit that hinges on the orca's new protections under the Endangered Species Act (ESA).
"We look forward to arguing her case before the appellate court and will continue to push for her to be retired from performing and transferred to a seaside sanctuary in her home waters, from which she was captured more than 47 years ago," says Jared Goodman, the director of animal law at PETA.
Lolita — or Tokitae, as she is often called by animal rights activists — once lived off the misty coast of Washington state. During the '60s and '70s, her pod, or family, in the Pacific Ocean was decimated. Dozens of orca calves were captured and sold to oceanariums across the United States, including the Seaquarium. Lolita was among them. The loss of nearly an entire generation of orcas made it difficult for her pod to bounce back in numbers. Today fewer than 80 southern resident killer whales exist, and they are all endangered.
Endangered animals are afforded an extra array of protections under the ESA, in addition to the Animal Welfare Act (AWA). PETA's lawyers, as well as thousands of animal rights activists, hope Lolita's fairly recent recognition as an endangered animal will change her living conditions, which a federal court judge in 2016 deemed "less than ideal."
Earlier this year, PETA's legal team argued successfully in court and secured the upcoming December hearing: "With testimony from expert biologists, a veterinarian, and a former orca trainer, we argued that holding Lolita the orca without the company of any others of her kind, with incompatible animals, and in a cramped tank with no protection from the hot sun is a 'take' in violation of the federal Endangered Species Act."
In addition to living in the controversial tank, the smallest for an orca in North America, Lolita shares it with Pacific white-sided dolphins rather than another orca. The AWA stipulates that social animals be paired so they can engage with each other. It's a quandary as to how a court will rule. Orcas are the largest breed of dolphins, but does placing an orca with Pacific white-sided dolphins satisfy the spirit of the AWA? Activists have argued it's akin to putting a human and a chimpanzee in the same situation; both are great apes but not necessarily socially compatible.