For decades, activists have demonstrated in front of the Miami Seaquarium, trying to drum up public support to release Lolita, the now-endangered Southern Resident killer whale who has been the marine park's main attraction since 1970.
Despite those efforts, Lolita remains stuck in an 80-by-35-foot tank, where she hasn't seen a fellow member of her species since the death of her companion orca, Hugo, in 1980. Advocates have long said the tank is too small and violates the Animal Welfare Act, but officials with the U.S. Department of Agriculture (USDA) have cited a multitude of seeming loopholes over the years, allowing them to maintain that the fishbowl-shaped enclosure complies with the law.
In the latest attempt to free Lolita, People for the Ethical Treatment of Animals (PETA) has asked Miami-Dade State Attorney Katherine Fernandez Rundle to investigate and pursue animal-cruelty charges against the Miami Seaquarium and the employees responsible for Lolita's care.
"Despite her highly endangered status, Lolita is held in a small, shallow, barren concrete tank, without adequate protection from the sun and without appropriate companionship," reads a May 26 letter to Rundle from PETA vice president Jared Goodman. "We request that your office investigate this matter thoroughly, with the assistance of orca experts unaffiliated with the captive orca entertainment industry, and bring appropriate cruelty charges."
Our culture's evolving understanding of animal abuse at marine mammal parks, especially in recent years through documentaries such as Blackfish and The Cove, might influence Rundle to investigate. Ed Griffith, a spokesperson for the Miami-Dade State Attorney's Office, tells New Times that prosecutors are reviewing the matter.
For some animal-rights activists, Lolita's situation is not only cruel but the result of decades-long indifference that occurred behind the scenes.
Based solely on the measurements, the Seaquarium tank does not satisfy federal requirements. In order to accommodate an animal of Lolita's size, the Animal Welfare Act says the tank must be at least 48 feet long — twice the length of an adult orca. But a concrete barrier at the center of the tank, where the animal trainers stand during performances in front of wide-eyed crowds, limits the space where Lolita can swim. The front of the tank to the midpoint of the concrete barrier measures only 35 feet.
Since the 1980s, officials at the USDA, specifically the Animal and Plant Health Inspection Service (APHIS), have insisted the tank is compliant because of a waiver or variance for the concrete work island. They carried this argument into the mid-'90s.
In 1995, the then-deputy administrator of APHIS, Dale Schwindaman, argued that Lolita's tank met minimum space requirements based on a "20 percent rule" for enclosures. The rule, which is outlined in the Animal Welfare Act, is used to make up for corners in square-shaped enclosures. Activists say the rule shouldn't apply to Lolita's tank because it's oval-shaped.
Nevertheless, even when the 20 percent rule was applied, the tank still came up 3.4 feet too short in official calculations.
According to measurements taken the same year by site inspector Dr. Kristina Cox, the tank failed to meet the adjusted minimum standard of 38.4 feet. In her notes, she wrote that the distance from the front of the tank to the concrete barrier did not meet the requirements.
But APHIS officials looked the other way, not only waiving the work island but entirely omitting mention of it in subsequent reports. The agency's higher-ups stated that the tank was 60 feet by 80 feet, a measurement only possible if the concrete island is ignored.
In the years that followed, the agency abandoned talks of variances, perhaps because waivers aren't allowed for non-compliant tanks. Instead, Ron DeHaven, the new APHIS deputy administrator, came up with a different justification for the tank's configuration.
In a 1999 letter, instead of conceding the tank came up short for minimum space requirements, he wrote, "While there is a platform in this pool that does intersect with the required [distance], there is nothing in the regulations that prohibits such an object from being in the pool."
The geometrical gymnastics rendered the spirit of the law meaningless. Nevertheless, APHIS spokespeople continue to cite DeHaven's opinion.
For instance, when quoted in a 2016 New Times investigation of Lolita's tank, public-affairs specialist Tanya Espinosa said obstructions like the concrete work island in Lolita's tank are permitted as long as they are not "detrimental."
PETA maintains that there's scant basis for the conclusion.
"The law does not currently explicitly allow for that level of discretion," Goodman says. "The most likely reason for this position is the agency's unabashed commitment to pleasing its 'customers' — which it identifies as the puppy mills, roadside zoos, laboratories, and other animal-exploiting operations that it's tasked with regulating."
PETA believes the concrete work station is, in fact, detrimental to Lolita's well-being.
"The limited space to which Lolita is confined prevents her from performing behaviors natural to an orca, including swimming any meaningful distance," Goodman wrote in his letter to Rundle. "Lolita's confinement in this space likely causes her to suffer chronic illness, among other harms, and she manifests ongoing psychological injuries in the form of repetitive and abnormal behavior."
PETA has a case against the USDA pending before the U.S. Court of Appeals regarding the size of Lolita's tank. The animal-rights organization now hopes the Miami-Dade State Attorney's Office could be another avenue to force the Seaquarium into compliance.
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As the top prosecutor for Miami-Dade County, Rundle prosecutes violations of Florida's criminal law. Although the feds don't believe the Seaquarium has violated the Animal Welfare Act, the marine park could still be held accountable under state laws.
"Marine mammal experts can attest that the complete deprivation of all that is natural and important to Lolita causes her extreme and unnecessary stress, agitation, injury, and suffering, in what we strongly believe to be a violation of [Florida's] cruelty to animals law," Goodman's letter says.
As for Lolita, whose life has been pockmarked by trauma, she is on a hiatus from entertaining crowds: The Miami Seaquarium has temporarily closed because of COVID-19.