Earth Law Center recently announced our partnership with the Lummi Nation to bring Sk'aliCh'elh-tenaut (first named Tokitae and later known as her stage name, Lolita) home to the Salish Sea. This is our fifth blog in this series. Our previous blogs explored the history of the campaign by the Lummi Nation, ELC’s partnership with two members of the Lummi Nation, and the culture, lives and population structure of the Southern Resident Orcas of the Salish Sea. Our most recent blog delved more deeply into the relationships of the Lummi with orcas, and the worldview of indigenous peoples, generally. This blog will delve further into the life of Sk'aliCh'elh-tenaut and the decades-long legal battle to release her from the Miami Seaquarium.

By Christian Muller and Laila Remainis

Meet Sk'aliCh'elh-tenaut

On August 8th, 1970 approximately 80 orcas were taken from the waters of Washington State. This event was one of the largest in history and involved dropping bombs into the water to drive the younger orcas into shallow coves. Sk'aliCh'elh-tenaut was one of seven young orcas taken from her family that day. Five orcas of Sk'aliCh'elh-tenaut’s pod were so seriously injured that they died shortly after. Their bodies were filled with rocks so they would sink and thus avoid public attention. For weeks after, local residents reported the cries of the remaining pod members searching the abduction area seeking their loved ones.

The abduction of Sk'aliCh'elh-tenaut and other orcas profited by Ted Griffen and Don Goldsberry. The Miami Seaquarium then purchased Sk'aliCh'elh-tenaut who arrived there on September 23, 1970. Her first name, Tokitae, a Salish greeting meaning “nice day, pretty colors” was changed to Lolita.

Sk'aliCh'elh-tenaut’s abduction story as a mammal in captivity happened around the world and across the US. Capturing young cetaceans (whales and dolphins) from the wild to spend the rest of their lives in captivity for entertainment purposes began in the 1950s and continued until the early 1970s in the United States. This changed when the Marine Mammal Protection Act was passed prohibiting any “taking” of a mammal without a permit. Currently over 2,000 dolphins, belugas, and orcas are held in captivity internationally, with 5000 individuals having already died in captivity. Currently, there are 59 orcas in captivity in seven countries.

Sk'aliCh'elh-tenaut first lived in a tank at the Miami Seaquarium with a male orca, Hugo. Taken from the coast of Washington and sold to the Miami Seaquarium in 1968, Hugo performed with Sk'aliCh'elh-tenaut for ten years. Hugo’s behavior became increasingly compulsive and aggressive, which population biologists determined was caused by life restricted in a small tank. Hugo would often slam his head against the walls of the shared tank, leading to repeated injuries requiring medical and surgical attention and resulted in his death in 1980 of a brain aneurysm. Sk'aliCh'elh-tenaut witnessed 12 years of this behavior as well as Hugo’s death.

Now alone, Sk'aliCh'elh-tenaut lives in an 80 feet long, 35 feet wide and 20 feet deep tank (and even smaller quarters at times). Her “home” happens to also be the smallest tank for an orca in the world. Sk'aliCh'elh-tenaut herself is 22 feet long. In the wild, she would have swam up to 40 miles every day and dive to depths between 100-500 feet several times a day to find food. Imagine for a moment how it would feel to be in solitary confinement: in a room where we could walk a few steps and turn around, without any windows and never being able to go outside again for the rest of our lives.

At one point, two Pacific white-sided dolphins were put into Sk'aliCh'elh-tenaut’s tank, and repeatedly scarred her skin with their teeth (defensive “raking” behavior). In 2015, Sk'aliCh'elh-tenaut was raked over 50 times, leaving her in need of both painkillers and antibiotics.

The shallow tank depth also leaves her vulnerable to both the hot Miami sun and major storms. In 2017 Sk'aliCh'elh-tenaut was left to fend for herself in an uncovered tank during Hurricane Irma. The Seaquarium’s lockdown in response to the hurricane, left the two dolphins and Sk'aliCh'elh-tenaut at risk of injury from debris, metal from a “rusty roof beyond repair,” and filtration malfunction. While free orcas are usually able to survive large storms by swimming to greater depths in the ocean, orcas in captivity are unable to.

Legal Battles to Free Sk'aliCh'elh-tenaut

In the 1990s, Washington Governor Mike Lowry and Secretary of State Ralph Munro launched the first “Free Lolita!” campaign. During the next ten years, multiple organizations and foundations including the Tokitae Foundation and Orca Network formed to raise awareness about Sk'aliCh'elh-tenaut’s plight. In 2003, animal rights activists, including Russ Rector issued code violations against the park for the squalid living conditions.

The movement to free Sk'aliCh'elh-tenaut has spurred numerous lawsuits and petitions. These lawsuits largely cited the Endangered Species Act as well as the Animal Welfare Act. The Endangered Species Act (ESA) is the primary law in the United States for protecting imperiled species. Its goal is to develop and implement plans to recover species listed as threatened or endangered. If a species is listed, this prohibits agency actions that “may affect” a listed species, specifically prohibiting the “take” of such species, which broadly includes activities that harass, harm, or kill. The Animal Welfare Act creates and enforces that minimum standards of care and treatment be provided for certain animals bred for commercial sale, used in research, transported commercially, or exhibited to the public.

One of the first cases aiming to free orcas from captivity was filed in February 2012. People for the Ethical Treatment of Animals Foundation (PETA) attorneys brought a case against SeaWorld citing the 13th Amendment. The suit claimed SeaWorld was in violation of the 13th Amendment for enslaving five orcas. PETA argued that constitutional protections against slavery are not only limited to humans. Under the 13th Amendment the orcas’ capture and forced servitude was illegal. The court dismissed the action due to lack of subject matter jurisdiction and the judge issued a statement concluding no basis to extend the 13th Amendment to non-humans. Although the case was dismissed, the news of the proceedings sparked a growth in public attention and concern for orcas used as show animals.

In 2005, the Southern Resident Orca population was listed as endangered under the Endangered Species Act. The extension of the protective listing was denied to Sk'aliCh'elh-tenaut. This spurred a petition in 2012 sponsored by PETA on behalf of the Animal Legal Defense Fund (ALDF), Orca Network, Howard Garrett, Shelby Proie, Karen Munro, and Patricia Sykes to include Lolita under the endangered listing of the Southern Resident population. With over 17,000 supporters, the National Marine Fisheries Service finally passed a rule in 2015 to list Lolita under the ESA.

In 2013, ALDF filed the case Lolita vs. USDA claimed that the Seaquarium’s exhibitor’s license renewal had violated the Animal Welfare Act on multiple counts. The violations included her small tank size, lack of protection from the sun and an absence of companionship (a critical issue considering the highly social nature of orcas). Seaquarium managers repeatedly rebuffed the accusations. The federal district court granted summary judgment for the USDA in 2014. The court found that while Congress established standards and procedures for the USDA to issue an exhibitor’s license, it is left to the agency to determine the standards and procedures for the license renewal process. The court determined that the USDA’s renewal process was legally permissible. The case was dismissed and lost on appeal in June 2015.

Following the death of a SeaWorld trainer, the Occupational Health and Safety Administration (OSHA) implemented new restrictions between trainers and orcas to ensure the safety of both parties. While the judge ruling specified new restrictions for SeaWorld performances, the Miami Seaquarium continued placing trainers in the water with Sk'aliCh'elh-tenaut. The American Legal Defense Fund (ALDF) alerted OSHA of violations. Miami Seaquarium responded with disagreement that the trainer’s lives were at any risk around Lolita. Ultimately in 2014, OSHA fined the Seaquarium $7,000 for violating the physical barrier requirement.

The year after the Miami Seaquarium was fined, Sk'aliCh'elh-tenaut was officially listed under the Endangered Species Act with the Southern Resident Orca population. Several weeks after the announcement, Orca Network, PETA, and ALDF sued the Seaquarium demanding Sk'aliCh'elh-tenaut be retired from entertainment and released to a seaside sanctuary. The groups proposed a retirement plan meant to transition her from to the Salish Sea. The orca advocacy team explained that the treatment and confinement of Lolita constituted a “take” (direct or indirect harassment) under the Endangered Species Act. The team cited thirteen different injuries stemming directly from the small size of her tank. The Miami Seaquarium attempted to claim that freeing her would make her more vulnerable to an injury or ailments. The initial court decision dismissed the case in 2016. It was appealed and a final decision was made in 2018. The federal judge dismissed the appeal, finding “to have taken an animal would require the action be a grave threat or have the potential to be a grave threat to the animal’s survival, and PETA did not provide evidence of conduct that met that standard.”

A recent lawsuit filed concerns Sk'aliCh'elh-tenaut’s tank size and the new license granted by the USDA under the Animal Welfare Act. PETA filed the lawsuit against the USDA in 2016, and it is currently on appeal. For years, animal advocacy groups have argued that Sk'aliCh'elh-tenaut’s tank is far too small for her size and intellect, and they soon had what seemed like the support of the federal agency. In a report released in 2017 by the U.S. Department of Agriculture’s Office of the Inspector General, an audit of Lolita’s tank found that it “may not meet all space requirements defined by the agency’s [Animal Welfare Act] regulations.” The primary measurements in question examined whether or not the trainers’ island podium infringes on Sk'aliCh'elh-tenaut’s living space. However, the court found that the USDA did not violate the AWA by granting the license and the plight of Sk'aliCh'elh-tenaut needed to be brought up with Congress, instead of under an administrative procedure. The case was dismissed and appealed. The status of this case is still pending.

Sk'aliCh'elh-tenaut remains imprisoned. Her story illustrates the need to transform our legal system. After 50 years, it's time for Sk'aliCh'elh-tenaut to go home. Her right to exist, thrive, and evolve has been denied to her from the time she was stolen from her family to today living as a for-profit entertainment item in the world’s smallest orca tank. This is why ELC is working with Squil-le-he-le (Raynell Morris) and Tah-Mahs (Ellie Kinley) of the Lummi Nation, who consider the orcas and Sk'aliCh'elh-tenaut their relatives under the waves. We are exploring all legal strategies that have yet to be tried, including indigenous rights as well as the rights of Sk'aliCh'elh-tenaut herself, to finally release her and see her return home.

Sk’aliCh’elh-tenaut’s future and return back to the Salish Sea will be monitored by not only the Lummi Nation but also by a highly committed community of scientists and experts. International experts led by the Whale Sanctuary Project are collaborating on the development of an operational plan in anticipation of MSQ agreeing to her release. The development of the plan will draw upon the knowledge of those with specialized experience in marine mammal rescue, transport, rehabilitation, research, repatriation and long-term care. Many have been thinking about the details of Sk’aliCh’elh-tenaut’s repatriation for years and believe if she is healthy, she can be transported safely. The goal is to bring her home in a responsible manner. This means ensuring everything is done in her best interest through steps such as a pre-transport evaluation, conditioning, on-site care at the Salish Sea site and long-term enrichment. Earth Law Center is committed to provide Sk'aliCh'elh-tenaut her opportunity to swim once again in the Salish Sea and hope you will join us.

You can support this initiative by:

Signing and sharing the petition

Donating to ELC

Contacting Miami Seaquarium and it’s parent companies (Palace Entertainment, Parques Reunidos, EQT Group, Groupe Bruxelles Lambert, and Corporación Financiera Alba) to let them know you want to see her released!

https://aldf.org/case/challenging-the-usda-for-licensing-miami-seaquarium/

https://www.miamiherald.com/news/local/environment/article16159679.html

https://theorcaproject.wordpress.com/2011/06/07/usda-aphis-fails-killer-whale-lolita-at-miami-seaquarium/

https://www.peta.org/blog/lolitas-friends-push-forward-lawsuit-seaquariums-license/

https://www.miamiherald.com/news/business/article154928954.html

https://www.casemine.com/judgement/us/5c180e48342cca0c3163735a

http://www.orcanetwork.org/Main/index.php?categories_file=Free%20Lolita%20Update%20146