It’s Time To Go Above & Beyond for Lolita
For over 25 years, the USDA’s Animal and Plant Health Inspection Services (APHIS) has refused to enforce the Animal Welfare Act (AWA) when it comes to Lolita, the killer whale housed at the Miami Seaquarium. APHIS has not only refused to enforce the AWA, they have provided concerned members of the public with misleading and contracting information to justify that the Miami Seaquarium meets and even exceeds AWA regulations in regards to Lolita’s housing situation. The numerous interactions I’ve had with APHIS over the last year has proven they are not interested in enforcing the AWA. Instead they are interested in protecting the interests of the Miami Seaquarium.
Since 1970, Lolita has been living in an illegally sized tank, unprotected from the blazing Miami sun, storms & hurricanes. Lolita has also been without the companionship of another orca since 1980. The Animal Welfare Act is the only means of protection that Lolita has and the fact that our government continues to turn a blind eye to this situation has prompted myself and others to continue to speak on Lolita’s behalf.
The most egregious AWA violation concerns the minimum horizontal dimension (MHD) of Lolita’s tank. Lolita’s tank measures 35 feet wide x 80 feet long making the MHD measurement 13 feet less than the 48 foot minimum requirement of the law. Lolita is approximately 21 feet long. Just a simple glance at her tank would be enough for any rational person to detect there is no way Lolita’s tank could measure at least 48 feet wide
In 2010, I sent a complaint letter to APHIS expressing my concerns that Lolita’s tank size was not in accordance with the law. I received a response from Chester Gibson, APHIS’s Deputy Administrator of Animal Care stating to me Lolita’s tank size met and even exceeded the minimum requirement of the AWA.
Gibson stated: The minimum horizontal dimension (MHD) requirement is 48 feet; the MHD measurement is 80 feet in one direction and 60 feet in the other. We did NOT include the medical pool area in our MHD measurements of the main pool. Therefore use of the medical pool area does NOT diminish the size of the main pool.
There is no dispute that the measurement parallel to the trainer’s work station was 80 feet, but there is a major dispute in the other MHD measurement. Knowing there is absolutely no way possible that Lolita’s main pool measured 60 feet without use of the medical pool prompted a second complaint letter to APHIS. In January 2011, I sent a second complaint letter to Chester Gibson with clear photographic proof that refuted APHIS’s claims that Lolita’s tank was legally sized. I wanted an explanation as to how Lolita’s tank measured 60 feet along with all documents on file with APHIS that pertained to the measurements of Lolita’s tank. At this time I also requested APHIS publicly re-measure the tank as an effort to stop the unnecessary use of tax dollars APHIS has wasted for decades responding to the thousands of complaints they have received from concerned citizens about Lolita.
To no surprise, Chester Gibson responded by dismissing my concerns and refusing to publicly re-measure Lolita’s tank. With no explanation as to how Lolita’s tank could measure 60 feet, I was told
However, as we mentioned in our prior letter, according to our measurements, Lolita’s pool size fully meets - an in fact, exceeds – the space requirements for marine mammals as detailed in Section 3.104 of the Animal Welfare Act.
This letter referenced me to contact Dr. Betty Goldentyer, D.V.M., Eastern Regional Director if I would like to discuss my complaint further. I promptly contacted Dr. Goldentyer providing her with the same letters I sent to Chester Gibson along with the responses I received from Mr. Gibson asking her for the explanation I failed to receive from Chester Gibson. Dr. Goldentyer initially thought it would be best to discuss my concerns over the phone.
Dr. Goldentyer called me on March 14th, 2011 and said that my confusion was due to the Google Earth measurement photographs I sent to APHIS did not show under the island in Lolita’s tank. She proceeded to tell me that the island was actually a floating platform that was held up by some sort of pedestal. Therefore, Lolita could swim underneath it making her tank legally sized.
I made Dr. Goldentyer aware that I had a picture of Lolita’s tank drained showing the island was solid cement and it extended to the bottom of the pool. When I asked her when the Seaquarium remodeled the tank, she had no answers and continually stated that Lolita can swim under the island so it’s legal. I asked Dr. Goldentyer even if Lolita could swim under the platform, according to Chester Gibson of APHIS, the medical pool was not included in their 60 foot MHD measurement.
She proceeded to tell me that APHIS’s 60 foot measurement was from the edge of the main pool to where the gates were connected to the island. I expressed to Dr. Goldentyer this made no sense as the pool measured 35 feet which would require the island to be 25 feet wide to match their 60 foot measurement. The island only measures 11 feet. As the conversation went on with Dr. Goldentyer stumbling over her words, I finally told her I would send her the pictures I had of Lolita’s tank drained and asked her to send me the viewing window picture she claimed to have showing that Lolita can, in fact, swim under the cement island. Immediately I sent Dr. Goldentyer the above image of Lolita’s tank drained.
A few days after I had this phone conversation with Dr. Goldentyer, I received documents from APHIS which I requested via the Freedom of Information Act (FOIA).
These documents are APHIS’s “blueprints” for the measurements of Lolita’s tank. These documents prove the 35 foot measurement of Lolita’s main pool I took from Google Earth was indeed correct and APHIS’s Chester Gibson was incorrect by stating the main pool measured 60 feet.
For the last four months, Dr. Goldentyer has given me excuse after excuse as to why she has not yet produced this floating island picture. I continued to express my concerns with her floating island theory questioning what the purpose of the gates on each side the island would serve if Lolita could just swim under it. I sent her additional photographs of the tank drained, the FOIA documents I received and asked her every few weeks since March where was the picture.
Dr. Goldentyer initially told me she wanted to make sure she had all the facts, so she “asked for specific new photos and would be in touch”. After a few weeks since our conversation, she advised me that she did receive the photos but needed additional information to make sure she had all the relevant information from the appropriate sources. Then at the end of April, I was told she had the Assistant Regional Director, the Regional Animal Care Specialist and the local inspector working on a response to me. Dr. Goldentyer advised they all wanted to independently confirmed all the information, confirm the information through channels and have a good definitive answer for me. One request for a simple picture turned into several months of getting the run around from Dr. Goldentyer.
While I was waiting for Dr. Goldentyer’s photo & definitive answer, a fellow colleague sent me a letter she received in 1998 from APHIS after she voiced her concern regarding the legality of Lolita’s tank size. The response letter she received from APHIS states:
The minimum horizontal dimension (MHD) requirement is 48 feet; the actual MHD is 80 feet in one direction and 60 feet in the direction interrupted by the platform. We wish to point out that the definition for MHD (AWA Section 1:1) does not preclude the presence of partial obstructions. Therefore, the MHD measurement considerations begins at the pool’s edge and continues beyond the platform.
On May 17, 2011, I sent a copy of this letter to Dr. Goldentyer advising her that I now had 3 different contradicting explanations as to how APHIS found Lolita’s tank to be legally sized. Just 2 1/2 weeks after sending this letter to Dr. Goldentyer and four months of waiting for a response from her, I received my “definitive answer” from APHIS.
On June 2, 2011, Dr. Goldentyer sent me an email along with an attached letter and diagram. In the email, she wrote:
Thank you for your interest in Miami Seaquarium and for your patience as we reevaluated the issues. I hope that you find the attached letter, diagram, and table helpful. In my letter, several concerns regarding Lolita and Seaquarium are addressed which I include for your information. The diagram and table contain the pool size information which is most pertinent to your concerns. I understand that you may not agree with the agency determination regarding Lolita’s pool, however, we do strive to provide clear consistent information and I am sorry for the confusion.
Betty Goldentyer, DVM
To me, this letter appears to be the new “everything is great” at the Miami Seaquarium response APHIS may intend to use for future complaints as it addresses everything but what I had been waiting for from Dr. Goldentyer….the supposed floating island picture. The diagram attached with this letter though contained the exact information from last letter I forwarded to Dr. Goldentyer from my colleague. Upon opening the this last email from Dr. Goldentyer and reviewing it, it felt like a slap in my face once I realized their “definitive answer” came from a letter I sent to her weeks before which was dated back to 1998.
In just over a year’s time, I’ve received three different confusing rationale from APHIS justify their allowing the Miami Seaquarium to continue housing Lolita in her illegally undersized tank, without any AWA enforcement action by APHIS. If APHIS actually “strived to provide the public clear consistent information” as Dr. Goldentyer put it, I would not be in the position I am today which is no further than I was over a year ago except for a paper trail of the misconduct within APHIS. Dr. Goldentyer provided me no explanation as to why I received various explanations from APHIS except “sorry for the confusion”.
This is what has prompted me to step further than APHIS and contact the Office of the Inspector General (OIG), the USDA’s internal auditor that has cited the Eastern Regional Division of APHIS for not enforcing the law, not finding violations, and not assessing fines. In collaboration with Orca Network, The Orca Project, and a broad range of groups and individuals nationwide, I sent a letter to the USDA’s Office of Inspector General (OIG) on June 6, 2011 requesting an investigation of the failure of the USDA’s Animal and Plant Health Inspection Service (APHIS) to take enforcement action against these AWA violations:
- Lolita’s tank, which is the smallest orca tank in North America, is 13 feet shorter than is required by the Animal Welfare Act (Section 3.104).
- Lolita has no shade to protect her from direct sunlight and no protection from the weather, including hurricanes. Her exposure to sun and weather violates Section 3.103(3)(b) of the Animal Welfare Act.
- Lolita’s pool does not meet the perimeter fence requirements to keep animals and unauthorized people out, nor does it protect her from abuse and harassment by the public. [Sections 3.103(3)(c) and 3.101(2)]
- Lolita has not been in the company of another orca since 1980. This highly social marine mammal is subjected to this solitude in the unfounded belief that her dolphin tank mates are an acceptable replacement for a member of her own species. Only a related family member would be appropriate as Lolita’s companion. [Section 3.109]
The refusal of APHIS to enforce the AWA for Lolita, thus allowing the Miami Seaquarium to maintain its license to keep her in her minuscule sunbaked pool, is especially appalling because Lolita is unique among the captive orcas in North America in her potential to be returned to her orca family in her native waters. Lolita was captured in Puget Sound from the Southern Resident community of orcas, which is the most intensively and comprehensively researched cetacean population worldwide. She is a member of the L pod, and her mother is still alive. This orca community has intense, lifelong matrilineal bonds: the orcas never leave their mothers, forming large family groups with complex social systems. Lolita continues to make the unique calls of her L25 subpod, named for its 82-year-old matriarch. Her family pod still lives in Puget Sound. Because Lolita was old enough at capture to have learned how to catch fish and still speaks her pod’s dialect, there is every reason to believe that she can be successfully reintegrated with her family in Puget Sound. And although at age 44 she is the oldest surviving captive orca in the world, she is still a young, healthy adult; in the wild her potential lifespan will be much longer than it will be in captivity. Cetacean experts have plans in place to retire Lolita from the Miami Seaquarium, reintroduce her safely to Puget Sound, and reintegrate her with her family if she chooses. Otherwise, Lolita would be cared for safely in a baypen in Puget Sound.
I am definitely not the first person that has asked APHIS to enforce the Animal Welfare Act for Lolita nor will I be the last.
Our friends at The Orca Project and OrcaNetwork have just publicized “Calls For Action” asking the public and media to help us take Lolita’s case to the next level.
Hopefully, you will be the next to join in this action, voice your concerns and support the proposed retirement of Lolita from the Miami Seaquarium.
What You Can Do To Help Lolita!
The OIG has a “Hotline” for reporting violations related to USDA programs such as fraud, employee misconduct, mismanagement, conflict of interest, etc. The “Hotline” tips can be submitted online, by email, by phone, by mail. Here’s the link to the OIG’s hotline: http://www.usda.gov/oig/hotline.htm
Use these sample letters and email contacts provided by the OrcaNetwork and The Orca Project to send to APHIS
PLEASE TAKE A MOMENT TO SIGN THIS PETITION created by Hunter Shaffer a 13-year-old disabled activist from New York State who is dedicated to retiring Lolita to her native waters in Washington. Shaffer has gathered over 1,700 signatures on a petition asking APHIS to help “retire Lolita from the Miami Seaquarium, and rehabilitate her in Puget Sound.” Please sign and share widely.
I’d like to give special thanks to Howard & Susan of OrcaNetwork for their dedication to Lolita for so many years.