By Howard Garrett, co-founder, Orca Network

Lolita, first called Tokitae, is a female orca in her mid to late 40s who was born somewhere in the range of her extended family, the Southern Resident orcas, but was captured and ripped from her family as a youngster in 1970  ̶43 years ago. She probably still remembers her family, so regardless of her long confinement she’s still a member of this clan of orcas that have been seen and documented in the Salish Sea for months of each year since field studies began in 1973. For over four decades she has been kept in a 35′ x 80′ x 20′ deep concrete bowl to attract spectators to a theme park in Miami. Since 1995 we have conducted a public awareness campaign to present the case for her return home.

The campaign for Lolita’s release and retirement was based on information learned by Ken Balcomb, founder and chief scientist of the Center for Whale Research on San Juan Island, while researching how to release Keiko in 1993-4. In May of 1993 Ken was asked by the producers of Free Willy to help design a plan to give Keiko, captured off Iceland in 1979, a better life. He turned his research skills to devising the best and safest possible program to eventually allow Keiko to swim in his natal habitat once again. In the summer of 1993 Ken compiled a list of every documented release of any whale or dolphin, and a bibliography of every conceivable resource to help guide the endeavor. Though Ken was initially given the job by Reino Aventura in Mexico City, and had the full backing of Craig McCaw, the wealthy benefactor who eventually financed Keiko’s rehabilitation and release, he was relieved of his involvement in the project in early 1994.

Undaunted, Ken had known all along that Lolita/Tokitae was a far better candidate for return to her native habitat. After all, we were familiar with every individual in her family and saw them for many months every year. So Ken started working on Lolita’s retirement plan, and on March 9, 1995, WA Governor Mike Lowry, Sec. of State Ralph Munro and Ken held a media event in Seattle to announce the start of the Lolita Come Home campaign. The first problem for the campaign was that there wasn’t actually any campaign, or even a phone number to call if anyone wanted to help.

Thus was born the non-profit Tokitae Foundation in April, 1995, dedicated to raising public awareness about the feasibility of safely returning our dear Lolita back to her home and family. Our campaign benefited from some early media exposure, like the 1995 Seattle Times magazine cover story on our proposal for Lolita, followed by a one-hour special on KOMO-TV in Seattle called “Lolita – Spirit in the Water” and the NBC Dateline segment in which a tape of Lolita’s family was played to her, but we ran into a fortress wall of denial from the owners of the Seaquarium in Miami.

In January 1996 Keiko was moved to his custom-made tank in Oregon where his health vastly improved. Most media attention went to him, mainly covering the debates raging about the advisability of his potential release. Still, our hopes rested on Keiko’s big shoulders for his successful release to show the world that it could be done.

From September 1997 to November 1999 I lived in Miami to make the case for Lolita’s return in demonstrations and various media articles and generally stir up awareness of her retirement plan, but after all was said and done the Seaquarium was still making about $1 million a year off Lolita’s circus routines and still refused to consider our proposal. Back on Whidbey Island, board member and soon-to-be spouse Susan Berta invigorated the Lolita campaign with her passionate dedication, including organizing annual Penn Cove Capture Commemoration events each August 8, which have continued ever since.

For the next several years we were challenged to come up with new ways to publicize Lolita’s predicament and our retirement plan. We cheered when Keiko was transported some 6,000 miles to Iceland in 1998, where he gained strength and often caught his own fish. His actual progress was encouraging, but his handlers’ media messages were scant and unclear at best, so the public remained confused and all sides of the debate were left with only their original opinions. When Keiko swam across the Atlantic in August of 2002 he fed himself just fine and arrived in Norway tired but healthy, but critics put up such a stink about the project that the entire effort was widely considered a failure. When Keiko died in Norway in December, 2003, our great hope for demonstrating how a long-term captive could one day swim free became redefined as a great farce. The new film “Keiko-The Untold Story” helps to set the record straight about Keiko’s real success story.

The only bright spots over the next few years  were a series of demonstrations in Miami re-started by Shelby Proie, who was a catalyst for Miami anti-captivity activists while lighting up the media and social networks with her determined focus on rescuing Lolita.

Back in the Pacific NW, we had changed our organization’s name to Orca Network in 2001 and were focused on connecting people with whales to increase awareness of the amazing orcas, gray whales, humpbacks and minke whales in the Salish Sea. We also devoted ourselves to advocating for Chinook salmon restoration to help meet the nutritional needs of the Southern Residents, who had suffered a 20% drop in population by 2001 and were declared Endangered under the ESA in 2005.

At that time there didn’t seem to be much new to say about Lolita, and very little opportunity to say it anyway, until that pivotal, fateful 24th of February, 2010, when a distressed captive male orca named Tilikum finally had enough of it and brought an end to the life of his closest human companion, SeaWorld head trainer Dawn Brancheau. The media response to that traumatic event was immediate, intense, and sustained, and has only ramped up since that day. To our surprise, virtually every report has included some mention of the essential insight that orcas should never be held captive in the first place.

Within days four former SeaWorld orca trainers stepped forward, each one willing and able to present the case against orca captivity in all sorts of media, including brilliant use of social media. Within months OSHA charged SeaWorld with endangering their employees, elevating the issue to a federal case and bringing out documents and videos never before seen outside SeaWorld. By mid-2010, intrigued by Tilikum’s violent behavior, writer Tim Zimmermann published a feature-length expose of the entire history of orca captivity in Outside magazine. Soon best-selling author David Kirby noticed the friction between reality and corporate myth-making brought out by the tragedy and SeaWorld’s obstinate denials of culpability, and saw the ingredients for his next book, Death at SeaWorld, now a best-seller.

About that time documentary filmmaker Gabriela Cowperthwaite wondered why a seemingly docile captive orca would suddenly thrash and dismember his trainer. She turned to Tim Zimmermann and drew from his research and counsel to frame her blockbuster film, Blackfish, now storming across the country and the world conveying the clear message that captivity severely stresses and kills orcas. Lolita isn’t mentioned in Blackfish, but the film has the power to change how people view captive orca shows everywhere.

In late 2010 Orca Network was contacted by some attorneys associated with People for the Ethical Treatment of Animals and the Animal Legal Defense Fund. Entire teams of top-notch attorneys were starting to churn out intel and strategies to challenge the captive orca industry’s legal right to exploit these magnificent, intelligent, highly social, wide-ranging mammals for entertainment revenues. Within months three important legal initiatives were launched.

First was a 2011 suit against SeaWorld that named five captive orcas as Plaintiffs. Based on the 13th Amendment against slavery, the suit claimed that the captured orcas were deprived of life, liberty and the pursuit of happiness:

Plaintiffs were forcibly taken from their families and natural habitats, are held captive at SeaWorld San Diego and SeaWorld Orlando, denied everything that is natural to them, subjected to artificial insemination or sperm collection to breed performers for Defendants’ shows, and forced to perform, all for Defendants’ profit. As such, Plaintiffs are held in slavery and involuntary servitude.

Named in the suit as “Next Friends” of the Plaintiffs were dolphin activist Ric O’Barry, former SeaWorld trainers Samantha Berg and Carol Ray, and me. The suit was ultimately dismissed, as expected, but not before generating widespread public understanding that for orcas, captivity is indeed equivalent to slavery.

Next was an ingenious plan based on the discovery that the Seaquarium is quietly granted a permit to operate their whale shows each year by APHIS (the Animal and Plant Health Inspection Service) under the Dept. of Agriculture. The first step was to submit highly qualified expert affidavits to APHIS to establish that certain violations of the Animal Welfare Act by the Seaqarium – lack of space, the hot midday Miami sun, and utter loneliness – caused Lolita to suffer. Then Lolita’s Lawyers filed an official request to APHIS to deny the permit on those grounds. Then, when the permit was routinely granted as expected, we sued the USDA for failure to uphold those provisions of the AWA by granting the permit. That suit is now pending and will be heard later this year in Miami federal district court. If it succeeds, and the letter of the law seems likely to uphold the suit, the permit may be revoked, and the Seaquarium will no longer be allowed to hold Lolita in that tank.

The third legal implement aimed at the Seaquarium’s fortress wall resulted from her attorneys’ discovery that the language in the ESA listing for the Southern Resident orcas  ̶Lolita’s family  ̶includes a paragraph that specifically:

“does not include killer whales from J, K, or L pod placed in captivity prior to listing, nor does it include their captive born progeny.”

That case is also still pending as a procedural matter within the National Marine Fisheries Service (NMFS), which has until January, 2014 to arrive at a determination. Recent precedents concerning endangered chimpanzees seem to indicate that NOAA will rule in our favor. In June, the United States Fish and Wildlife Services responded to a petition by animal protection groups by issuing a draft rule that would classify all chimpanzees as endangered. If the new rule is enacted, it would make it extremely difficult to use chimpanzees for entertainment or experimentation. The relevance of this ruling for a member of an endangered orca population held in captivity for entertainment is obvious. If the petition for Lolita succeeds, it will probably be followed by further legal action to mandate that Lolita should therefore be allowed to return to her home waters and be given the ability to communicate with her family.

Public perceptions and emotions about holding orcas in captivity are shifting. The orca entertainment industry is supported entirely by consumers spending discretionary income that can easily be spent elsewhere. It won’t take much of an emotional and perceptual shift to change the experience from wholesome fun to animal abuse. Orcas are very expensive to maintain in captivity, and probably cost even more to advertise, so if only a few percent of those consumers don’t buy a ticket the profit margin from the entire enterprise may dry up, and the economics of the industry could turn a 180 in a very short time.

As the consuming public begins to disapprove of orca captivity, the two cases now pending are applying legal leverage to pry Lolita out of the tank and back to her familiar waters. Prospects have never been better for the tide to finally turn and wash Lolita home at last. Every day that she survives in the tank is another unlikely miracle, given the statistics of survival in captivity, and yet she appears to be in relatively good health and contented spirits. Even compared with most orcas she seems exceptionally strong. From a human perspective her patience and good nature are difficult to comprehend, but if we can get her home, her family will probably understand her better.