Judge Dismisses Lawsuit to Free Lolita the Orca
For Immediate ReleaseContact: Shari Tarantino, President,Orca Conservancy | 206 379-0331
Judge Dismisses Lawsuit to Free Lolita the Orca
This ruling comes as no surprise to Orca Conservancy. As the founders of the Free Lolita campaign in 1996 and as petitioners and then successful litigants in the 2004 U.S. District Court case that got the Southern Resident Community protection under the Endangered Species Act (ESA), we were appalled by the horrendous strategy undertaken by the lawyers at PETA, Animal Legal Defense Fund (ALDF), and their partners, the orca awareness group Orca Network, to force NOAA Fisheries to include Lolita/Toki under the ESA and then use that designation to litigate her home to her family. It was a loser right out of the gate. As we told Jared Goodman of PETA, we felt it was a high-risk and needlessly confrontational tactic that had no chance of winning, but most importantly in losing could result in her living the rest of her life in the smallest killer whale tank in the U.S. PETA didn’t listen — which is shockingly myopic, as Goodman and his colleagues might have learned something from a group that did successfully sue the feds.
First of all, PETA, ALDF and Orca Network gave NOAA a great excuse not to act to retire Toki by petitioning for her inclusion on ESA. The agency was thrilled to get that petition, no doubt. And as of today, thanks to some bad lawyering, we’ve got a legal precedent that not only could keep Toki in that tank for the rest of her life, but possibly others like Corky. Not to mention what this could mean to other captive ESA-protected animals in captivity. Orca Conservancy finds it deeply offensive that PETA, ALDF and Orca Network never assisted in our lawsuit to get the SRKWs listed — and in Orca Network’s case, actually fought against it — and yet presumed to ride our coattails (and raise a lot of money) to use the ESA victory we secured to roll the dice with this whale.We also pointed out the obvious then and will now — how could these attorneys have anticipated that they could persuade the Court that under ESA’s section 9(a)(1) that MSQ should be wrested of ownership because it "gravely threatens or has the potential to gravely threaten the animal’s survival” when by all accounts, even theirs, translocating a 52-year-old orca that’s been in captivity for 46 years some 3,000 miles absolutely puts her in some danger? Why do these people live in an echo chamber? As a litigator you have to assume that the judge doesn’t give a damn about animal rights and “orca awareness.” She’s just concerned about the law. And feds only care about today’s to-do list. Forcing NOAA to include Toki under ESA is absolutely what we DIDN'T want to do, because of the inherent risk of moving an ESA-protected orca, and the portended risk the feds see in reintroducing her to a protected wild population. We needed to keep her out of that bureaucratic box to have any shot of undertaking this unprecedented and risky effort. And according to Jeff Geragi, the president of the Animal Activists Network, not pursue “endless litigation” but rather a “bona fide plan” that leads to "an actual sea pen, not the hollow promise of a non-existent ‘sanctuary." And as Judge Ursula Ungaro ruled, take the issue up with lawmakers, where the argument should be made, and as we’ve said for 20 years now, engage Miami Seaquarium and its parent company in a respectful, constructive way. Whether it was Keiko, the 2001 Dungeness stranding, A73/Springer or L98/Luna, or some of the dolphin releases that Jeff Foster has done over the years, what succeeded was the result of cap and anti-cap people working together, not suing each other. Of course Orca Network and PETA wouldn’t know that, because neither had anything whatsoever to do with those efforts.Whereas we would’ve loved to be wrong on this one and see a decision today that was favorable for Toki’s retirement, Orca Conservancy doesn’t believe this ruling was “narrow” or unexpected, or even unprecedented. The judge got it right, because the litigants got it wrong. It’s a sad day for the Southern Residents, Toki, and we think animals in captivity everywhere — they are the losers today. And they don’t get paid when they lose, like lawyers. We strongly encourage anyone who has donated money to Howie Garrett and Orca Network to get this whale home to contact them immediately and demand an explanation. Or ask for your money back. Because today, you just contributed to a very beautiful and potentially valuable and contributing member of the Southern Resident Community being imprisoned for life. Human greed and ignorance put her into that tank in 1970, and the same may keep her there forever.One thing is certain, Orca Conservancy certainly hasn’t given up hope for Toki.