USDA Rule Lolita's tank illegal

  • by: Carrie Anderson
  • recipient: Secretary of Agriculture Tom Vilsack and Kevin Shea Administrator of the Animal Plant Health Inspection Service

Lolita was one of the Orca's kidnapped in Puget Cove in the 1970's. She is held at a tank that is too small for her and violates many aspects of the Animal Welfare Act.

Her family is still in the Puget Sound area and scientists have determined that her mother is still part of the pod. They feel that she can be successfuly released. Her pod is part of the Endangered Species Act and Lolita should be included in that and her treatment at Seaquarium violates numerous parts of the Animal Welfare Act. She is kept isolated in the smallest tank in the nation for an Orca.

The Animal Legal Defense Fund and PETA are currently suing the National Marine Fisheries. There should be no renewal for Seaquarium's AWA license. The USDA and NMFS have not followed the law when it comes to Lolita's welfare.

Please find the below letter from the Send Lolita Home Project-This, per their site, can be copied and pasted into a wod rprogram and sent to the USDA prior to the January 2014 decision.

The Lolita Come Home Project

Send the letter below to ask the USDA to rule Lolita's tank illegal.

Look here for background on The Lolita Come Home Project.

Addressing our concerns to the Animal and Plant Health Inspection Service is probably the most effective way to express your wish to see Lolita return to her home and family.

The obstructions to Lolita's return to her home and family are twofold. First, the Seaquarium owner, Arthur Hertz, has refused to consider any request to retire her or to consider that Lolita is in danger in any captive facility and that she can and should be returned to Puget Sound for retirement. 

Although the whale tank at the Seaquarium violates several of the marine mammal provisions of the Marine Mammal Protection Act, the USDA has consistently ignored violations, mismeasured the tank, and for at least 20 years has repeated Mr. Hertz' promise that he will build a new tank. 

Since there is a better chance of persuading the USDA to uphold the law than to persuade Mr. Hertz to understand Lolita's needs and abilities, we are asking Lolita supporters to please write, phone, email or visit the USDA to request that they at long last perform their duty.
Please copy and paste the following letter into a word processor, add to it if you wish, make it yours, and send it to Tom Vilsack, Secretary of Agriculture, and Kevin Shea, Administrator of the Animal Plant Health Inspection Service (APHIS). Thank you.
Secretary Tom Vilsack Rm 200-A Whitten Bldg U.S. Department of Agriculture  14th & Independence Ave., SW  Washington, DC 20250  202-720-3631 Email: USDA Telephone: 202-720-2791 USDA Fax number: 202-720-2166 
cc: Kevin Shea Acting Administrator  Animal and Plant Health Inspection Service  U.S. Department of Agriculture  4700 River Road, Unit 97 Riverdale, MD 20737-1234 Email:
Dear Sec. Vilsack: 
I am writing to request you to inspect the whale tank and stadium at the Miami Seaquarium with regard to numerous Animal Welfare Act Regulation Violations:
• Perimeter Fence & Protection from Abuse and Harassment: Lolita’s pool does not meet the requirements to keep animals and unauthorized people out nor does it provide protection from abuse and harassment by the viewing public.
• Protection from Weather and Direct Sunlight: Lolita is not afforded protection from the weather or from direct sunlight to benefit her health and well-being.
• Space Requirements for Orca: The most egregious violation which has not been enforced is that of Lolita’s pool size, comparable to that of a bathtub for a marine mammal of her size.
• Housing with Compatible Animals: Lolita has not been in the company of another orca since 1980. This highly social animal is subjected to this solitude with the unfounded belief that her dolphin tank-mates are an acceptable replacement for a member of her own species. 
• Emergency Contingency Plans: The wellbeing of Lolita and the other marine mammals at MSQ are now being threatened by the Gulf oil spill and MSQ and APHIS have neglected to enforce Emergency Contingency Plan requirements.
• Pool Environment Enhancements: Non-food objects are utilized in Lolita’s pool for stimulation which may subject her to injury through ingestion.
• Hurricane Threats with no Plan to Protect Marine Life & Contamination of Biscayne Bay 
Please see Lolita the Orca; Facts, Legal Issues and How To Get Her Home for further information on all these infractions.
It is extremely unlikely that the Seaquarium will build a new tank for Lolita. Since at least 1978 the USDA has reassured critics with the promise that a new tank would soon be built on the Seaquarium grounds for Lolita. Lolita is nearing the end of her show business career one way or another, and it is virtually impossible to capture orcas worldwide or to purchase one on the open market. Despite many captive births since 1985, the number of orcas in captivity has dropped from over 50 in the mid-1990's ago to around 41 in 2011. Mr. Hertz will not invest in a big new tank with the likelihood that there will be no orca alive in Miami or available on the market to perform in it.
The existing tank is, by the intent of the AWA, illegal and is the most egregious violation. The minimum horizontal dimension in this enclosure, from pool's edge to the work station is only 35 feet. The Animal and Plant Health Inspection Service (APHIS) regulations for the humane handling, care, treatment, and transportation of marine mammals (9 C.F.R. Section 3.104 - Space Requirements) state that the primary enclosure for a killer whale (Orcinus orca) must have a minimum horizontal dimension (MHD) of no less than 48 feet. Measuring over and ignoring the slideout station to the back of the medical pool gives an MHD of 60 feet, but only by illegally ignoring that the station presents a concrete wall that obstructs Lolita's ability to travel to the medical pool in that dimension. 
The intention of the space requirement regulations found at Section 3.104 -- the MHD was to describe the minimum distance required for a straight line of travel across the narrowest point of a primary enclosure, not to describe the circumference of said enclosure. 
Two, whenever an animal is confined in the Seaquarium's medical pool under veterinary supervision, this area behind the work station is not part of the primary enclosure. This is in violation of Section 3.104 of the APHIS regulations. 
Lolita has been without adequate space for decades. APHIS has been aware of this on-going violation, yet has consistently failed to enforce its own regulations and the Animal Welfare Act. Therefore, I strongly urge APHIS to address this situation immediately. 
Thank you for your prompt consideration of our concerns regarding this matter. 

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