Questions & Answers on the NOAA Fisheries' 12-Month Finding on a Petition to Include the Killer Whale Known as Lolita in the Endangered Species Act Listing of Southern Resident Killer Whales (January 2014)

Q.  Who is Lolita?

A.  Lolita is a female killer whale captured from the Southern Resident population in 1970, who currently resides at the Miami Seaquarium in Miami, Florida.  Lolita is the last Southern Resident killer whale in captivity.  When the Southern Resident killer whale distinct population segment (DPS) was listed as endangered under the Endangered Species Act (ESA) on November 18, 2005, the distinct population segment was defined as “whales from J, K, and L pods, wherever they are found wild, and not including Southern Resident killer whales placed in captivity prior to listing or their captive born progeny.” 

Q.  Why is NOAA Fisheries reviewing the petition to revise the endangered listing of Southern Resident killer whales to include Lolita?

A.  Any person can petition the Secretary (of Interior or Commerce) to list or delist a species under the Endangered Species Act. Within 90 days after receiving a petition, to the maximum extent practicable, the Secretary must make a finding as to whether the petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted. If a petition is found to present such information, the Secretary must promptly start a review of the status of the species concerned.

      On January 25, 2013, we received a petition submitted by ­­the People for the Ethical Treatment of Animals Foundation on behalf of the Animal Legal Defense Fund, Orca Network, Howard Garrett, Shelby Proie, Karen Munro, and Patricia Sykes to revise the endangered listing of Southern Resident killer whales to include Lolita in the Endangered Species Act listing of the Southern Resident killer whales distinct population segment.  

Q.  What did NOAA Fisheries conclude about the information presented in the petition?

A.  On April 29, 2013, we found that the petition, viewed in the context of information readily available in our files, presented scientific information indicating that the petitioned action may be warranted.  The standard for determining whether a petition includes substantial information is if the amount of information presented would lead a reasonable person to believe that the measure proposed in the petition may be warranted.  The petition presented information about Lolita’s genetic heritage and consideration of captive individuals under the Endangered Species Act which we determined met this standard.

Q.  What happened after you accepted the petition to include Lolita in the Southern Resident killer whale distinct population segment?

A.  We considered information in a recent status review of the Southern Resident killer whale distinct population segment completed in response to a petition to delist the Southern Resident killer whales.  To ensure that our status review was complete and based on the best available scientific and commercial information, we also considered new information from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and other interested parties concerning Lolita’s genetic heritage and status.

Q.  What did NOAA Fisheries find and what is NOAA Fisheries proposing?

A.  Based on the best available genetic and acoustic information, we confirmed that Lolita is a member of the Southern Resident killer whale population and, as such, is a member of the listed Southern Resident killer whale DPS.  Additionally, Lolita’s captive status, in and of itself, does not preclude her listing under the ESA.  Accordingly, we propose to remove the exclusion for captive whales in the regulatory language describing the Southern Resident killer whale DPS. 

Q.  How has NOAA Fisheries or USFWS addressed captive animals in the past?

A.  NOAA Fisheries has identified captive members as part of the ESA-listed unit during listing actions in the past, such as for endangered smalltooth sawfish and endangered Atlantic sturgeon, and in the proposed listing of five species of foreign sturgeons.  Also, based upon the purposes of the ESA and its legislative history, the U.S. Fish and Wildlife Service (USFWS) has recently concluded that the ESA does not allow captive animals to be assigned different legal status from their wild counterparts on the basis of their captive status.   Subsequent to the submission of the petition regarding Lolita, USFWS published a proposed rule in June 2013 to amend the listing status of captive chimpanzees, so that all chimpanzees (wild and captive) would be listed as endangered.  USFWS also published a 12-month finding in June 2013 that delisting the captive members of three listed antelope species was not warranted. 

Q.  What will you do next in this Endangered Species Act petition process?

A.  We will gather public comments on our 12 month decision and proposed rule to include Lolita in the ESA listing of the Southern Resident killer whale DPS. Within 12 months of publication of our proposed rule, by January 27, 2015, we’ll make a final determination on the proposal.

Q.  What would inclusion in the listed Southern Resident killer whale DPS mean for Lolita?

A.   NOAA Fisheries and USFWS have a policy that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not constitute a violation of section 9 of the ESA.  The ESA does not prohibit possession of animals lawfully taken, so a permit is required only if the person possessing the animal intends to engage in an otherwise prohibited act.  Prohibited activities for ESA-listed species include, but are not limited to:

  1. “take” of the species, as defined in the ESA (including to harass, harm, pursue, hunt, shoot, wound, kill, trap capture or collect, or attempt to engage in any such conduct);
  2. delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce, in the course of a commercial activity; or
  3. sale or offer for sale in interstate or foreign commerce.

Activities that we believe could result in violation of section 9 prohibitions against ‘‘take’’ under section 9, depending on the circumstances, include, but are not limited to, releasing a captive animal into the wild.  Additionally, we consider the following activities, depending on the circumstances, as not being prohibited by ESA section 9 (and therefore not requiring a section 10 permit):

  1. continued possession of captives; and
  2. continued provision of Animal Welfare Act (AWA) – compliant care and maintenance of Lolita, including handling and manipulation as necessary for her care and maintenance, as long as such practices or procedures are not likely to result in injury.

Q.  Where can I learn more about Southern Resident killer whales?

A.  The killer whale (Orcinus orca), or orca, is found in all oceans. The Southern Resident killer whale DPS is composed of J, K, and L pods. These whales are the "resident" type, spending specific periods each year in the San Juan Islands and Puget Sound. The Southern Residents are fish-eating whales and feed mostly on salmon.  We have information on the Endangered Species Act listing, status reviews, recovery planning, and critical habitat for the Southern Resident killer whales posted on our web page at:  http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/index.html