Questions & Answers on NOAA Fisheries' Final Rule on a Petition to include Lolita in the ESA Listing of Southern Resident Killer Whales (February 2015)

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 only 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 did NOAA Fisheries review the petition to revise the endangered listing of Southern Resident killer whales to include Lolita?

A.  For context, anyone can petition the Secretary of Interior or Commerce to list or delist a species under the Endangered Species Act. What triggered this review was a petition submitted by ­­the People for the Ethical Treatment of Animals Foundation on behalf of the Animal Legal Defense Fund, Orca Network, and several individuals to the Secretary of Commerce on January 25, 2013. That petition requested the agency revise the endangered listing of Southern Resident killer whales to remove the exclusion of captive whales from the description of the DPS and 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 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. We also requested public comments.

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

A. 
On January 27, 2014, we published a proposed rule to remove the exclusion of captive whales from the DPS listing.  The proposed rule considered information in the recent July 2013 status review of the Southern Resident killer whale distinct population segment, completed in response to a petition to delist the Southern Resident killer whales.  We requested comments from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and other interested parties concerning Lolita’s genetic heritage and our proposal to remove the exclusion of captive whales from the DPS listing.  In addition, we requested peer review of the information about Lolita in our July 2013 status review, which we relied upon in our proposed rule. 

Q.  What does this final rule say?

A.
  NOAA Fisheries finds that Lolita’s captive status, in and of itself, does not preclude her listing under the ESA.  Accordingly, we are removing the exclusion for captive whales from the regulatory language describing the Southern Resident killer whale DPS. The best available genetic information and sighting history of killer whales supports recognizing Lolita as a member of the Southern Resident killer whale population and, as such, Lolita is no longer excluded from the listed Southern Resident killer whale DPS. 

Q.  What information supports the conclusion that Lolita is from the Southern Resident killer whale population?

A.
  Taken together we find that the mtDNA and microsatellite DNA analyses provide a strong case that Lolita is a Southern Resident.  In addition, the available information regarding the location of Lolita’s capture and the sighting patterns of different populations of killer whales also support Lolita’s identification as a Southern Resident killer whale.  NOAA Fisheries’ Northwest Fisheries Science Center is engaged in ongoing genetic studies to learn about the mating patterns of the Southern Residents, historical range and population size, and genetic relationships between different killer whale populations.

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

A.
  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.

Specific activities that we believe could result in violation of ESA section 9 prohibitions against “take” include, but are not limited to, releasing a captive animal into the wild.  We received many comments addressing the type and scope of activities that might trigger section 9 concerns and/or warrant consideration for an ESA section 10 permit. Should Miami Seaquarium apply for a section 10 permit, the process would involve a Federal Register notice of receipt followed by a public comment period.

 

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, Atlantic sturgeon, and five species of foreign sturgeon.  Also, based upon the purposes of the ESA and its legislative history, the U.S. Fish and Wildlife Service (USFWS) concluded that the ESA does not allow captive animals to be assigned different legal status from their wild counterparts.  Subsequent to the petition regarding Lolita, the 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.  The USFWS also published a 12-month finding in June 2013 that delisting the captive members of three listed antelope species was not warranted.

Q. Does this listing decision affect Lolita’s care at the Miami Seaquarium?

A. 
Many commenters on the proposed rule were concerned about Lolita’s care, including her pool size.  Lolita’s care at the Miami Seaquarium is generally under the purview of the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS), as described in the Animal Welfare Act (AWA).  Captive care requirements are beyond the scope of our response to the petition; thus, comments pertaining to AWA compliance are not addressed in this final rule. There is ongoing litigation regarding Lolita’s care (Animal Legal Defense Fund v.  Elizabeth Goldentyer, USDA, and Marine Exhibition Corporation).    

Q. What is NOAA Fisheries’ role with respect to marine mammals in public display?

A.
NOAA Fisheries’ Office of Protected Resources, along with the USFWS for species under their jurisdiction, issues permits for the take and import of marine mammals covered under the Marine Mammal Protection Act and/or the ESA.  NOAA Fisheries also administers the marine mammal stranding network and places non-releasable stranded marine mammals in public display facilities and maintains a national inventory to track births, deaths, and transfers and transports of marine mammals.  For more information, please visit: http://www.nmfs.noaa.gov/pr/permits/public_display.htm

Q.  Does this listing decision mean Lolita will be released to the wild?

A.
  That question was not part of this rulemaking

Q.  Whose decision is it to release Lolita to the wild?

A. 
The issues surrounding release of any captive animal are numerous and complex. They would involve both the ESA and the Marine Mammal Protection Act (MMPA) and are not analyzed in the listing rule. This question would be better evaluated in the context of a specific ESA section 10 permit application. Impacts to the wild population would need to be evaluated under the MMPA.  Under Section 10 of the ESA, NOAA Fisheries can issue permits authorizing the “take” of protected animals for scientific or enhancement purposes.  The ESA's limitations on commercial activity are quite specific and relate to activities such as exporting, selling, or transporting animals, none of which are being proposed by the Miami Seaquarium at this time.  The ESA's commercial activity provisions are not at issue in the listing decision, nor in the Seaquarium's continued holding of Lolita.

Q. Can NOAA Fisheries require the Seaquarium to release Lolita to the wild?

A.
  No. At this time, the Miami Seaquarium has not submitted a proposal to move or release Lolita.  Any such proposal would include rigorous review by the scientific community, the Marine Mammal Commission, and the public, and be subject to an associated National Environmental Policy Act (NEPA) analysis. 

Q. Would Lolita survive in the wild? What’s NOAA Fisheries’ stance on her release to the wild?

A.
  Release of captive animals could involve risks including disease transmission, ability of released animals to adequately forage, social integration, and behavioral patterns developed in captivity that could affect the behavior of wild animals.  Based on our extensive research on this species, we are concerned about any experimental release and the potential impacts to the endangered Southern Resident killer whale population in the wild.

Q.  What can be learned from other reintroduction efforts for killer whales?

A. 
Previous attempts to release captive killer whales and dolphins to the wild have generally proved unsuccessful.  Two high-profile cases of killer whale reintroduction efforts underscore the concerns about release of captive animals to the wild and effects of habituation to humans: (1) the death of Keiko in the North Atlantic in 2003, and (2) the death of Luna from the Northern Resident population of killer whales in Canada in 2006.

Simon et al. (2009) concluded that Keiko was a poor candidate for release because of his dependence on human care, age, long history of captivity, prolonged lack of contact with conspecifics, and strong bonds to humans.  Luna, also known as L98, was a young male from the Southern Resident observed living alone in Nootka Sound, B.C., Canada, in 2001 (Francis and Hewlett 2007).  A rescue and reintroduction effort was initiated for L98 in 2004, but he died in 2006 from a boat propeller strike.  L98’s chronic interactions with humans directly contributed to his death by conditioning him to approach people and vessels, which led to a fatal collision with a tug boat.

In 1996, NOAA Fisheries and the Marine Mammal Stranding Network rescued two long-term captive bottlenose dolphins that were illegally released to the wild from a facility in the Florida Keys.  The dolphins had not been properly conditioned for release, and were not in their natal waters, so they sought out humans for food and interaction.  Both dolphins suffered malnutrition and injuries consistent with vessel collisions, which necessitated an extensive rescue operation and permanent placement at human care facilities (Spradlin and Terbush, 1999).

One case highlights the essential elements for a successful reintroduction.  Springer, also known as A73, was successfully reintroduced to her family group in the Northern Resident community in 2002 after a short holding and assessment period in a net pen.  Springer was young, she was separated from her family for only a few months, her handling and rehabilitation was short (30 days), and human interactions were minimized to avoid her dependence on people.  These elements in combination with her health test results and ability to successfully catch live fish made her a suitable candidate for reintroduction.  Other studies of dolphin releases found similar factors contributed to success (Wells et al. 1998).

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 and consists of approximately 80 individuals. These whales are the "resident" type, spending specific periods each year in the San Juan Islands and Puget Sound. The Southern Residents feed mostly on salmon. NOAA Fisheries’ priority remains the protection and recovery of wild Southern Resident killer whales.  Last year, NOAA Fisheries released a special report highlighting the accomplishments of 10 years of research and conservation on this population. Information on the ESA listing, status reviews, recovery planning, and critical habitat for Southern Resident killer whales is posted on our web page at:

http://www.westcoast.fisheries.noaa.gov/protected_species/marine_mammals/killer_whale/index.html