Lolita’s long legal story ended with one sentence from the U.S. Court of Appeals for the Eleventh Circuit Tuesday, but the judges made it clear in another order last month that they want to leave the ending open for future cases involving orcas and other captured animals.
The full court denied a petition for en banc reconsideration of a failed effort by animal rights activists to move the 8,000-pound Orca from the Miami Seaquarium to a West Coast seaside sanctuary. The denial cemented the January ruling from Eleventh Circuit Judges Susan Black and Frank Hull and visiting U.S. Court of International Trade Judge Jane Restani. The panel affirmed U.S. District Judge Ursula Ungaro of the Southern District of Florida, who granted the Miami Sequarium summary judgment in June 2016.
But the three judges for the Eleventh Circuit had more to say in a previous order denying a petition for panel rehearing.
“Lolita presents a unique case because she: (1) is of advanced age at 51, having surpassed the median life expectancy for wild, female Southern Resident Killer Whales; (2) has received medical care for approximately 48 years and continues to receive medical care; (3) has already been subject to an unsuccessful federal challenge to the conditions of her captivity; and (4) has no realistic means for returning to the wild without being harmed,” the panel said in a nine-page order Oct. 9 denying the request to reconsider.
“The outcome here avoids tying the hands of future courts in cases involving younger, healthier animals who may be faced with different circumstances,” the panel said. “It also avoids signaling unintentionally that an animal’s age and the level of medical care it receives are determinative. Put simply, based on the undisputed evidence and the unique circumstances of this case, the panel determined that no reasonable fact finder could conclude that Lolita’s injuries present a ‘threat of serious harm’ sufficient to trigger liability.”
The judges suggested that Lolita could face more harm if she were returned to the wild after so many years in captivity.
Lolita was between 3 and 6 years old when she was captured, the judges said.
Elliot Scherker of Greenberg Traurig in Miami argued the case for Miami Seaquarium. Scherker said Friday he needed to check with his client before commenting. The Seaquarium did not have a response immediately.
Delcianna Winders argued for the Animal Legal Defense Fund, Howard Garrett, the Orca Network and People for the Ethical Treatment of Animals. Winders referred a request for comment to a PETA spokesman: David Perle, assistant media manager.
“This lawsuit was a lifeline for Lolita,” Perle said. “PETA argued that the Seaquarium’s confinement of her to the world’s smallest orca tank—in which she’s displayed with incompatible species, without adequate protection from the sun, and without any companions of her own kind—subjects her to illegal harm and harassment in violation of the Endangered Species Act. While the appeals court reversed the district court’s prior ruling that such ‘harm’ or ‘harassment’ must be potentially deadly to constitute a violation of the ESA, it summarily concluded before a trial could be held that the injuries from which Lolita suffers do not constitute ‘serious’ harm.”
Perle also shared a statement from PETA Foundation Deputy General Counsel for Animal Law Jared Goodman.
“This ruling sentences a highly intelligent, deeply lonely, and distressed orca to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom,” Goodman said. “It ignores today’s understanding of the way orcas suffer deeply in captivity, and PETA will continue pushing for Lolita’s release into a protected seaside sanctuary in her home waters.”