MIAMI - Lolita is making history.
NOAA Fisheries confirms that Lolita, the Miami Seaquarium's one and only killer whale, is the first captive Orca of her kind to be considered on the endangered species list.
And now, federal officials deciding her fate want to hear from you.
On Monday, NOAA published its proposed rule which would amend the list of endangered species to include specifically Lolita.
That kicks off a 90-day public comment period. Comments must be received prior to March 28, 2014.
Last year, People for the Ethical Treatment of Animals (PETA) petitioned federal officials to review her case.
Lolita has called Miami Seaquarium home for 44 years. Jared Goodman, the Director of Animal Law at PETA, told Local 10 her tank at the Miami Seaquarium is the smallest Orca tank in North America.
PETA and other groups have been fighting for Lolita's release for years. Activists have held protests outside the marine park's Key Biscayne location and have taken their message to social media
Goodman believes the popularity of the chilling documentary "Blackfish" has played a huge role in building awareness about Orcas in captivity.
"PETA has been pushing for years for these Orcas to be released to coastal sanctuaries and while tons of supporters have been behind that effort, 'Blackfish' has been phenomenal at getting that message out even more to an audience that perhaps wasn't being reached before," Goodman said. "The response has really be phenomenal and once you see "Blackfish" and see the orcas separated from their mothers and the conditions in which they live and the effects of captivity, it's just impossible to deny that they are far too intelligent and social to be in these concrete bathtubs."
NOAA Fisheries says Lolita was captured off Puget Sound, Washington in 1970 when she was between 4-and-8 years old. She was sold to the Miami Seaquarium where she remains the park's only Orca. She is a member of a group of pods that NOAA Fisheries listed as endangered back in 2005. Pods J, K and L are what federal officials call a "distinct population segment" because they are a unique population with unique genetics and language. Lolita's family was from the "L-pod".
NOAA Fisheries said it will release a final rule a year from now.
What is unclear, is what will happen to Lolita should NOAA Fisheries categorize her as an endangered species.
PETA, and other like-minded groups, would like to see her return to the wild.
"We are advocating that Lolita be sent to a coastal sanctuary in her home waters, in the Pacific Northwest where her mother still thrives at 85 years of age," Goodman said. "Orcas in the southern resident killer whale populations from which Lolita was taken stay by their mother's side their entire lives and have unique dialects and Lolita was shown to remember her family's dialect even after decades of captivity. There is actually a sanctuary set aside for Lolita in her home waters already that the property owners agree to let her retire to and it's a cove in the area where her family passes by regularly and if she was transferred there she would absolutely have regular around the clock care to make sure every one of her needs is being met."
A NOAA Fisheries spokeswoman said they do believe that could pose a risk to Lolita, even members of other pods, given the decades she has spent in captivity.
After a final rule is made NOAA Fisheries would consult with the Fish and Wildlife Service to review cases of other kinds of animals that have been added to the endangered species list while in captivity.
Her fate is nowhere near certain but Goodman said PETA won't stop trying to free Lolita.
In a written statement the Miami Seaquarium's General Manager Andrew Hertz told Local 10: "This decision is not final. Based on NMFS' announcement, Lolita will continue to be an ambassador for her species from her home at Miami Seaquarium.
Some organizations have called for releasing Lolita into the wild despite spending more than 40 years at Miami Seaquarium. NMFS stated in its findings that releasing a captive animal into the wild could be considered a violation of the Endangered Species Act (ESA), because "release of a captive animal into the wild has the potential to injure or kill not only the particular animal, but also the wild populations of that same species…"
In its release, NMFS' proposed finding that an organization that is in compliance with the Animal Welfare Act, is by default, in compliance with the relevant Endangered Species Act provisions. Even if Lolita is officially deemed part of an endangered species group, Miami Seaquarium would already be in full compliance with any additional requirements and protections that the new designation might impose. The USDA has repeatedly said that Lolita's habitat, "far exceeds the minimum requirements established by the AWA (Animal Welfare Act) regulations."
Lolita has been part of the Miami Seaquarium family for almost 44 years and is as active and healthy as ever, a true testament to her care."
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