According to the Animal Welfare Act and APHIS, the Animal and Plant Health Inspection Service, the primary enclosure for a whale Lolita's size must be a minimum of 48 feet wide in either direction with a straight line of travel across the middle. Lolita's tank is a mere 35 feet from the front wall to the slide out barrier. At its deepest point in the center the tank is only 20 feet deep. This is important because this animal has the legal right to all of the CFR's that the Miami Seaquarium is in violation of.
Section 3.103 (3)(c) Perimeter fence
“On and after May 17, 2000, all outdoor housing facilities must be enclosed by a perimeter fence that is of sufficient height to keep animals and unauthorized persons out. Fences less than 8 feet high for polar bears or less than 6 feet high for other marine mammals must be approved in writing by the Administrator. The fence must be constructed so that it protects marine mammals by restricting animals and unauthorized persons from going through it or under it and having contact with the marine mammals, and so that it can function as a secondary containment system for the animals in the facility when appropriate. The fence must be of sufficient distance from the outside of the primary enclosure to prevent physical contact between animals inside the enclosure and animals or persons outside the perimeter fence. Such fences less than 3 feet in distance from the primary enclosure must be approved in writing by the Administrator.”
Lolita’s tank does not have a 6 foot perimeter fence around it. Per the law, the APHIS administrator would have had to approve of the fence. So the question would be, was Lolita’s perimeter fence approved by the Administrator?
3.101 (2) Facilities, general
“All marine mammals must be provided with protection from abuse and harassment by the viewing public by the use of a sufficient number of uniformed or readily identifiable employees or attendants to supervise the viewing public, or by physical barriers, such as fences, walls, glass partitions, or distance, or any combination of these.”
There is no physical barrier tall enough to protect Lolita from the viewing public.
PROTECTION FROM WEATHER AND DIRECT SUNLIGHT
Section 3.103(3)(b) Shelter
“Natural or artificial shelter which is appropriate for the species concerned, when the local climatic conditions are taken into consideration, shall be provided for all marine mammals kept outdoors to afford them protection from the weather or from direct sunlight.”
Lolita’s tank has no shade structure at all. Her tank is fully exposed to the sun. The only way she can get shade is by moving around the tank as the position of the sun changes. Lolita also has no protection from the Miami hurricanes. Miami is known to be an area in the United States that is prone to hurricanes.
SPACE REQUIREMENTS FOR ORCAS
3.104 Space Requirements“
(a) General. Marine mammals must be housed in primary enclosures that comply with the minimum space requirements prescribed by this part. These enclosures must be constructed and maintained so that the animals contained within are provided sufficient space, both horizontally and vertically, to be able to make normal postural and social adjustments with adequate freedom of movement, in or out of the water. (An exception to these requirements is provided in §3.110(b) for isolation or separation for medical treatment and/or medical training.) Enclosures smaller than required by the standards may be temporarily used for nonmedical training, breeding, holding, and transfer purposes. If maintenance in such enclosures for nonmedical training, breeding, or holding is to last longer than 2 weeks, such extension must be justified in writing by the attending veterinarian on a weekly basis. If maintenance in such enclosures for transfer is to last longer than 1 week, such extension must be justified in writing by the attending veterinarian on a weekly basis. Any enclosure that does not meet the minimum space requirement for primary enclosures (including, but not limited to, medical pools or enclosures, holding pools or enclosures, and gated side pools smaller than the minimum space requirements) may not be used for permanent housing purposes. Rotating animals between enclosures that meet the minimum space requirements and enclosures that do not is not an acceptable means of complying with the minimum space requirements for primary enclosures.”
“(1)(i) The required minimum horizontal dimension (MHD) of a pool for Group I cetaceans shall be 7.32 meters (24.0 feet) or two times the average adult length of the longest species of Group I cetacean housed therein (as measured in a parallel or horizontal line, from the tip of its upper jaw, or from the most anterior portion of the head in bulbous headed animals, to the notch in the tail fluke8 ), whichever is greater; except that such MHD measurement may be reduced from the greater number by up to 20 percent if the amount of the reduction is added to the MHD at the 90-degree angle and if the minimum volume and surface area requirements are met based on an MHD of 7.32 meters (24.0 feet) or two times the average adult length of the longest species of Group I cetacean housed therein, whichever is greater.”
The minimum horizontal dimension for Lolita’s tank is 48 feet, which APHIS agrees. APHIS claims that Lolita’s tank is 60 x 80 feet, not including the medical pool in the back. Lolita is around 22 feet long. By APHIS claiming Lolita’s tank is 60 feet across from the edge of the pool to the trainer’s platform would mean you could line Lolita up in a straight row approximately 3 times to equal the 60 feet distance.Per measurements taken from Google Earth of Lolita’s tank, the measurement between the edge of the pool to the trainer’s platform is approximately 35 feet, which is 25 feet less than APHIS’s measurement of 60 feet and 13 feet smaller than what the law requires.Adding in the medical pool in the back of Lolita’s tank, which measures approximately 25 feet would coincide with the 60 foot measurement APHIS states. Yet APHIS states they did not include the medical pool in their measurements of 60 x 80 feet and the use of the medical pool does not diminish the size of the main pool.
HOUSING WITH COMPATIBLE ANIMALS
“Marine mammals, whenever known to be primarily social in the wild, must be housed in their primary enclosure with at least one compatible animal of the same or biologically related species, except when the attending veterinarian, in consultation with the husbandry/training staff, determines that such housing is not in the best interest of the marine mammal’s health or well-being. However, marine mammals that are not compatible must not be housed in the same enclosure. Marine mammals must not be housed near other animals that cause them unreasonable stress or discomfort or interfere with their good health. Animals housed separately must have a written plan, approved by the attending veterinarian, developed in consultation with the husbandry/training staff, that includes the justification for the length of time the animal will be kept separated or isolated, information on the type and frequency of enrichment and interaction, if appropriate, and provisions for periodic review of the plan by the attending veterinarian. Marine mammals that are separated for nonmedical purposes must be held in facilities that meet minimum space requirements as outlined in §3.104.”Lolita has been without the companionship of another orca for 30 years. APHIS states the Miami Seaquarium meets AWA regulations requiring that social marine mammals, such as orcas, be housed with at least one compatible animal of the same or biologically related species. Lolita has shared her tank for many years with Pacific white-sided dolphins that are, like Lolita, cetacean mammals. Lolita is a member of the Southern Resident Community of orcas in the Pacific Northwest. The Southern Residents are a social structure of orcas consisting of generations of family. There is no known Southern Resident orca leaving from their pod to live with a pod of Pacific White Sided Dolphins.
EMERGENCY CONTINGENCY PLANS
Section 3.101 (4)(b) Facilities, general
“(b) Water and power supply. Reliable and adequate sources of water and electric power must be provided by the facility housing marine mammals. Written contingency plans must be submitted to and approved by the Deputy Administrator regarding emergency sources of water and electric power in the event of failure of the primary sources, when such failure could reasonably be expected to be detrimental to the good health and well-being of the marine mammals housed in the facility. Contingency plans must include, but not be limited to, specific animal evacuation plans in the event of a disaster and should describe back-up systems and/or arrangements for relocating marine mammals requiring artificially cooled or heated water. If the emergency contingency plan includes release of marine mammals, the plan must include provision for recall training and retrieval of such animals.”
This would require the Miami Seaquarium to have a written contingency plan regarding emergency sources of water and electric power in the event of a failure of the primary sources, when the failure could affect the health and well-being of a marine mammal. They are required to have a plan for whatever the circumstance may be that would cause a failure of their primary source of water and electrical. The oil spill threat of 2010 made the absence of a contingency plan extremely negligent on the behalf of the Seaquarium. Additionally, APHIS spokesman David Sacks indicated that a Plan exists but APHIS does not have a copy of the Plan.
POOL ENVIRONMENT ENHANCEMENTS
Section 3.101(2)(g) Facilities, general
“(g) Enclosure or pool environmental enhancements. Any nonfood objects provided for the entertainment or stimulation of marine mammals must be of sufficient size and strength to not be ingestible, readily breakable, or likely to cause injury to marine mammals, and be able to be cleaned, sanitized, and/or replaced effectively.”
In conclusion, this orca is living in an environment that is not in compliance with APHIS regulations. This orca should be moved to a different facility or a sea pen or other environment or Miami Seaquarium should comply with all of the CFR's within the Animal Welfare Act.