New twists in battle over Lolita give activists new hope

CORAL GABLES, Fla. -- There are new developments in the decades-long battle over whether Lolita the killer whale, still at Miami Seaquarium, will be returned to her home waters near Seattle. Activists believe, while still a long shot, these developments present the best chance in 40 years to achieve their goal.

Among the developments, Lolita will likely get protections under the Endangered Species Act; a new company with less reliance on Orca shows will complete its purchase of Seaquarium in mid-May; and celebrities are speaking out about Lolita's plight including Seattle natives Ann and Nancy Wilson of Heart.

The Art Hertz Interview

Miami Seaquarium owner Art Hertz is breaking his silence. In a rare interview, he says he's misunderstood and mischaracterized by critics, "because they have their minds made up, by people who are influencing them with, again, mischaracterizations of what I'm trying to do and what they think I'm trying to do."

Hertz says the angry and hateful things said about him in letters and online posts around the world hurts.

"Yes, it does. Yes, it does," he said somberly in his Coral Gables offices. "Especially the letters that I get from the children that are just filled with untruths, and mischaracterizations of me."

For a civic leader and high profile donor for charities in South Florida, Hertz is not used to such criticism.

"I'm a good man in this community. I do a good job. I give my time and attention to a lot of good things," he said.

What's his message to critics? "I do my very best to take very good care of the animals that are under my care. And I seem to do a good job with that."

Hertz declined to discuss the pending sale to Palace Entertainment, the US subsidiary of global conglomerate Parques Unidos, based in Spain. The company has, so far, not commented on its future plans for Lolita. The company has no Orca in its U.S. entertainment parks nor in any other country except in Spain.

A Moment of Vulnerability

Activists missed a moment of vulnerability May 6 when Miami-Dade Commissioners discussed, and then approved unanimously, the sale without requiring the new owners to improve conditions or return Lolita to Puget Sound.

Miami-Dade County owns the Virginia Key land where Seaquarium sits near Miami. The lease runs through 2031. Activists said they never knew about the commission vote. One activist, Ana Campos, said she found out the night before and was a lone heckler in the audience when Seaquarium President Andrew Hertz, Art's son, told commissioners "She is a very spoiled animal" describing the fileted salmon she's fed every day.

"She's alone!" yelled Campos from behind Hertz. She was admonished but continued confronting Hertz, even as he sped away in his car, calling him "monster!"

Commissioners seemed uninformed on the Lolita controversy, asking about her circumstances only once or twice. Commissioner Barbara Jordan asked: "Do they have a retirement plan for whales?" Other commissioners chuckled.

Hertz answered by saying "none of what we do violates" government regulations for her care.

Could a judge decide where Lolita Lives?

The National Oceanic and Atmospheric Administration is proposing to extend some protections of the Endangered Species Act to Lolita. A public comment period ended March 28 and garnered more than 17,000 responses, according to Lynn Barre, Pacific Northwest branch chief for protected resources for NOAA. A cursory look at the comments suggested the vast majority were in favor of returning Lolita to Puget Sound.

She said it remains unclear how such a designation, expected to be final in January, would impact Lolita. But it is possible, she said, her new owners could be required to make improvements. The designation will force all parties to legally review what scenario creates less risk for Lolita: Keeping her in the present pool, the smallest Orca tank in North America, or a larger pool, or returning her to Puget Sound.

Activists feel momentum

"The wheels of justice and mercy grind very, very slowly," says long-time Lolita activist Howard Garrett with Orca Network. "There is a real prospect now. And she has a lot of big guns on her side now." Standing on the sun drenched shores of Whidbey Island near where Lolita was captured, Garrett said "she has a whole team of lawyers."

Lawyers for EarthJustice, PETA and other activist groups have been working on legal maneuvers to relocate her.

Celebrities are voicing their concerns about Lolita too. Ann and Nancy Wilson of Heart have a message for the new owners of Lolita: "Let her go!"

Both sisters grew up near Seattle and Nancy remembers the Orca round up from the 70's and was horrified. Graham Nash, also a Hall of Fame musician, chastised corporations for putting profits over treatment of captive Orca.

"This Earth is a very fragile place," he said before a concert called "Orca Freedom" at Seattle's Experience Music Project. "As we all know, part of the reason we're all trying to help these endangered species is we're really trying to help ourselves too. I think humankind is, in a way, an endangered species also."

Several musical acts have canceled performances at Sea World and elsewhere because captive Orca are part of the companies' business, a move that surely has Lolita's new owners watching closely.

Is Lolita's mother still swimming free?

The images on Aug. 9, 1970 from Penn Cove at Whidbey Island remain heartbreaking. It was an orchestrated effort to separate and capture young orcas, and sell them to aquariums around the world. It was legal in 1970, but protests ensued. After a second round up several years later, the Washington State legislature - many of whom watched the round up within sight of the Capitol dome in Olympia - banned further Orca captures. Federal laws followed.

In that 1970 roundup was Lolita, whose original name is "Tokitae." She was old enough, experts say, to have established a memory, to have bonded with family, and to have learned the distinct dialect of L-pod.

Members of Lolita's pod are still roaming the Northwest, swimming about 100 miles a day, say Orca researchers. Hydrophones have recorded L-pod's squeaks and clicks, a complex language scientists have yet to de-code.

"And her family is just right out front, maybe a quarter mile," says Ken Balcomb, director of the Whale Research Center near Friday Harbor. "They speak the same language."

Balcomb spoke as he stood under a brilliant blue sky in Kanaka Bay, San Juan Island, with a bald eagle standing proudly above and a gentle breeze cooling the late afternoon air. "This is paradise," he says. This is where he and others want Lolita to live out her remaining years, or perhaps to be re-trained to be wild again and re-join her pod.

"There's four or five members that are out there that are old enough to have known her," explains Balcomb. "And that's what we need is somebody's got to recognize her."

Back in his office, Balcomb shows me photos of one Orca in particular from L-pod. "There she is," he says as a photo pops up onto his computer screen.

It's L-25, also called Ocean Sun, the sole surviving female of the right age, who just might be Lolita's mother, Balcomb says. He explains there were about 12 adult females in L-pod when Lolita was captured. All are dead except Ocean Sun who "may wonder whatever happened to Lolita." He adds, "The clincher would be the DNA." But Miami Seaquarium will not release a blood or tissue sample of Lolita's.


This is a good place in our story to talk about anthropomorphism, an esoteric word that simply means foisting human emotions and human thinking onto animals who may not share those emotions and thought. I asked Balcomb point blank: "Are you anthropomorphizing with Lolita?"

He laughs. It's not the first time he's heard that question.

"Am I anthropomorphizing? Putting my emotions and thinking onto the animal? Uh, everything I've seen about these animals outclasses me - considerably. So, that would be a denigration of her abilities," he said as he laughed again.

Balcomb is a widely-respected whale scientist who was instrumental in determining that powerful Navy sonar can hurt or kill whales and dolphins -- an argument that took the Navy and the George W. Bush White House to the U.S. Supreme Court. And he helped invent the concept of photo identification of whales and dolphins using small differences in their flukes and tails.

He says when he first tried to share the concept with the marine science world decades ago, they scoffed: "There's no difference in these animals!" he mocked. He says that's how much we've learned about whales and dolphins since then. But the laws, he says, have not kept up with an evolving public and scientific awareness.

With Garrett, his half-brother, Balcomb co-wrote the scientific plan to return Lolita home. It's full of science and logistics, and references 50 previous cases of reintroducing captive cetaceans into the wild. He concedes getting Lolita returned to Puget Sound is a long shot.

"It certainly COULD happen," he says. "There's no reason in this world that it couldn't happen. It's just humans that are in the way."

Keiko, better known as "Free Willy" from the Hollywood movie, was taken from his tank in Mexico and re-trained to be wild again. Balcomb was part of the consultative group. Keiko was released near Iceland before experts could identify his original pod, against Balcomb's protests. He believes that hurt Keiko's chances even though the Orca survived for six years. In Lolita's case, her pod is among the most studied killer whales on Earth.

Activists getting angrier as owners entrench

Miami Seaquarium has issued statement after statement: Lolita is staying right where she is. She eats fileted salmon, gets full medical care, swims in cooled water, and enjoys interaction with trainers. She's lived longer in captivity than any other Orca -- many wild Orca die incaptivity in only a few years.

"She's a member of the family," Hertz said. "You know, people say that she's doing tricks and performing. But everything she does is all the things that she would be doing in the wild. Those jumps are the same jumps that they do in the wild. She swims like she swims in the wild. Everything is natural."

Balcomb retorts the natural thing to do is have Lolita live in Kanaka Bay.

The film 'Blackfish' is igniting an even broader anger over captive Orca and it has inspired citizen action. For example, high school kids from Edmonds organized a series of free film screenings of "Blackfish" and "Lolita: Slave to Entertainment."

There are a dozen or so online petitions signed around the world, including one that has more than 50,000 signatures. Alexandrea Welch, a 24-year-old college student, started one of the petitions after bursting into tears at one of the Edmonds film screenings.

"I left the theater crying," she said. "I was so upset because it was such an overwhelming experience. I was, I was just shocked!"

At her computer, she reads some of today's postings on her petition website from the United Kingdom and elsewhere. She says she wants to do more: "I was tired of having these people exploit whales for profit and for entertainment. And I want to put an end to it."

For More Information:

Orca Network: Lolita Rehabilitation Training Plan
Orca Network: Lolita Retirement Proposal
Orca Network: Lolita Transportation Plan