HispanicBusiness

Forty years after hunters lassoed a young killer whale off Whidbey Island, Wash., and sold it to a Florida theme park, whale advocates are turning to an unusual tactic to try to force the orca's release: the Endangered Species Act.

In a move legal experts said could have significant implications for other zoos and aquariums, animal rights activists recently sued the federal government, arguing that the law may require Lolita, the killer whale who still performs at the Miami Seaquarium, be reunited with pod members in the Northwest because Puget Sound's southern resident orcas were listed as endangered in 2005.

They contend that keeping a highly social animal like an orca in a tank on the far side of the country should be viewed as harassment, and the Endangered Species Act (ESA) makes it illegal to "harass, harm, pursue, shoot, wound, kill, trap, capture, or collect" an animal under its protection.

The suit is part of an emerging trend as experts and lawyers debate the conditions under which animals in captivity should be subject to the ESA.

In October, after a 10-year legal battle, activists lost an appeal of a high-profile federal court case against Ringling Bros. circus over whether its treatment of elephants - prodding them with bullhooks and shackling them between shows - violated the law. The court never ruled on the central question, deciding instead that the plaintiff, a former circus employee, didn't have proper legal standing to bring the suit.

Meanwhile, this fall, the U.S. Fish and Wildlife Service is formally considering reclassifying chimpanzees held in captivity in the United States as endangered, which could severely limit their use in medical research.

"It's an interesting idea and poses some very interesting questions," said Dan Rohlf, a professor of environmental law at Lewis & Clark in Portland. "The question in this case may end up being whether or not anything the aquarium is doing could constitute harassment or harm of that whale. It would be important to look at what sort of minimum federal standards would apply to those sorts of aquariums, and whether or not this aquarium meets those standards."

The Miami Seaquarium declined to answer questions about the lawsuit, filed in U.S. District Court in Seattle, but maintained in a statement that Lolita is active, healthy and well-cared for, and that her tank and other conditions far exceed the minimum requirements of federal law.

Whale activists, including Karen Munro, of Olympia, a plaintiff in the suit who said an orca capture she witnessed while sailing in Puget Sound in 1976 changed her life, have long been skeptical of that claim because the marine park won't share Lolita's medical records.

"I think people are starting to realize some animals don't belong in captivity," Munro said.

The lawsuit over Lolita is just the latest front in a battle that dates to her capture in 1970.

On a hot August week that year, entrepreneurs herded more than 60 southern resident killer whales from Puget Sound's J, K and L pods into a three-acre net pen in Penn Cove off Whidbey Island. Their squeals and fluke slaps could be heard across the inlet as seven were towed to a dock and hoisted onto flatbed trucks for sale to exhibition outfits.

A 1-ton, 6-year-old female from L pod, later nicknamed Lolita, eventually wound up in Florida.