APHIS Lolita

8/6/2019 APHIS Lolita

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of

USDA-

----- ------------- -------------------------------------Dear ----- ----------

JAN 1 - 2011

Thank you for your e-mail ofDecember 24,2010, concerning the welfare of the orcaLolita and other animals kept at the Miami Seaquarium.Our Agency of the U.S. Department ofAgriculture enforces the Animal Welfare Act(AW A), a law that helps protect certain warmblooded animals, including marinemammals such as Lolita, by establishing minimum care and handling standards fortheir maintenance. Under the A W A, we require individuals who breed certain animalsfor commercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspectionsto ensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools asrequired by the A WA.During our most recent inspection ofthe Miami Seaquarium on August 4,2010, ourofficials noted no AWA noncompliances. We found all of the marine mammals at thefacility to be healthy and receiving excellent veterinary care. Miami Seaquarium hasa full-time attending veterinarian who has outstanding credentials in marine mammalveterinary medicine, and all of the marine mammal handlers are well trained.Facilities housing p!arine mammals must also have contingency plans in place forhurricanes and other emergencies. Such plans must show that both water and backuppower are available in emergency situations and, because evacuations can be verystressful to orcas and other marine mammals, a "weather in place" strategy also must "be included. Our inspectors reviewed Miami Seaquarium's contingency plans to makesure Lolita and other marine mammals were adequately protected from any potentialcontamination in the area related to last summer's oil spill in the GulfofMexico.Our inspectors found that the facility'S plans were in compliance with our contingencyplanning requirements. While some reports indicated that representatives ofMiamiSeaquarium had at one point discussed the possibility of seeking financial assistancefrom BP in order to upgrade the facility's filtration system, we understand that suchdiscussions were discontinued after the oil spill was contained far from the Miamiarea and the threat of contamination abated.

APHIS Safeguarding American AgricultureAPHIS is an agency of USDA's Marketing and Regulatory Programs.. n Equal Opportunity Provider and EmployerFOIA 11-393 PT-1. Pg #000001


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With regard to the size of Lolita's pool, while many people have expressed concernabout its size, our measurements indicate that it meets the A W A space requirementsfor marine mammals. The figures specifying the minimum space requirements are takenfrom section 3.104 of the A W A regUlations. The volume requirement for Lolita's pool is25,943 ft?; the actual volume is 49,308 ft? The surface area requirement is 1,808.64 ft2;the actual size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. As westated previously, Lolita's tank: meets the A W A minimum requirements.While we recognize that many people believe Lolita should be transferred back toher native habitat, our Agency cannot mandate that Lolita be released from MiamiSeaquarium. Our authority to confiscate animals is limited to those situations in whichan animal is suffering and action is not taken to alleviate the condition, or environmentsthat directly cause an animal to be in imminent danger of suffering or death. This has notbeen the case with Lolita or with the location ofher tank:.We appreciate your concern for the welfare ofLolita and other marine mammalsexhibited at Miami Seaquarium. You can find more information about the A W Aand our Agency's enforcement activities on our Web site at www.aphis.usda.gov/.Please select "Animal Welfare" on the left side of the page.Sincerely,u/;rcy

I

{ ~ C h e s t e r A. Gipson. Deputy AdministratorAnimal Care

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--------- -------From: ------------- ---------- ----- -------------------------sent: Friday, December 24, 2010 6:4S".PM i TO: [email protected]; a c e a s t @ a p h l s . u s d ~ . g o v ; a p h l ~ . w e b @ a p h l s . u s d a . g o v , [email protected]; c h r i s t o p h e r . ~ e e d h a m @ a p h l s . u s d a . g o v ; [email protected]; e d . a v a l o s ~ u s ~ a . g o y ; [email protected]; AGSEC -USDA; J a m ~ s . c . l v y @ a p h l s . u s d a . g o v subject: Orca Lolita Iunited States Department of A9riculture ( U S D ~ ) Animal and plant HealthInspection Servi ce (APHIS) Anl ma1 Care (AC) ITO whom this may concern: IIAS you may be aware, of Miami seaquarium, M i ~ m i , FL has recently stat to $5 million dollar clalmagainst BP citing his requirement to upgrade the m a r i n ~ park's f ; l t ~ a t i o n system should the waters of Biscayne Bay become contamlnated from.ollresulting from the Deep water Horizon incident in the Gulf of MeX1CO .(www.justnews.com/news/23910898/detail.html). By this actio,:" the Hertz fal!l1lyhas admittedly demonstrated that they are not prepared, equlpped or otherwlsecapable of carrying out a disaster contingency plan to provide emergencysources of water and/or arrangements for relocating marine mammals asrequired by APHIS Regulation 9 CFR section 3.101(b). The National ocean1c an9Atmospheric Administration (NOAA) predicts an 80% chance that the oil wlll hltthe Miami area in August and I am deeply concerned the Miami seaquariumwildlife is in jeopardy. In addition to Killer whale Lolita the lives of 30dol phins, !15 seals and sea lions, dozens of reptiles/fish, sea turtles, and at leas t .eight manatees are in peril. Your immediate action is required to ensure thelrsafety.should the Hertz family be successful in securing funds for this majorreconstruction effort, i t is my contention that Miami seaquarium be requiredby USDA-APHIS to brin9 ALL provisions of animal welfare, including marinemammal housing size, lnto compliance with current APHIS Regulations under theAnimal welfare Act.since the brutal capture of killer whale (orca) Lolita in 1970, she has beenkept in a tank that is illegal by current APHIS standards for spacerequirements as provided in Regulation 9 CFR section 3.104. Now 42 years old,Lolita (also known as Tokitae) is approximately 21 feet long and 7,000 pounds.Her tank is 20 feet deep at the deepest point, a mere 12 feet deep around theedges am;' 35 feet wide. Lolita's l ife of misery in these substandard confineshas contlnued long enough. The Hertz family has been profiting from Lolita'se x p l o i t a ~ i o n for more than 40 years and the time has come to end her sufferingand provlde her the protection and quality of l ife she deserves. They shouldnot be allowed to continue operatin9 with no emergency contingency plans,under o ~ t d a t e d ~ e g u l a t i o n s , and maklng piecemeal lmprovements aimed solely atprotectlng proflts. Now is the time to act on Lolita's behalf. Time is runningout!AS a part of Animal and plant Health Inspection service at The US Departmentof Agriculture, I know that you are concerned with the future of marinemammals in captivity and the urgent crisis developing at the Miami seaquarium.please do your part and ensure lmmediate action is taken and provisions areprovided that require Miami seaquarium's compliance with all current APHISRegulations under the Animal welfare Act for this emergency and any future .c9nstruction and/or uP9rades at their marine mammal park. I f the Hertz familyflnds that complying wlth all current APHIS Regulations is not cost feasible,a l t ~ r n a t i v e viable solutions are under development to provide a saferetlrement for Lolita in her native habitat in the pacific Northwest. Detailsof this proposal can be found here:www.orcanetwork.org/capt;v;ty/2007proposaldraft.html. There are many wonderfulPage 1

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tmp5F[1].txtpeople and organizations willing to work with the Miami seaquarium and areready, willing and waiting to move forwa!rd with a rehabilitation/ retirement plan for Lolita.Thank you for your prompt attention to this matter.------------------------- ---------- ------ -----------Neu: GMX De-Mail - Einfach wie E-Mail, sicher wie ein Brief!Jetzt De-Mail-Adresse reservieren: http://portal.gmx.net/de/go/demail

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Statesof

USDA

----- --------- --------------------------------------Dear ----- ------------

FEB 25 2011

Thank you for your e-mail ofFebruary 16,2011, to the U.S. Department ofAgriculture(USDA) concerning the welfare ofLolita, an orca exhibited by Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency ofUSDA enforces the AnimalWelfare Act (AWA), a law that helps protect certain animals, including marine mammalssuch as Lolita, by establishing minimum care and handling standards for theirmaintenance. Under the A WA, we require individuals who breed certain animals forcommercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspections toensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools as requiredbytheAWA.During our most recent inspection of the Miami Seaquarium, our officials noted nononcompliances. We found all of the marine mammals at the facility, including Lolita, tobe healthy and receiving excellent veterinary care. Miami Seaquarium has a full-timeattending veterinarian who has outstanding credentials in marine mammal veteri1}arymedicine, and all of the marine mammal handlers are well trained. Miami Seaquarium alsomeets A W A regulations requiring that social marine mammals, such as orcas, be housedwith at least one compatible animal of the same or biologically related species. Lolita hasshared her tank for many years with Pacific white-sided dolphins that are, like Lolita,cetacean mammals.With regard to the size ofLolita's pool, w h i l ~ many people have expressed concernabout its size, our measurements indicate that it meets the A W A space requirements formarine mammals. The figuresspecifying the minimum space requirements are takenfrom section 3.104 of the A W A regulations. The volume requirement for Lolita's pool is25,943 fe;the actual volume is 49,308 ft'. The surface area requirement is 1,808.64 fY;the actual size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. As westated previously, Lolita's tank meets the AWA minimum requirements.



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The A W A regulations also require facilities housing marine mammals to have contingencyplans in place for natural disasters and other emergencies. Such plans must show that bothwater and, backup power are available in emergency situations and, because evacuationscan be very stressful to orcas and other marine mammals, a "weather in place" strategyalso must be included. Our inspectors have reviewed Miami Seaquarium's contingencyplans to make sure Lolita and other marine mammals were adequately protected from anypotential contamination. Our inspectors noted no problems with the facility's plans.Again, we appreciate your interest in Lolita 's welfare and assure you that we willcontinue to monitor Miami Seaquarium and all other regulated facilities to ensure A W Acompliance. For more information about the A W A and our Agency's enforcementactivities, we encourage you to visit our Web site at http://www.aphis.usda.gov/andselect "Animal Welfare" on the left side of the page.Sincerely,

Chester A. GipsonDeputy AdministratorAnimal Care

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---------- ].txtFrom: -------- ---------- -----------------------------Sent: -------------- ----------- ---- ------ ------- ----TO: AGSEC -USDACc: a p h i s . w e b @ a p h i s . u s d a . ~ o v subject: Lolita, the Mlami seaquriums Imprisoned Killer whaleDear Sec. Vilsack:I am writing to request your urgent action to uphold the intent of the Animalwelfare Act (AWA) r e g a r d i n ~ the tank enclosure for Lollta, the killer whale at the Miami Seaquarium.Lolita's stadium lies directly in the path of hurricanes growing ever more intensivedue to global warming.Lolita and all the marine mammals at the park should be relocated to a saferlocation. For Lolita this meansshe should be transported back to her native habitat and her actual genetic familyfor retirement underhuman care with the option to rejoin her family of birth.But fi rst , please be clear that the Seaquarium WILL NOT build a new tank for Lolita.Since at least 1978 theUSDA has reassured critics with the promise that a new tank would soon be built onthe seaquariumgrounds for Lolita. Lolita is nearing the end of her show business career one way oranother, and i t isimpossible to capture orcas worldwide or to purchase one on the open market. Despite29 captive birthssince 1993, the number of orcas in captivity has dropped from over 50 ten years agoto around 43 in 2008.Mr. Hertz will not invest in a big new tank with the likelihood that there will beno orca alive in Miami oravailable on the market to perform in i t .The existing tank is , by the intent of the AWA, illegal. The minimum horizontaldimension in this enclosure,from pool's edge to the work station is only 35 feet. The Animal and plant HealthInspection service (APHIS)regulations for the humane handling, care, treatment, and transportation of marinemammals (9 C.F.R.section 3.104 - space Requirements) state that the primary enclosure fo r a killerwhale (orcinus orca) musthave a minimum horizontal dimension (MHO) of no less than 48 feet. Measuring overand ignoring theslideout station to the back of the medical pool gives an MHO of 60 feet, but onlyby illegally ignoring thatthe station presents a concrete wall that obstructs Lolita's ability to travel tothe medical pool in thatdimension.The intention of the space requirement regulations found at Section 3.104 -- the MHOwas to describe theminimum distance required for a straight line of travel across the narrowest pointof a primary enclosure,not to describe the circumference of said enclosure.TWO, whenever an animal is confined in the seaquarium's medical pool underveterinary supervision, thisarea behind the work station is temporarily no longer part of the primary enclosure,and the MHD of herprimary enclosure unequivocally becomes 35 feet. This is in violation of Section3.104 of the APHISregulations. page 1

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tmp131[1].txtLolita has been without adequate space for decades. APHIS has been aware of thison-going violation, ye thas consistently failed to enforce i ts own regulations and the Animal Welfare Act.Therefore, I strongly urgeAPHIS to address this situation immediately. In the interim and until the situationhas been corrected, I willexplore legal options, including th e filing of an action pursuant to 28U.S.C.Section 1361.Thank you fo r your prompt consideration of our concerns regarding this matter.sincerely,-------- -----------

page 2

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of

Health

MD

USDAiiiIII

----- --------- ------------- ---------- ---------------- --------- ----------- --------Dear ----- ----------

FEB 25 2011

" . .... .V""Thank you for your letter to the U.S. Department ofAgriculture (USDA) concerning thewelfare ofLolita, an orca exhibited by Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency ofUSDA enforces the AnimalWelfare Act (AWA), a law that helps protect certain animals, including marine mammalssuch as Lolita, by establishing minimum care and handling standards for their:naintenance. Under the AWA, we require ic.Cividuals who breed certain animals forcommercial sale, use them in research, exhibit them to the public, or transport them. commercially to be licensed or registered with us. Our officials conduct inspections toensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools as requiredby the AWA.During our most recent inspection of the Miami Seaquarium on August 4, 2010, ourofficials noted no noncompliances. We found all of the marine mammals at the facility,including Lolita, to be healthy and receiving excellent veterinary care. Miami Seaquariumhas a full-time attending veterinarian who has outstanding credentials in marine mammalveterinary medicine, and all of the marine mammal handlers are well trained. MiamiSeaquarium also meets A W A regulations requiring that social marine mammals, such asorcas, be housed with at least one compatible animal of the same or biologically relatedspecies. Lolita has shared her tank: for many years with Pacific white-sided dolphins thatare, like Lolita, cetacean mammals.With regard to the size of Lolita's pool, while many people have expressed concernabout its size, our measurements indicate that it meets the A W A space requirements formarine mammals. The figures specifying the minimum space requirements are takenfrom section 3.104 of the A W A regulations. The volume requirement for Lolita's pool is25,943 if; the actual volume is 49,308 ft3. The surface area requirement is 1,808.64 if;the actual size is 7,326 if. The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHO) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. As westated previously, Lolita' s tank: meets the AWA minimum requirements.

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Again, we appreciate your interest in Lolita's welfare and assure you that we willcontinue to monitor Miami Seaquarium and all other regulated facilities to ensure A W Acompliance. For more information about the A WA and our Agency's enforcementactivities, we encourage you to visit our Web site at http://www.aphis.usda.gov/ andselect "Animal Welfare" on the left side of the page.Sincerely,

, / /1 / i'i(c, (' C 1 - - ; t : ~ L ~ - : J -'''' Chester A. GipsonDeputy AdministratorAnimal Care

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* --------- ------------- -----Dear Secretary Vilsack.

---------------- ------------------ ----------- ------------ ----------- ---------------------------------------------------------

I am writing regarding LOlita, the killer whale at the Miami Seaquarium. The treatment Lolita is receiving has- . - - - - b e e n . d e e m e d j n h u m a n e _ b y , t h ! U . e g u l a ~ set by_y'our owlLoffil:::e, yet you allow the Seaquarium to continueoperations in non-compliance. .

Lolita's stadium fails to meet.even the most basic requirements set by your office The existing tank is illegal asouUined by the AWA. The minimum horizontal dimension in this enclosure, from pool's edge to the work station,is only 35 feet. The Animal and Plant Health Inspection Service (APHIS) regulations for the humane handling,care, treatment. and transportation of marine mammals (9 C.F.R. Section 3.104 - Space Requirements) state thatthe primary enclosure for a killer whale (Orcinus orca) must have a minimum horizontal dimension (MHO) of noless than 48 feet. The space requirement regulation describes the minimum distance required for a straight I .ne of travel across the narrowest pOint of a primary enclosure, not to describe the circumference of saidenclosure. Enforcing these regulations is your job, Mr. Vilsack. so one has to wonder why you repeatedly overlook the Seaquarium's non..compliance.The people's campaign to secure Lolita's welfare has been going on for a long time. I'm sure this is not the firstletter you have received about this issue,nor will it be the last. lolita deserves justice Mr. Vilsack, and the American people need to see that you are representing our interests in washington.The Seaquarium has explicitly stated, on more than one occasion, that they simply do not have the .funds to construct-a larger tank for Lolita, despite the fact that she brought over 170 million dollars of revenue to the Seaquarium. Mr. Hertz has been enjoying the profits generated by Lolita's presence at the Seaquarium, yet he is notwilling to put even a fraction of those profits toward making his facility legal according to the standards set byyour department . Mr. Vilsack, standards and requirements are not optional. Mr. Hertz should not have the option of gnoring your regulations and continuing to run his organization out of compliance.The actions of Mr. Hertz demonstrate why marine mammal captivity programs should not be managed by privatecorporations. The Miami Seaquarium and Sea World Parks and Entertainment have shown they are not in thebusiness of providing good environments for marine mammals to inhabit, they are in the business of maximizingprofit for their shareholders, even if t means ignnring the law - which you are allowing to happenl Your departmenrs regulations are designed to force an entity - that really has little interest in providing animal welfare - toprovide the bare minimum needed for the animals' survival while they are exploited for profit, and it is your departmenfs responsibility to enforce those regulations.Lolita has been without adequate space for d ~ d e s . For decades, the Seaquarium has claimed it does not havethe funds to bring its facilities up to code, and.for decades you have allowed them to be non-compliant without ..penalty. I strongly urge APHIS to address this situation immediately. Until the situation has been corrected, I WIllexplore legal options. including the filing of an action pursuant to 28 U.S.C. Section' 1361.

--------- ----- ---- ------ ---------- ------------------ -----------ncerns regarding this matter.

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of

USDA-

----- --------- ------------- -------- ----- ------ ----------------------- ------------ --------Dear ----- ---------

MAR - 3 2011

Thank you for your follow-up letter of January 29, 2011, to the U.S. Department ofAgriculture (USDA) concerning the welfare ofLolita.We appreciate your continued interest in Lolita's well being and we would like infonn youthat your complaint related to Lolita's pool size at the Miami Seaquarium has beenforwarded to our Animal Care (AC) program's Eastern Region office. Our Agency'sFreedom of Infonnation and Privacy Act (FOIAIP A) office also is processing your FOIArequest. The case number is FOIA 11-279.However, as we mentioned in our prior letter, according to our measurements, Lolita'spool size fully meets-and, in fact, exceeds-the space requirements for marine mammalsdetailed in section 3.104 of the Animal Welfare Act. We first made this detennination in1988, after having the pool measurements verified by an independent outside engineer.Since then, Lolita's pool size has remained the same. As a result, our detennination hasremained unchanged and we do not believe that are-measurement of the size ofLolita'spool is necessary.If you would like to discuss your complaint further, you may contact Dr. Goldentyer,the Director of our AC's Eastern Region. Dr. Goldentyer's telephone number is(919) 855-7100; her e-mail address is [email protected]. If you haveany questions regarding your FOIA request, we encourage you to contact Mr. RobbiePerry, the FOIAIP A specialist assigned to the case. Mr. Perry may be reached bytelephone at (301) 734-8696 or bye-mail at [email protected],

/

J hester A. GipsonDeputy AdministratorAnimal Care

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January 29, 2011--------- -------------- ----- ------ ----------------------- ---- ---------------------------------------------------------USDA/APHIS4700 River Rd, Unit 84Riverdale, MD 20737-1234Via 151 class mail and email: [email protected]: Report of non-compliance of section 3.104(1 )(i), Space RequirementsMiami SeaquariumCustomer JD: 3253Certificate: 58-C-0147To Whom It May Concern:Let this letter stand as a formal complaint and report ofnon-compliance of the Animal WelfareAct 9 C.F.R. Part 3 Standards, Subpart E Specifications for the Humane Handling, Care,Treatment and Transportation, of Marine Mammals, Section 3.1 04( 1 (i) at the MiamiSeaquarium, 4400 Rickenbacker Causeway, Key Biscayne, FL 33149.On March 10, 2010, a letter was sent to me from Chester Gibson, Deputy Administrator ofAnimal Care APHIS. (See attached) This letter was a direct response to the concerns I broughtforth to APHIS regarding size of the killer whale tank at the Miami Seaquarium which housesLolita. I was concerned that the minimum horizontal dimension ofLolita's tank did not meet theminimum requirements of Section 3.104(1)(i) of he Animal Welfare Act (AWA).The letter from Mr. Gibson reads:While many people have expressed concern about the size ofLolita's pool, ourmeasurements indicate that it meets the AWA space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104 ofthe AWA regulations.And

Finally, the minimum horizontal dimension (A1HD) requirement is 48feet; the actualMHD measurement is 80 feet in one direction and 60 feet in the other. Wedid not include the medical pool area in our MHD measurements of hemain pool. Therefore, use of he medical pool area does not diminish thesize of he main pool.

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of

Health

USDA-

----- --------- --------------- ----- ----- --------------------- --------------- --------Dear ----- ---------

MAR - 3 2011

Thank you for writing to the U.S. Department ofAgriculture (USDA) concerning thewelfare ofLolita, an orca exhibited by Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency ofUSDA enforces the AnimalWelfare Act (A WA), a law that helps protect certain animals, including marine mammalssuch as Lolita, by establishing minimum care and handling standards for theirmaintenance. Under the A W A, we require individuals who breed certain animals forcommercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspections toensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, Ci!ld room to move about normally in their cages, pens, or pools as requiredbytheAWA.During our most recent inspection of the Miami Seaquarium, our officials noted nononcompliances. We found all of the marine mammals at the facility, including Lolita, tobe healthy and receiving excellent veterinary care. Miami Seaquarium has a full-timeattending veterinarian who has outstanding credentials in marine mammal veterinarymedicine, and all of the marine mammal handlers are well trained. Miami Seaquarium alsomeets A W A regulations requiring that social marine mammals, such as orcas, be housedwith at least one compatible animal of the same or biologically related species. Lolita hasshared her tank for many years with Pacific white-sided dolphins that are, like Lolita,cetacean mammals.With regard to the size ofLolita's pool, while many people have expressed concernabout its size, our measurements indicate that it meets the A W A space requirements formarine mammals. The figures specifying the minimum space requirements are takenfrom section 3.104 of the A W A regulations. The volume requirement for Lolita's pool is25,943 fe; the actual volume is 49,308 ft3. The surface area requirement is 1,808.64 ft2;the actual size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement IS 80 feet in one direction and 60 feet in the other. As westated previously, Lolita's tank meets the AWA minimum requirements.



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The A W A regulations also require facilities housing marine mammals to have contingencyplans in place for natural disasters and other emergencies. Such plans must show that bothwater and backup power are available in emergency situations and, because evacuationscan be very stressful to orcas and other marine mammals, a "weather in place" strategyalso must be included. Our inspectors have reviewed Miami Seaquarium's contingencyplans to make sure Lolita and other marine mammals were adequately protected from anypotential contamination. Our inspectors noted no problems with the facility's plans.Again, we appreciate your interest in Lolita's welfare and assure you that we willcontinue to monitor Miami Seaquarium and all other regulated facilities to ensure A W Acompliance. For more infonnation about the A WA and our Agency's enforcementactivities, we encourage you to visit our Web site at http://www.aphis.usda.gov/ andselect "Animal W ~ l f a r e " on the left side of the page.Sincerely,

for'. Chester A. GipsonDeputy AdministratorAnimal Care

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, Secretary'Tom Vilsack', ' / , ' :" . It . '" /,.; .... , JU.s. Department of Agriculture , '. ...cc: Kevin; S'heaJ ,;' f ' ; '. '; : . ' ::'-" t . . . ,Acting Admiriistrator, , : , . , ' I ! : ' ! , , ' , " , , '. . 'I '. . :; i: . r' : f, . ':: ..Animal aitd.Plaitt Health Inspection S e r v i c e ~ ; ~ , . " ,U.S. Department of Agriculture. : .; i . .. , ' : .. '.. . ..... \ , _. ; .. "! t !'..: '" I .

Dear Sec. Vi/sack and Mr. Sheru ';'" "I ask that you please intervene in the inhumane conditions and iJlega) enclosure sed at the,' ' ,":' . ~ , Miami Seaquarium for the Orca Whale known as Lolita. PI uphold the Anim Welfare Act.,Asa citizen activist I-promise-you-thatthe-public8warenes:;-and tide of opinion-i rising,regarding the intelligence and cultural values of wild orcas,I support the following, including proposed legal actions:

: '. ,, : ;. :. .' t .: .' . .Lolita's stadium lies directly in the path of hurricanes growing ever more inteiisiv due to!global; ;wanning.Lolita and all the marine mammals at the park shl)uld be relocated to a afer location.For Lolita this means she should be transported back to her native habitat and her actual geneticfamily for retirement under human care ,with the option to r . ~ j o i n her family of biBut first, please be clear that the Seaquarium WILLNor build a new tank for Lo ita. Since atleast 1978 the USDA bas reassured critics with the promise that a new tank woul soon be builton the Seaquarium grounds for Lolita. Lolita is nearing the md of her show busin ss career oneway or another, and it is impossible to capture orcas world\'l'ide or to purchase on on the openmarket. Despite 29 captive births since 1993, the number of orcas in captivity has dropped fromover 50 ten years ago to around 43 in 2008. Mr. Hertz will not invest in a big new tank with thelikelihood that there will be no orca alive in Miami or available on the market to norm in it.The existing tank is, by the intent of the AWA, illegal. The rrtinimum horizontal di ension in this

- -, enclosure. from-pool's.edguo.the work station is only: 35_ f e ~ t . Tbe AnhIUll.and PI. ,nt H e a J ~ h Inspection Service (APHIS) regulations for the humane haniling, care, treatment, ndtransportation of marine mammals (9 C.ER. Section 3.104 Space Requirements) state that theprimary enclosure for a killer whale (Orcinus orca) must have a minimum horizo tal dimension

'(MHO) of no less than 48 feet. Measuring over and ignorin!: the stideout station t the back ofthe medical pool gives an MHD of 60 feet, but only by ilJeg illy ignoring that the tion presentsa concrete wall that obstructs Lolita's ability to, travel to the medical pool in that d ension.The intention of the space requirement regulations found at Section 3.104 -- thedescribe the minimum distance required for a straight line o,/travel across the n west point ofa primary enclosure, not to describe the circumference of sa d enclosure.Two, whenever an animal is confined in the Seaquarium's m;:dical pool under vete "narysupervision, this area behind the work station is temporarily no longer part of the rimary

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renclosure, and the MHD of her primary enclosure unequivocally becomes 3S:feet. Tbis,is'inviolation of Section 3.104 oftheAPHIS regulations. ' i , ' j . , : ~ ' ~ Lolita has been without adequate space for decades. APHIS has been aware of this on-,going ,violation. yet has consistently failed to enforce its own regulations and the Animal.Welfare Act.Therefore. I strongly urge APHIS to address this situation immediately. :Inttie ,interim' and,uiltiJ,,;, .the situation has been corrected, I will explore legal options, including the'filing of'aniactipJi' ',.pursuant to 28 U.S.c. Section 1361.Thank you for your prompt consideration of our concerns regarding this matter., ,,', .' . - ' ,',.

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FOIA 11-393 PT-1. Pg #000017


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of

andHealth

River RoadMD

USDA..

----- --------- ---------------- -------- ----- -------------------- -------------- ---------Dear M s ~ -----------

.MAR 1 S .2011

Thank you for writing to the U.S. Department ofAgriculture (USDA) concerning thewelfare ofLolita, an orca exhibited by Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency ofUSDA enforces theAnimal Welfare Act (AWA), a law that helps protect certain animals, including marinemammals such as Lolita, by establishing minimum care and handling standards for theirmaintenance. Under the A W A, we require individuals who breed certain animals forcommercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspectionsto ensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools asrequired by the A WA.During our most recent inspection of the Miami Seaquarium, our officials noted nononcorripliances. We found all ofthe marine mammals at the facility, including Lolita,to be healthy and receiving excellent veterinary care. Miami Seaquarium has a full-timeattending veterinarian who has outstanding credentials in marine mammal veterinarymedicine, and all of the marine mammal handlers are well trained. Miami Seaquarium alsomeets A WA regulations requiring that social marine mammals, such as orcas, be housedwith at least one compatible animal of the same or biologically related species. Lolita hasshared her tank for many years with Pacific white-sided dolphins that are, like Lolita,cetacean mammals.With regard to the size ofLolita' s pool, while many people have expressed concernabout its size, our measurements indicate that i t meets the A W A space requirements formarine mammals. The figures specifying the minimum space requirements are takenfrom section 3.104 of the AWA regulations. The volume requirement for Lolita 's pool is25,943 fe; the actual volume is 49,308 ft3. The surface area requirement is 1,808.64 ttl;the actual size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. As westated previously, Lol ita's tank meets the AWA minimum requirements.



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----- --------- ----------Page 2

The A W A regulations also r e q u i r ~ facilities housing marine mammals to have contingencyplans in place for natural disasters land other emergencies. Such plans must show that bothwater and backup power are availJble in emergency situations and, because evacuationscan be very stressful to orcas and other marine mammals, a "weather in place" strategyalso must be ,included. Our inspectors have reviewed Miami Seaquarium's contingencyplans to make sure Lolita and other marine mammals were adequately protected from anypotential contamination. Our inspectors noted no problems with the facility's plans.Again, we appreciate your interest in Lolita's welfare and assure you that we willcontinue to monitor Miami Seaquarium and all other regulated facilities to ensure AWAcompliance. For more infonnation about the A WA and our Agency's enforcementactivities, we encourage you to visit our Web site at http://www.apms.usda.gov/ andselect "Animal Welfare" on the left side of the page.Sincerely,

,~ 4 ~ d I z -{ ~ I Chester A. GipsonDeputy AdministratorAnimal Care

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.

Secretary Tom VilsackRm 200-AWhitten BldgU.S. Department of Agriculture14th & Independence Ave., SWWashington,DC 20250202-720-3631Email: [email protected] Telephone: 202-720-2791USDA Fax number: 202-720-2166cc: Kevin SheaActing AdministratorAnimal and p-Ial)t Health Inspection ServiceU.S. Department of Agriculture4700 River Road, Unit 97Riverdale, MD 20737-1234Email: [email protected] Sec. Vilsack:I am writing to request your urgent action' to uphOld the intehtof the Animal Welfare Act (AWM . : 'regarding the tank e n c l o ~ u r e for Lolita, the killer whale at the Miami Seaquarium.

'. ' : ' ;"" I>" ',. .. -: ... f 5::" ":It.JLolita's'stadium lies directly'in the path 'of hurdcanes:growing'c:ver .rr;ore intensive due1to, global . ," ,.,. . : v a r m i n ~ , Lolita 'arid la'lI the'mariiie mammals:


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.'enclosure, not to describe the circumference of said enclosure.Two, whenever an animal is confined in the Seaquarium's medical pool under veterinary supervision,this area behind the work station is temporarily no longer part of the primary enclosure, and the MHD ofher primary enclosure unequivocally becomes 35 feet. This is in violation of Section 3.104 of the APHISregulations.lolita has been without adequate space for decades. APHIS h a ~ , been aware of this on-going violation,yet has consistently failed to enforce its own regulations and the Animal Welfare Act. Therefore, Istrongly urge APHIS to address this situation immediately. In the interim and until the situation has beencorrected, J will explore legal options, including the filing of an action pursuant to 28 U.S.C. Section 1361.Thank you for your prompt consideration of our concerns regarding this matter.--------------e d c r - S ~ ----- --------- ---------------- ------ --------------------- ---- ---------

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of

USDA-

APR (} 8 2011------ ----------

DC -------------- ------------------Dear ------ -----------Thank you for writing to the U.S. Department of Agriculture (USDA) concerning thewelfare of Lolita, an orca exhibited by Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency ofUSDA enforces theAnimal Welfare Act (A WA), a law that helps protect certain animals, including marinemammals such as Lolita, by establishing minimum care and handling standards for theirmaintenance. Under the A W A, we require individuals who breed certain animals forcommercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspectionsto ensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools asrequired by the A W A.During our most recent inspection of the Miami Seaquarium, our officials noted nononcompliances. We found all of the marine mammals at the facility, including Lolita,to be healthy and receiving excellent veterinary care. Miami Seaquarium has a full-timeattending veterinarian who has outstanding credentials in marine mammal veterinarymedicine, and all of the marine mammal handlers are well trained. Miami Seaquariumalso meets A WA regulations requiring that social marine mammals, such as orcas, behoused 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.With regard to the size of Lolita's pool, while many people have expressed concernabout its size, our measurements indicate that it meets the A W A space requirements formarine mammals. The figures specifying the minimum space requirements are takenfrom section 3.104 of the A W A regulations. The volume requirement for Lolita's pool is25,943 ft?; the actual volume is 49,308 fe. The surface area requirement is 1,808.64 ft2;the actual size is 7,326 ft? The depth requirement is 12 feet; the actual depth ranges from12 to 20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. As westated previously, Lolita's tank meets the AWA minimum requirements.



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Page 2

Again, we appreciate your interest in Lolita's welfare and assure you that we willcontinue to monitor Miami Seaquarium and all other regulated facilities to ensure A W Acompliance. For more information about the A WA and our Agency's enforcementactivities, we encourage you to visit our Web site at http://www.aphis.usda.gov/ andselect "Animal Welfare" on the left side of the page.

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mp53[1].txtFrom:sent:To:cc:------------------------------------------ ------- ---- ------ ------ --MAGSEC [email protected]

Dear Sec. Vilsack,I am writing to request Your urgent action to uphold the intent of the Animalwelfare Act(AWA) regarding thetank enclosure for Lolita, the killer whale at the Miami seaquarium.Lolita 's stadium lies directly in the path of hurricanes growing ever more intensive. due to globalwarming. Lolitaand all the marine mammals at the park should be relocated to a safer location. ForLolita thismeans she shouldbe transported back to her native habitat and her actual genetic family forretirement underhuman care with theoption to rejoin her family of birth.But f i rst , please be clear that the seaquarium WILL NOT build a new tank for Lolita.Since atleast 1978 the USDAhas reassured critics with the promise that a new tank would soon be built on theseaquariumgrounds forLolita. Lolita is nearing the end of her show business career one way or another,and i t isimpossible to captureo ~ c a s worldwide or to purchase one on the open market. Despite 29 captive birthsSlnce 1993,the number oforcas in captivity has dropped from over 50 ten years ago to around 43 in 2008. Mr.Hertz willnot invest in a bignew tank with the likelihood that there will be no orca alive in Miami or availableon the marketto perform in i t .The existing tank is , by the intent of the AWA, i l legal. The minimum horizontaldimension inthis enclosure, frompool's edge to the work station is only 35 feet. The Animal and plant HealthInspection Service(APHIS)regulations for the humane handling, care, treatment, and transportation of marinemammals(9 C.F.R. section3.104 - Space Requirements) state that the primary enclosure for a killer whale(orcinus orca)must have aminimum horizontal dimension (MHD) of no less than 48 feet. Measuring over andignoringthe slideout stationto the back of the medical pool gives an MHD of 60 feet, but only by illegallyignoring that thestation presents aconcrete wall that obstructs Lolita 's ability to travel to the medical pool in thatdimension.The intention of the space requirement regulations found at section 3.104 -- the MHDwas todescribe theminimum distance required for a straight line of travel across the narrowest pointof a primary page 1

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tmp53[l].txtenclosure, not todescribe the circumference of said enclosure.Two, whenever an animal is confined in the seaquarium's medical pool underveterinarysupervision, this areabehind th e work station is temporarily no longer part of the primary enclosure, andthe MHO ofher primaryenclosure unequivocally becomes 35 feet. This is in violation of section 3.104 ofthe APHISregulations.L o l i t ~ has been without adequate space for decades. APHIS has been aware of thison-g01ngviolation, yet hasconsistently failed to enforce i ts own regulations and the Animal welfare Act.Therefore, I .strongly urge APHISto address this situation immediately. In the interim and until the situation hasbeen. corrected, Iwill explorelegal options, including th e f i l ing of an action pursuant to 28 U.S.C. section 1361.T ~ a n k You for Your prompt consideration of our concerns regarding this matter.s1ncerely,------ ---------------------------

Page 2

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of

USDA

APR 21 2011------- --- ---------- ------- - ----- ------------- ----------------- --------- --------Dear ------- ----------Senator Rubio asked us to respond directly to your February 23, 2011, letter to himconcerning the welfare of animals exhibited by Miami Seaquarium.We recognize your concerns and appreciate receiving the detailed information you haveprovided. As you know, our Agency of the U.S. Department ofAgriculture enforcesthe Federal Animal Welfare Act (AWA), a law that helps protect certain animals,including marine mammals, by establishing minimum care and handling standards fortheir maintenance. Under the A WA, we require individuals who breed certain animalsfor commercial sale, use them in research, exhibit them to the public, or transport themcommercially to be licensed or registered with us. Our officials conduct inspectionsto ensure that the animals are provided adequate food and water, housing, sanitation,veterinary care, and room to move about normally in their cages, pens, or pools asrequired by the A WA.We take very seriously any allegations ofnoncompliance with the A WA. Accordingly,officials with our Agency's Animal Care (AC) program have logged in your originalletter as an official complaint (complaint number E 11-122) and will look into thematters of concern to you. Should we find that A W A violations occurred, we willtake the appropriate enforcement action as warranted by the evidence. In the meantime,if you have any questions or concerns about this or other regulated facilities, weencourage you to contact AC's Eastern Regional office at (919) 855-7100 or viaemail at [email protected] many people have expressed concern about the size ofLolita's pool, ourmeasurements indicate that it meets the A W A space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104 of3the AWA regulations. The volume requirement for Lolita 's pool is 25,943 ft ; the actualvolume is 49,308 ft3. The surface area requirement is 1,808.64 ft 2; the actual size is27,326 ft. The depth requirement is 12 feet; the actual depth ranges from 12 to 20 feet.Finally, the minimum horizontal dimension (MHD) requirement is 48 feet; the actualMHD measurement is' 80 feet in one direction and 60 feet in the other. The A W Aregulations also require facilities housing marine mammals to have contingency plans in

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tinittd ~ t a t t s ~ t J 1 a t t WASHINfSfON, tIC 20510

M'areh 31, 2011

Ms. Krysta HardenAssistao.t Secretary fur CongressionaL RelatiollsUS. Department of Agriculture212A \\llitten Building1400 Independence Avenue SWWashington, DC 2025()..OOO1Dear Ms. Harden,

--- elosed you "'ill find eoITeSpondence I received from my constituent. ----- -------------------- regarding the Mjami Seaquarium and the Animal Welfare Act.- respectfully request your review of his matter and response directly to ~ 1 r , ----------Thank you tor your time and attention to this lIUitter.

S ~ ! y , 4f/cLMarco RubioUnl ted States. Senator

MRiz:ll

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------------ ----------- ---------- ------ -------------- ----------------- ----------Februarv 23, 2011Honorable Marw RubioUnitedStates SenateB4ilA Oirkoen Senate Office BuildingWashington D,C. 20510-0004

Re: Miami 5eaqusriumViolations of Animal Welfare ActCorrespondence to APHIS

Dear Honorable Rubio:Enclosed please find my correspondence to the Anima! and Plant Health inspection 5enrice withphotographs. As my letter to APHIS states, Miami Seaquarium is in violation of the Animal Welfare Ai:tand most l.mfortunateJy and despite nl.lmeroi.lS requests from activist gra\Jl!S, individuals and the formalcomplaint filed by th e Humane Society at th e United States in 1995, Miami Sea(juarium has to date notbeen required to comply.i write this letter to humbly request that as. a senator and representatiYe of tl'le State of Florida that VOl./.please demand that APHIS force Miami 5eaquarium to complv with the laws and standards as se t fortftin the Animal Welfare Act and cited in my corre!POndence to APHIS,As you can see from m.,. photographs, the


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--------- ----------- ----------- ------ -------------- --------------------- -------------------F biuary 23, 2011USDA!APHis Animal CareUSDA/APHIS/AC4700 River Road, Unit 84Riverdale, MD 20737-1134

RE: Miami 5eaquarlumAnimElI Welfare AttTank


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visit was anything but pleasant and my dlildren an d I left with a sense that tne5e animals are indesperi1(e !'\eed o-f relocation to a fadlltv that can provide them with clean water and proper adequateliving space and veterinary care.The first "iolation of APHIS regulations I would like to cite are in regardlS to the inadequate living spaceof toiita. I am very well aware from my research mat to date your organization has refused to ac t Inaccordance. with its OWl'! policies wtlich Is cause for further outrage. APHIS regulation 9 C.F.R. Sec.. 3.104Space Requirements -states!

The primary endosure fer a Killer WhaJe fOrcinu$ Orca} must have a minimum horizontaldimension of no 1eS$ tn.," 48 feet In either direction with a straight line of travel scroos tbecenter.

I am well aware from my research that your asency has had this i!WJe brought to its attention not onlyby the Humane Society of the United State$ bu t by several activist groups and individuals alike hasadllised that lolita's tank and CSl'e exceeds $tand ards . c.tearly, lolita's tank does no t meet theseminimum standards a" there is merel-i 35 feet from th e lower portion of her tank to the woric station.Since this work station ,impedes the "'straight line of travel" across the tank then I nave no otheralternative but to. conclude that her tank does not meet your standards and f find your re;ponse that he rtank "exceeds standards" to be nat only inadequ are bu t downrigltt reprehensible.The second viQlation of th e Animal Welfare Act I would like to cite is Section 3.101 {a)l1i and (aHZIwnich clearly states:

Cal Construction requirements . (I } Indoor and outdoor housing facilities fOf marine mammafs.shall be structurally sound and maintained ill good repair, to protect th e ilJ1imals frommjury, [0. contain the animal5., and to restrict: the entrance of unwanted animals.. (2l Allmarine mammals shall be protected from abuse and harassment by th e vlewil'lg public bVthe use of a sufficient number ot employees or attendants to super'1ise th e viewing public,or by physical iulniers, such as fences, walis, glass partitions, or dist3nce-or both.

As demonstrated from my photographs, Miami Seaql,larium is clearly in violation of both of thesesubsections which are not protecting the animal.$. from health or harassment by tlte public. Thecondition of th e tank in the do/phin lobby is not maintained in good repair and is obviouslV dilapidatedand in immediate need of upgrading to protea th e health of the dolphins that it displays. Furthermore,from one photograph I am enclosing, you can clearly see that a dolphin is swimming aroW1d in the tankwith a piece of aluminum foil stuck to its nose. I am quite sure that th e object is aluminum roil as therev.rere several other pieces floating in the tank on that partiCl.llar visit. At the top of the dclphin lobby,any person can walk up tt l th e tank and look over and se e the dolphins. I cao only guess tbat some weI/intentioned guest tho\lght il would be amusing to let a dolph in play with somethIng shiny and thus thedolphin O


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In another incident that is also in yiolation of these same subsectkins, I WaS observing l..oIita after th eshow. I was standing next to a man who wa$ holding his two to three year aid daughter at th e edge ofthe tank so that $lie could look ower and see Lolita. who was dlreaJy in front of us under the watel'. Thissmall child had in her hand some :sort of $ a ~ a n wrap or plastic wrap and proceeded to throw a piece at itinto the water. Before she could throw in another p j ~ , I bad to gra/:! her hand and take th e pla$J:lcwrap away from her and 1:&11 her that it migl'lt "hurt the bIg Whale's tummy or the dolphIns' tummies".Her father obviously did not see a problem with /'tiS daughter throwing plastic wrap over th e edge of thetank and into tne water with Lolita and the four pacifIC white sided dolphins. To the ooneflt of MiamiSeaquarium, the staff in attendance was what I thought to be adequate, unfWllatefy there was nobarrier to protect Lolita or th e dolphin$ in her tank: from th e general public throwing ob jects into th etank, however we!l-intentioned they may be. These two incidents involving th e dOlphin and lolita wereon two days, M e after the other. I cannot help but to wonder how many other indden1:$ there are that


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have mtended. The information we received abolJt these a n j m l l ~ during the mws had little to noeducational value. We did learn " lot about laws and regulalioAs regarding the werfare of captNemarine m i ! m m a ~ and we also very unfiort:ul'lately learned that whlle there are agencies ( Y O I . I ~ 111pal'tlc.ular) that exist to protect these animals and act as ~ i r advtlcate$, wewere sore ly diSIllusioned asit appears that the park is the one that is protected while the animals are made to suffer for th e sake ofgreed in the very misguided attempt at "education".It is with ttts most humble of hearts that I would ask your organi2.ation to please investigate the MiamiSeaquaril.lm and p>ove no t just to myself but to my children that these laws do ~ i s t for tire protectionof animais and thilt the governmental authorities and bodies that are responsible for overseeing thewellbeing of animals in zoos, mmne parks and aquariurTl.$ liIbides by the standards that it has set. fwould ask. that your organization demal'ld that Miami Seaquilrlum comply with the mndards and lawsestablished and not turn a blind eye to the issues that affect these animals. "The greatl'less of ll (Jillionam be judged by the way its animals are treated:' -MOhandas Ghandl if your otganimtion andgovernmental authorities cannot comply with the laws that It hasse t forth fo r itself, then R


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of

MD

U ~ U A .

-

---------- ---- ------------ ------------ ------- ------ ----------------- --------- --------Dear ---------- --------

MAR 5 - 2010

Thank you for writing to Secretary Thomas J. Vilsack concerning Lolita, an orcakept atthe Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency of the U.S. Department ofAgriculture (USDA) enforces the Animal Welfare Act (A WA), a law that helps protectcertain animals, including marine mammals such as Lolita, by establishing minimum careand handling standards for their maintenance. Under the A W A, we require individualswho breed certain animals for commercial sale, use them in research, exhibit them to thepublic, or transport them commercially to be licensed or registered with us. Our officialsconduct inspections to ensure that the animals are provided adequate food and water,housing, sanitation, veterinary care, and room to move about normally in their cages,pens, or pools as required by the A WA.During our most recent inspection of the Miami Seaquarium, our officials found Lolitato be healthy, and she and the other marine mammals at the facility were receivingexcellent veterinary care. Miami Seaquarium has a fulltime attending veterinarian whohas outstanding credentials in marine mammal veterinary medicine, and Lolita's handlersare well trained. Miami Seaquarium also meets A WA regulations requiring that socialmarine mammals, such as orcas, be housed with at least one compatible animal of thesame or biologically related species. Lolita has shared her tank for many years withPacific white-sided dolphins that are, like Lolita, cetacean mammals.While many people have expressed concern about the size ofLolita's pool, ourmeasurements indicate that it meets the A W A space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104of the A WA regulations. The volume requirement for Lolita's pool is 25,943 ft3; theactual volume is 49,308 ft3. The surface area requirement is 1,808.64 ft2; the actual

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---------------------Page 2

size is 7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from 12 to20 feet. Finally, the minimum horizontal dimension (MHD) requirement is 48 feet;the actual MHD measurement is 80 feet in one direction and 60 feet in the other. Wedid not include the medical pool area in our MHD measurements of the main pool.Therefore, use of the medical pool area does not diminish the size of the main pool.While we understand the interest concerning a larger tank for Lolita, the A W A limitsour authority to enforcing the law's minimum standards. As we stated previously,Lolita's tank meets the AWA minimum requirements.While we recognize that you believe Lolita should be transferred to a sea pen in hernative habitat, our Agency cannot mandate that Lolita be released from the MiamiSeaquarium. As long as exhibitors like the Miami Seaquarium meet the A W Arequirements, we are obliged to license them to exhibit their animals. Our authorityto confiscate animals is limited to those situations in which an animal is sufferingand action is not taken to alleviate the condition, or environments that directly causean animal to be in imminent danger of suffering or death. This has not been the casewith Lolita or with the location of her tank.Again, we appreciate your concern for Lolita's welfare. Fo r more information about theAWA and our Agency's enforcement activities, we encourage you to visit our Web siteat www.aphis.usda.gov/ and select "Animal Welfare" on the left side of the page.S:;?Chester A. GipsonDeputy AdministratorAnimal Care

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Secretary Tom VilsackRm200AWhitten Bldg .U.S. Department of Agriculture14th & Independence Ave., SWWashington, DC 20250202-720-3631Email: [email protected] Telephone: 202":720-2791USDA Fax number: 202-720-2166cc: Kevin SheaActing AdministmtorAnimal and Plant Health Inspection ServiceU.S. Department ofAgriculture4700 River Road, Unit 97Riverdale,MD 20737-1234Email: APHIS. [email protected]

Dear Sec. Vilsack:

---------- ---- ------------ ------------ ---- ---------Kihei, III 96753

I am writing to request your urgent action to uphold the intent of he Animal Welfare Act(AWA) regarding the tank enclosure for Lolita, the killer whale at the MiamiSeaquarium.Lolita's stadium lies directly in the path of hurricanes growing ever more intensive due toglobal warming. Lolita and all the marine mammals at the park should be relocated to asafer location. For Lolita this means she should be transported back to her native habitatand her actual genetic family for retirement under human care with the option to rejoinher family of birth.But first, please be clear that the Seaquarium WTI.tL NOT build a new tank for Lolita.Since at least 1978 the USDA has reassured critics with the promise that a new tankwould soon be built on the Seaquarium grounds for Lolita. Lolita is nearing the end ofher show business career one way or another, and it is impossible to capture orcasworldwide or to purchase one on the open market. Despite 29 captive births since 1993,the number of orcas in captivity has dropped from over 50 ten years ago to around 43 in2008. Mr. Hertz will not invest in a big new tank with the likelihood that there will be noorca alive in Miami or available on the market to perform in it.The existing tank is, by the intent of the AWA, illegal. The minimum horizontaldimension in this enclosure, from pool's edge to the work station is only 35 feet. TheAnimal and Plant Health Inspection Service (APIllS) regulations for the humanehandling, care, treatment, and tmnsportation of marine mammals (9 C.F.R. Section 3.104- Space Requirements) state that the primary enclosure for a killer whale (Orcinus orca)

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must have a minimum horizontal dimension (MHD) of no less than 48 feet. Measuringover and ignoring the slideout station to the back of the medical pool gives an MHO of60 feet, but only by illegally ignoring that the station presents a concrete wall thatobstructs Lolita's ability to travel to the medical pool in that dimension.The intention of the space requirement regulations found at Section 3.104 -- the MHOwas to describe the minimwn distance required for a straight line of ravel across thenarrowest point of a primary enclosure, not to describe the circumference of saidenclosure.Two, whenever an animal is confined in the Seaquarium's medical pool under veterinarysupervision, this area behind the work station is temporarily no longer part of he primaryenclosure, and the MHO of her primary enClosure unequivocally becomes 35 feet. This isin violation of Section 3.104 of the APIllS regulations.Lolita has been without adequate space for decades. APHIS has been aware of his ongoing violation, yet has consistently failed to enforce its own regulations and the AnimalWelfare Act. Therefore, I strongly urge APHIS to address this situation immediately. Inthe interim and until the situation has been corrected, I will explore legal options,including the filing of an action pursuant to 28 U.S.C. Section 1361.Thank you for yout prompt consideration ofour concerns regarding this matter.

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of

----- ------------ --------------- --------------- ----------------------- ---------------- --------Dear ----- ----------

APR 202010

Thank you for your letter of April 8, 2010, to. Secretary Thomas J. Vilsack concerningLolita, an orca kept at the Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency of the U.S. Department ofAgriculture (USDA) enforces the Animal Welfare Act (AWA), a law that helps protectcertain animals, including marine mammals such as Lolita, by establishing minimum careand handling standards for their maintenance. Under the A W A, we require individualswho breed certain animals for commercial sale, use them in research, exhibit them to thepublic, or transport them commercially to be licensed or registered with us. Our officialsconduct inspections to ensure that the animals are provided adequate food and water,housing, sanitation, veterinary care, and room to move about normally in their cages,pens, or pools as required by the A WA.During our most recent inspection of the Miami Seaquarium, our officials found Lolitato be healthy, and she and the other marine mammals at the facility were receivingexcellent veterinary care. Miami Seaquarium has a full time attending veterinarian whohas outstanding credentials in marine mammal veterinary medicine, and Loli ta's handlersare well trained. Miami Seaquarium also meets A W A regulations requiring that socialmarine mammals, such as orcas, be housed with at least one compatible animal of thesame or biologically related species. Lolita has shared her tank for many years withPacific white-sided dolphins that are, like Lolita, cetacean ma:nlinals.While many people have expressed concern about the size of Lolita' s pool, ourmeasurements indicate that it meets the A W A space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104 ofthe AWA regulations. The volume requirement for Lolita 's pool is 25,943 ft3; the actual



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----- ------------ ---------Page 2

volume is 49,308 f't3. The surface area requirement is 1,808.64 ft2; the actual size is7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from 12 to 20 feet.Finally, the minimum horizontal dimension (MHD) requirement is 48 feet; the actualMHD measurement is 80 feet in one direction and 60 feet in the other. We did notinclude the medical pool area in our MHD measurements of the main pool. Therefore,use of the medical pool area does not diminish the size of the main pool. While weunderstand the interest concerning a larger tank for Lolita, the A W A limits our authorityto enforcing the law's minimum standards. As we stated previously, Lolita's tank meetsthe A W A minimum requirements.While we recognize that you believe Lolita should be transferred back to her nativehabitat, our Agency Ca!Ll1ot ma..l1date that Lolita be released from the Miami Seaqua..ri.um.As long as exhibitors like the Miami Seaquarium meet the A W A requirements, we areobliged to license them to exhibit their animals. Our authority to confiscate animalsis limited to those situations in which an animal is suffering and action is not taken toalleviate the condition, or those where the animal is in an environment that directlycause it be in imminent danger of suffering or death. This has not been the case withLolita or with the location of her tank.Again, we appreciate your concern for Lolita's welfare. For more infonnation about theAWA and our Agency's enforcement activities, we encourage you to visit our Web siteat www.aphis.usda.gov/ and select "Animal Welfare" on the left side of the page.

~ t ? {1; Chester A. GipsonDeputy AdministratorAnimal Care

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Secretary Tom VilsackRoom 200-AWhitten BldgU.S. Department of Agriculture14th & Independence Ave., SWWashington, DC 20250RE: Lolita - Killer Whale at Miami SeaquariumDear Secretary Vilsack: .

April 8, 201 0

I am writing to request your urgent action to uphold the intent of the Animal Welfare Act(A WA) regarding the tank enclosure for Lolita, the killer whale at the MiamiSeaquarium.Lolita's stadium lies directly in the path of hurricanes growing ever more intensive due toglobal wanning. Lolita and all the marine mammals at the park should be relocated to asafer location. For Lolita this means she should be transported back to her native habitatand her actual genetic family for retirement under human care with the option to rejoinher family of birth.

.' I w ; ( I.

B\-!1.tl:rst;. p l e a s ~ be ~ l e a r . t h a t the Seaquarium . w ~ L L NOT hv.i1


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Two, whenever an animal is confined in the Seaquarium's medical pool under veterinarysupervision, this area behind the work station is temporarily no longer part of the primaryenclosure, and the MHO ofher primary enclosure unequivocally becomes 35 feet. This isin violation of Section 3.104 of the APHIS regulations.Lolita has been without adequate space for decades. APHIS has been aware of this ongoing violation, yet has consistently failed to enforce its own regulations and the AnimalWelfare Act. Theretore, 1 strongly urge APHIS to address this situation immediately. Inthe interim and until the situation has been corrected, I. will explore legal options,including the tiling of an action pursuant to 28 U.S.C. Section 1361.Thank you for your prompt consideration of our concems regarding this matter.------------~ . I 4 r A / -----------

------------ --------------- -------------------------------------- ---- --------

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USDA-

Dear Concerned Citizen:

MAR - 9 2010

Thank you for you writing to Secretary Thomas J. Vilsack concerning Lolita, an orcakept at the Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency of the U.S. Department ofAgriculture (USDA) enforces the Animal Welfare Act (A WA), a law that helps protectcertain animals, including marine mammals such as Lolita, by establishing minimum careand handling standards for their maintenance. Under the A WA, we require individualswho breed certain animals for commercial sale, use them in research, exhibit them to thepublic, or transport them commercially to be licensed or registered with us. Our officialsconduct inspections to ensure that the animals are provided adequate food and water,housing, sanitation, veterinary care, and room to move about normally in their cages,pens, or pools as required by the A WA.During our most recent inspection of the Miami Seaquarium, our officials found Lolitato be healthy, and she and the other marine mammals at the facility were receivingexcellent veterinary care. Miami Seaquarium has a fulltime attending veterinarian whohas outstanding credentials in marine mammal veterinary medicine, and Lolita's handlersare well trained. Miami Seaquarium also meets A W A regulations requiring that socialmarine mammals, such as orcas, be housed with at least one compatible animal of thesame or biologically related species. Lolita has shared her tank for many years withPacific white-sided dolphins that are, like Lolita, cetacean mammals.While many people have expressed concern about the size of Lolita's pool, ourmeasurements indicate that it meets the A WA space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104 ofthe A WA regulations. The volume requirement for Lolita 's pool is 25,943 ft3; the actual

.... APHIS Safeguarding American AgricultureAPHIS is an agency of USDA's Marketing and Regulatory Programs

n Equal Opportunity Provider and EmployerFOIA 11-393 PT-1. Pg #000041


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Concerned CitizenPage 2

volume is 49,308 ft3. The surface area requirement is 1,808.64 ft2; the actual size is7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from 12 to 20 feet.Finally, the minimum horizontal dimension (MHD) requirement is 48 feet; the actualMHD measurement is 80 feet in one direction and 60 feet in the other. We did notinclude the medical pool area in our MHD measurements of the main pool. Therefore,use of the medical pool area does not diminish the size of he main pool. While weunderstand the interest concerning a larger tank for Lolita, the A W A limits our authorityto enforcing the law's minimum standards. As we stated previously, Lolita's tank meetsthe A W A minimum requirements.While we recognize that you believe Lolita should be transferred to a sea pen in hernative habitat, our Agency cannot mandate that Lolita be released from the MiamiSeaquarium. As long as exhibitors like the Miami Seaquarium meet the A W Arequirements, we are obliged to license them to exhibit their animals. Our authority toconfiscate animals is limited to those situations in which an animal is suffering and actionis not taken to alleviate the condition, or environments that directly cause an animal to bein imminent danger of suffering or death. This has not been the case with Lolita or withthe location ofher tank.Again, we appreciate your concern for Loli ta's welfare. For more information about theA WA and our Agency's enforcement activities, we encourage you to visit our Web site atwww.aphis.usda.gov/ and select "Animal Welfare" on the left side of the page.Sincerely,

~ ~ ~ 7 . 4 1 ~ V h ,-fe,.Chester A. GipsonDeputy AdministratorAnimal Care

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From: ----------------- -----------------------------Sent: Monday, March 01,2010 10:38 PMTo: [email protected]; [email protected]; [email protected];AGSEC -USDA; [email protected]: [email protected]; vice [email protected]: Fw: A concerned citizen

This is my third request with no response!To Whom it May Concern:I am writing to request your urgent action to uphold the intent of the AnimaJWelfare Act(AWA) regarding the tank enclosure for Lolita, the killer whale at the MiamiSeaquarium. I am aconcerned citizen who has recently visited the Miami Seaquarium and was appalled bywhat Iwitnessed. After doing some internet searching, I found to my amazement that Lolita haslived inthat tiny tank for almost 40 years! I wondered why there were protesters outside theMiamiSeaquarium and now I know.As the department of this United States of America that is in charge ofmaking sure theseanimals, why are you not upholding the law? Section 3.104(a) of he Animal Welfare ,Act statesmarine mammals must "kept in enclosures must be constructed and maintained so that theanimals contained within are provided sufficient space, both horizontally and vertically,to beable to make normal postural and social adjustments with adequate freedom ofmovement, in orout ofthe water. IWhy is Lolita in a tank that does not provide these requirements set forth in the law?Section 3.104 (1Xi) states liThe required minimum horizontal dimension (MHD) of apool forGroup I cetaceans shall be 7.32 meters (24.0 feet) or two times the average adult lengthof helongest species ofGroup 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 ofthe head in bulbousheadedanimals, to the notch in the tail flukeS ), whichever is greater; except that such MHDmeasurement may be reduced from the greater number by up to 20 percent if the amountof he

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reduction is added to the MHD at the 90-degree angle and if he minimum volume andsurfacearea requirements are met based on an MHD of7.32 meters (24.0 feet) or two times theaverageadult length of he longest species ofGroup I cetacean housed t h e r e i ~ whichever isgreater. "Per the law of the Animal Welfare Act, the average adult length of he longest species ofan orcawhale is 48 feet. There is absolutely no way that Lolita's tank is 48 feet horizontally.Even aquick glance reveals her tank does not provide Lolita with sufficient space. Lolita's tankis only35 feet from the pool's edge to the work station in the middle. I didn't see anywhere in theAnimal Welfare Act that the horizontal dimension included a cement wall in the middle.Lolitamay be a special orca but she can't travel through cement, which makes her tank illegalby the. standards of the law!Was the intention of he space requirement regulations found at Section 3.104to have acementwall blocking the minimum horizontal distance? At my recent visit to the MiamiSeaquarium,Lolita also was housed with 3 pacific white side dolphins which makes the law evenmore strict.Section 3.104 4(ii) of the Animal Welfare Act states When a mixture of Group I and .Group IIcetaceans are to be housed in a pool, the required MHD, depth, and volume must be met.Why isthe Miami Seaquarium allowed to continually break the law with no consequences?Section 3. 103 (b) of he Animal Welfare Act states "Natural or artificial shelter which isappropriate for the species concerned, when the local climatic conditions are taken intoconsideration, shall be provided for all marine mammals kept outdoors to afford themprotectionfrom the weather or from direct sunlight."Lolita's stadium lies directly in the path ofhurricanes growing ever more intensive due toglobalwarming. There is nothing covering Lolita's tank. The onlookers are shaded from the hotFloridasun, but not Lolita. Lolita does not have adequate shelter from Miami's climaticconditions. Shecannot dive to deep waters to protect herself from the sun. She cannot dive to deep waters

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toprotect herself from hurricanes or other severe climatic conditions Miami is known for.Why hasnothing been done for 40 years to ensure Lolita has adequate shelter?Arthur Hertz has done absolutely nothing to build Lolita a tank of adequate size. He hasbuilt thenew "swim with the dolphins" area but nothing for Lolita. He is now funding theWometcoAquatic Center in Sunny Isles Florida that is to open in 2013. Why is Arthur Hertz notbeingforced to uphold Your law and build a bigger tank for Lolita? Why has your departmentallowed .Arthur Hertz to continue to "promise" to build.Lolita an adequate tank while constructingmajorprojects to make him more money?

Section 3.106 of he Animal Welfare Act states "Marine mammals, whenever known tobeprimarily social in the wild, must be housed in their primary enclosure with at least onecompatible animal of he same or biologically related species, except when the attendingveterinarian, in consultation with the husbandry/training staff, determines that suchhousing isnot in the best interest of the marine mammal's health or well-being. Animals housedseparatelymust have a written plan, approved by the attending veterinarian, developed inconsultation withthe husbandry/training staff, that includes the Justification for the length of time theanimal willbe kept separated or isolated, information on the type and frequency of enrichment andinteraction, i f appropriate, and provisions for periodic review of the plan by the attendingveterinarian. "Lolita has lived alone without the companionship of another Orca for 30 years!!! Killerwhalestravel and live with their family pod members from birth until death! Does that not statealonethat Orcas are sociable creatures? What justification is there that Your department hasallowedLolita to be kept alone without another orca for 30 years? Keeping her with Pacificdolphins doesno t constitute a "compatible animal of Lolita's kind". Orcas and Pacific dolphins do notsocializeand hang out in the wild. Orcas stay with their family pod.Not only is Lolita in living in substandard conditions, the rest of the animals at the Miami

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Seaquarium are not in much better conditions. As I walked through the park, I foundterribleconditions I have ever seen marine mammals kept in There were rust and algae growingall overseveral outside areas around the animals tanks with water leaking out of several areas.There wasexposed wiring that surely no experienced electrician would ever install. There waselectricalpanels that were exposed to the weather. There was trash in the animals pools and notnewlooking trash. Trash with algae growing all over it. Surely these conditions are not up tostandardor any city ordinances and codes. Why are these animals allowed to be kept in these poorconditions? When is this establishment inspected? I would send pictures, but the MiamiSeaquarium's website states I'm not allowed.Lolita has been without adequate space for decades. The Miami Seaquarium has beenallowed tokeep their animals in poor, filthy conditions. APHIS has been aware of his on-goingviolation,yet has consistently failed to enforce its own regulations and the Animal Welfare Act.Therefore,I strongly urge APHIS to address this situation immediately. In the interim and until thesituationhas been corrected, I will explore legal options, including the filing of an action pursuantto 28U.S.C. Section 1361.Lolita and all the marine mammals at the park should be relocated to a safer location. ForLolitathis means she should be transported back to her native habitat and her actual geneticfamily forretirement under human care with the option to rejoin her family ofbirth.But fIrst, please be clear that the Seaquarium WILL NOT build a new tank for LolitaLolita isnearing the end ofher show business career one way or another, and it is impossible tocaptureorcas worldwide or to purchase one on the open market. Despite 29 captive births since1 9 ~ , b .number of orcas in captivity has dropped from over 50 ten years ago to around 43 in2008. Mr.Hertz will not invest in a big new tank with the likelihood that there will be no orca alivemMiami or available on the market to perform in it.As a concerned citizen, I will be and will let everyone I

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know ofthe conditions I witnessed at the Miami Seaquarium, I have been to marine parks allovertheUnited States and have never witnessed such substandard conditions as at the MiamiSeaquarium.Your website says"APHIS provides leadership in ensuring the health and care of animalsandplants." Please consider the conditions Lolita and the other animals at the MiamiSeaquarium anduphold the law.I Thank you for your prompt consideration ofmy concerns regarding this matter and lookforward to hearing from you.Sincerely,--------- ---------- -------------------------------------------------Mahatma Gandhi said the greatness of a nation is judged by the way it treats itsanimals.

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----- -- ------ ------- -------------

MAY 14 2010

------- ------------------------------------Dear ----- ----- --------------Thank you for your e-mail ofMay 5,2010, to Secretary Thomas J. Vilsack concerningLolita, an orca kept at the Miami Seaquarium.We recognize your interest in Lolita's welfare. Our Agency of the U.S. Department ofAgriculture (USDA) enforces the Animal Welfare Act (AWA), a law that helps protectcertain animals, including marine mammals such as Lolita, by establishing minimum careand handling standards for their maintenance. Under the A W A, we require individualswho breed certain animals for commercial sale, use them in research, exhibit them to thepublic, or transport them commercially to be licensed or registered with us. Our officialsconduct inspections to ensure that the animals are provided adequate food and water,housing, sanitation, veterinary care, and room to move about normally in their cages,pens, or pools as required by the A WA.During our most recent inspection of the Miami Seaquarium, our officials found Lolitato be healthy, and she and the other marine mammals at the facility were receivingexcellent veterinary care. Miami Seaquarium has a full-time attending veterinarian whohas outstanding credentials in marine mammal veterinary medicine, and Lolita's handlersare well trained. Miami Seaquarium also meets AWA regulations requiring that socialmarine mammals, such as orcas, be housed with at least one compatible animal of thesame or biologically related species. Lolita has shared her tank for many years withPacific white-sided dolphins that are, like Lolita, cetacean mammals.While many people have expressed concern about the size of Lolita's pool, ourmeasurements indicate that it meets the A W A space requirements for marine mammals.The figures specifying the minimum space requirements are taken from section 3.104 ofthe A WA regulations. The volume requirement for Lolita's pool is 25,943 ft3; the actual

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Page 2

volume is 49,308 ft3. The surface area requirement is 1,808.64 ft2; the actual size is7,326 ft2. The depth requirement is 12 feet; the actual depth ranges from 12 to 20 feet.Finally, the minimum horizontal dimension (WIHD) requirement is 48 feet; the actualMHD measurement is 80 feet in one direction and 60 feet in the other. We did notinclude the medical pool area in our MHD measurements of the main pool. Therefore,use of the medical pool area does not diminish the size of the main pool. While weunderstand the interest concerning a larger tank for Lolita, the A W A limits our authorityto enforcing the law's minimum standards. As we stated previously, Lolita's tank meetsthe A W A minimum requirements.While we recognize that you believe Lolita should be transferred back to her nativehabitat, our Agency cannot mandate that Lolita be released from the Miami Seaquarium.As long as exhibitors like the Miami Seaquarium meet the A W A requirements, we areobliged to license them to exhibit their animals. Our authority to confiscate animalsis limited to those situations in which an animal is suffering and action is not taken toalleviate the condition, or those where the animal is in an environment that directlycauses it to be in imminent danger of suffering or death. This has not been the casewith Lolita or with the location of her tank.Again, we appreciate your concern for Lolita's welfare. For more information about theA WA and our Agency's enforcement activities, we encourage you to visit our Web siteat www.aphis.usda.gov/ and select "Animal Welfare" on the left side of the page.Sincerel

Documents

APHIS Lolita