Tokitae's Freedom: The Failed Lawsuits of a Successful Movement and The Renewed Hope for Her Release

Today, January 6th 2023, is the sixth anniversary of the passing of Tilikum. He was the Orca who killed his trainer, Dawn Brancheau, in 2010. While nothing can be done to bring him or Dawn justice, it is worth reflection on Orcas left behind who can still be saved. There is a Southern Resident Orca in captivity at the Miami Seaquarium in Florida. Her given name is Lolita, her stage name is Tokitae, and the Lummi Nation, the Native American tribe of Washington state where she is from, refers to her as Sk’aliCh’elh-tenaut (pronounced SKA-li CHUKH-teNOT). People who know this Orca typically know her by the first name she was introduced as when they met her. I know her as Tokitae and will be referring to her by that name throughout this article. There has been an effort to see her released from captivity for over 27 years. This movement started on March 9, 1995, when Washington Secretary of State Ralph Munro (R) and Governor Mike Lowry (D) launched the "Free Lolita!" campaign. Since then, five lawsuits directed towards freeing her, and one directed towards classifying her as part of an endangered species, have been filed. In this article, we will discuss all five lawsuits, recent developments in Tokitae’s living situation, and renewed hopes for her relocation to a seaside sanctuary.

Tokitae has been in her tank for a long time, since 1970 in fact. This past August the 4th marks the 52nd year of her captivity. The day of her capture was sunny, quite windy, and had a temperature throughout the day that measured between 53-64 degrees fahrenheit (12-18 degrees celsius). Since her capture and relocation to Miami Seaquarium on September 24th of 1970, she has spent all her time in a tank that is not even the size of a basketball court under the blistering Miami sun. For five decades, she has resided there. For every event this reader may have been to in the last fifty years, Tokitae has been swimming in the same cramped space. Her tankmate, Hugo, passed away in 1980, so she has spent all of this time by herself. This kind of solitary confinement has proven to have lifelong detrimental effects on humans after just 15 days. As an act of the most bare minimum level of mercy, she must be released.

The first lawsuit was filed in 2011 against SeaWorld by People for the Ethical Treatment of Animals (PETA) under the 13 Amendment. The 13th amendment prohibits slavery in the United States and the text is quite brief and to the point. It reads as follows:

“AMENDMENT XIII

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.”

Interestingly, the amendment makes no mention or reference to who is prohibited from being enslaved. It did not mention humans specifically, and PETA’s claim was that it applied at least to highly evolved animals as well as humans. It was argued that orcas are so intelligent and sentient, that their forced servitude was comparable to human slavery. The following seven justifications were made:

1. They’re held captive.

2. They have no way of escape.

3. They’re separated from homes and families.

4. They can’t engage in natural behaviors with free will.

5. They’re subject to the will of their trainers.

6. They’re confined in stressful and inadequate conditions.

7. They’re forced into involuntary breeding.

In the end, the case was dismissed because the judge ruled that the 13th amendment does not apply to non-humans.

The second lawsuit was filed by the Animal Legal Defense Fund (ALDF). In 2013, the ALDF filed a lawsuit in federal court in the southern district of Florida to ensure Tokitae’s protection under the Animal Welfare Act (AWA). This suit’s case was against the USDA, which is supposed to monitor the living conditions of captive animals under the AWA. The AWA sets legal limits on the size of the tank, the exposure to the sun, and being kept in isolation. The argument was that the USDA was ignoring its own regulations.

The major point of contention in this case was that Tokitae’s tank was too small. One dimension of tanks housing cetaceans is supposed to be 48 feet long. Tokitae’s tank is technically 48 feet wide. However, the tank has a concrete obstruction in the middle of it designed for the benefit of performances by the orca and her trainers. In effect, Tokitae does not have 48 feet of swim distance between one side of the tank and the other. She only has enough unobstructed room to swim 35 feet. Counter-arguments included the point that Tokitae could swim around the concrete island and, strangely enough, the debate of whether the Miami Seaquarium even had to meet the standards of the AWA at all. It is the Animal and Plant Health Inspection Service (APHIS) under the USDA that is supposed to enforce the regulations. The case was dismissed citing agency discretion, meaning that it was up to APHIS to decide how they enforced the policies of the AWA. There was enough of a gray area in Tokitae’s tank dimensions that it was left at its size and she didn’t have to be moved.

The Animal Welfare Act left APHIS a process for issuing permits for keeping captive animals, but not for renewing permits. In the appeals decision, the court focused on whether the word “issue” should include “renew” or not and decided that the two processes should be considered separately. This means that the USDA has the authority to create its own process for renewing permits. In that process, the Miami Seaquarium has historically been allowed to renew their permits without proving that they’ve met the standards of the AWA. They’ve been grandfathered in. The first USDA case was dismissed, appealed, and dismissed again in 2015.

The third lawsuit was filed in response to a transfer of ownership of the Miami Seaquarium. In 2014, a company called Palace Entertainment bought the Miami Seaquarium, which should have closed that permit renewal loophole. That did not occur, and a new permit was issued in spite of all the violations. In 2016, the Orca Network, the Animal Legal Defense Fund and PETA brought a second case against the USDA in federal court in North Carolina. This case was meant to argue that the USDA should require the Miami Seaquarium to be “issued” a permit because of the transfer of ownership of the park, and not simply have their exiting permit “renewed.” The court simply cited agency discretion again and dismissed the case. It was appealed and as of this writing PETA has prevailed on appeal and is back in District Court. This was the last update as of late 2021, and it is unclear if the suit is still pending or if it has been settled. PETA has been known to settle cases against the USDA with the stipulation that they meet their requests and pay for attorney fees. Either way, we will return to this subject later when we discuss recent developments in Tokitae’s story.

The fourth lawsuit took a different route in 2015. PETA filed a lawsuit against NOAA. NOAA is the National Oceanic Atmosphiric Administration. Their case and argument was that the Endangered Species Act (ESA), which was set to provide legal protection to plants and animals in danger of extinction and listed Southern Resident Orcas as endangered, should actively apply to Tokitae. Tokitae is a Southern Resident Orca, but wasn’t included in the ESA in 2005. In May of 2015, PETA won their case and Tokitae was listed as endangered ten years after all South Resident Orcas were listed as such in. This meant that any protections for Southern Resident Orcas should also be granted to Tokitae, and more importantly, any legal ramification for violating ESA should (in theory) apply to the Miami Seaquarium. This brings us to the fourth lawsuit under discussion.

PETA filed a lawsuit against the Miami Seaquarium for harm and harassment of Tokitae under The Endangered Species Act. This was also filed in the southern district court in Florida, and the suit listed thirteen physical and psychological injuries that Tokitae has suffered due to her living conditions at the Miami Seaquarium. They included the size of her tank, the lack of social companionship, injuries from dolphins, dental issues, stress, lack of shade, bacterial and fungal infections, mild kidney disease, repeated respiratory infections, and finally stereotypic behavior that indicated psychological distress like logging motionless in the water. This, PETA argued, was harassment under the ESA and was therefore illegal. Of the cases we have discussed, this one was by far the strongest and most legally grounded case. The case was, unbelievably, dismissed. In her decision the judge argued that harm, in the definition of Endangered Species Act, was that which actually injured or killed an animal. Her position was that harassment, as outlined in the legislation, was only actionable if the harm was sufficiently serious. None of the 13 injuries cited by PETA were sufficient enough to cause serious harm or death. The case was appealed and dismissed again in 2018. Here there is an absurdity or a contradiction. Either harassment of wild animals would have to rise to the level of seriously injuring or killing the animal to be legally actionable, which would be disastrous, or such infractions would be held to contradictory standards depending on whether the animal was captive or wild.

Let us take stock of what we have discussed thus far. The first was dismissed because the 13th amendment does not apply to non-humans and Tokitae doesn’t enjoy the right afforded by it. The second was dismissed because it is up to agency discretion how laws are regulated and enforced, and the third lawsuit was at least initially dismissed for the same reason. The fourth lawsuit, the one that sought to categorize Tokitae as a member of her endangered wild counterparts. That case was successful, and I don’t want to minimize how important that is. The movement to free captive orcas has been operating almost since the very first capture in the 1960s. It has been met with scorn, long waiting periods where nothing but peaceful protests occurred, and a string of defeats. It is important to appreciate the victories for what they are, and as victories go this one was extremely important.

Any discussion that involves freeing Tokitae, or even just moving her out of the cramped concrete pit she currently occupies, will be greatly assisted by her legal categorization as an endangered animal. That being said, the hope was that this would pay dividends sooner rather than later. The fifth lawsuit, having been dismissed based on the outlandish claim that she wasn’t being harassed because she hadn’t been maimed or killed, was a significant negative blow. PETA was simply asking that Tokitae be treated as a wild orca would, and even this was denied as legally reasonable. To recap, she does not possess the right to not be enslaved, it is up to industry discretion to decide how her living conditions are enforced, and she does not enjoy the protection of her wild counterparts because she isn’t being seriously harmed. Even with all of this, there have been many good developments taking place with great rapidity.

In mid-August of 2021, The Dolphin Company (a Mexican-based theme park corporation) purchased the Miami Seaquarium from Palace Entertainment. Palace Entertainment was notoriously uncooperative with any attempts to free or improve the living conditions of Tokitae. They were known to call the police on peaceful protesters who got too close to their property, and they also fired a vet who voiced concerns about Tokitae’s health and treatment. It is unclear whether the 2016 lawsuit against the USDA was settled or had any influence in the events that followed The Dolphin Company’s purchase, but the USDA did conduct an inspection this time. On June 8th of 2021, the USDA released a 17-page report on the condition of the Miami Seaquarium that related to the condition it was left in by Palace Entertainment. While no one who had been following news surrounding the park expected anything good, the inspection report was absolutely scathing. It included news that dolphins were dying, Tokitae was being fed rotten fish, and marine mammal enclosures were under severe disrepair.

Once Miami Seaquarium was sold to its new owners, there was renewed hope that they would be more open to addressing concerns about Tokitae’s health. These hopes were amplified when, on March 4th of 2022, the USDA announced that a condition of the issued permit to The Dolphin Company was that Tokitae be retired from public performances. This would remove undue physical exertion from her lifestyle, as well as the stress that is associated with performing in front of crowds for food. A new goal was formed to have Tokitae evaluated by independent veterinarians, i.e. veterinarians not on the theme park’s payroll. On March 23rd of 2022, Miami-Dade County Mayor, Danielle Levine Cava, announced an agreement with The Dolphin Company to have Tokitae inspected by an independent vet on a monthly basis. From August of 2021 to March of 2022, more progress had been made for the benefit of Tokitae than in the prior 10-year period fettered with legal action. But this was to be only the beginning of the good news, though there was a brief period when Tokitae’s health appeared to be declining.

On September 30th of 2022, Miami Seaquarium reported that Tokitae was on antibiotics for a chronic infection and that she had a stable appetite. On the second of this month they reported that her overall health was stabilized by the antibiotics but while her condition was, “not considered critical, her appetite has decreased.” This was, to say the least, a very worrying period of time for those that have been rooting for Tokitae’s freedom. All of the faith, hope, and much-needed improvements to her living conditions were riding on pulling through a health scare from an orca that was long overdue for release. After decades of living in captivity and the string of deaths of captive orcas in the previous 18 months, it would have been tragic for her to pass when the reality of her freedom was closest to being realized. From October 7th-9th, daily reports noted that her appetite and activity levels were improving. On October 14th, two massive pieces of good news were broken by the WPLG Local 10 news station. The first was that Tokitae was out of the woods when it came to her health. The second was, incredibly, that if her health continued to improve then The Dolphin Company was open to moving her to a seaside sanctuary in Washington state. After months of hoping that the Miami Seaquarium’s new owners would be receptive to Tokitae’s advocates, followed by an incredibly stressful two-week period during which her health was a serious concern, we finally had the news we were looking for: if Tokitae continues to get better, she will go home.

The gravity of this news absolutely cannot be overstated. It has been 27 years since the movement to free Tokitae began. The only orca to have ever been freed, his name was Keiko, died in 2003, and his death is often falsely used as proof that orcas can’t be released. The documentary Blackfish dealt a massive financial blow to Seaworld and the captive orca industry, but Seaworld’s stocks have largely recovered and the Miami Seaquarium saw a spike in attendance when lockdowns were lifted after the pandemic. We have learned that Sea Sanctuaries are a better idea for orcas than release into the open ocean. Tokitae’s release would not only mean everything to her, it would also open the door to releasing other captive orcas. We know it will work, and once her release supplies actual proof of the viability of sea sanctuaries, the facts will no longer be able to be twisted. We’ve come a long way, and while there is still a long way to go we are armed with more hope than ever. We chose faith over fear, and faith is winning. In the battle for respect and freedom, the orcas will, at last, have the final say.