May 6, 2013

Don't let Lolita pervert the Endangered Species Act

By Jonathan Wood Attorney

People for the Ethical Treatment of Animals (PETA) has petitioned the National Marine Fisheries Service (NMFS) to include Lolita – a killer whale and the biggest attraction at Miami’s Seaquarium for more than 40 years – as a member of the Southern Resident killer whale population under the Endangered Species Act.  This population is also the subject of the petition that PLF filed on behalf of the Center for Environmental Science, Accuracy & Reliability to delist this population.  PETA’s petition adopts a bizarre interpretation of the law for listing species under the ESA. This probably shouldn’t be a surprising move from the organization that sued SeaWorld alleging that it enslaves its killer whales, in violation of the 13th Amendment.

Under the ESA, listing decisions must be made on the basis of 5 factors, which concern the threats to a species and the adequacy of other mechanisms to protect the species.  PETA, however, is attempting to apply these factors, not to the species, but to an individual member.  One of the factors is whether the species is at risk because of “overutilization for commercial, recreational, scientific, or educational purposes.”  PETA’s reinterpretation would threaten the many commercial, recreational, scientific and educational benefits that humans derive from animals, because it treats commercial use of a single animal as a reason to list under the ESA.  According to PETA’s petition:

While the SRKW population suffers the lingering effects of their depletion for captive display, the impact on Lolita is far more direct and devastating.  Every moment of her life is spent in service of Seaquarium’s commercial gain.  Lolita is on display 365 days a year and performs two shows daily.  Her shallow tank is the smallest orca tank in North America.  She has no opportunity to forage for live fish or socialize with other orcas.

I don’t know whether – because of the size of her tank or otherwise – Lolita has been mistreated, and the petition certainly suggests that this is PETA’s real concern.  But, the ESA’s take provision is poorly suited to deal with harms to particular animals, as opposed to species-wide threats.  When you eat a hamburger, you’re utilizing an animal for a commercial purpose.  When you play fetch with your dog, that’s a recreational purpose.  And countless medicines were only produced because animals were utilized for scientific purposes.  But none of these examples raise the extinction concerns that underlie the ESA, because individual animals can be used for commercial or other purposes without creating a threat to a species..

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