At 49, the senior whale will be added
to the endangered listing for the Southern Resident Killer Whales found in the waters off Seattle, where Lolita was captured in 1970.
The Southern Resident population was depleted between 1965 and 1975 because of captures conducted for marine parks, according to NOAA Fisheries
. The population's numbers remain low due to such environmental factors as pollution, oil spills and noise from passing vessels, NOAA says. As a result, the Southern Resident killer whales were added to the endangered species 10 years ago.
Animal activists, People for the Ethical Treatment of Animals, Animal Legal Defense Fun and the Orca Network see this ruling as a victory.
"It's Lolita's chance of freedom," said Jared Goodman, PETA's director of animal law. "It's a huge step."
Activists petitioned NOAA to include Lolita to the Southern Resident endangered list, saying they never had the right to separate her from designation for the Seattle killer whale population.
About 17,000 comments were submitted to the federal agency in support of the endangered designation for Lolita.
Animal rights activists want Lolita eventually released back into the wild if she can be rehabilitated to survive on her own after 40 years of captivity where she is hand-fed instead of capturing her own food.
Websites such as SaveLolita (savelolita.org) and protests like one in Miami where hundreds marched for the release of Lolita.
Activists say they have a plan to move Lolita from Miami to a privately owned cove at San Juan Island in Washington. There, Lolita could be rehabilitated from captivity and taught to forage for her own food, says Goodman.
The activists admit Lolita might never survive a release in the open ocean for a number of reasons.
Keiko, from the movie "Free Willy," died only three years after being returned to the ocean.
Miami Seaquarium says Lolita's is not going anywhere.
"Lolita has been part of the Miami Seaquarium family for 44 years," says Robert Rose, Miami Seaquarium Curator.
"Lolita is healthy and thriving in her home, where she shares her habitat with Pacific white-sided dolphins," who perform two shows daily says the curator.
Rose and NOAA say the endangered designation does not required the killer whale to be released back into the wild. Plus any such movement of a killer whale would need a NOAA Fishery permit and extensive review.
"We are going to do everything to protect her (Lolita)," said the PETA attorney. That would include suing anyone who harms the endangered killer whale. What constitutes harm could ultimately be decided by a federal judge.
Miami Seaquarium is one of the oldest marine parks in the United States, and activists say Lolita's habitat is not big enough. They are suing the federal government for not enforcing the minimum size requirement. But the USDA tells the Seaquarium that the park exceeds minimum size requirements for the pool.
PETA says even if Lolita can't be rehabilitated to return to the wild, the Washington state cove is much larger and her former killer whale pods will swim by her open water habitat.
The Miami Seaquarium curator says there's no proof Lolita could survive in such a habitat.
"It would be reckless to treat her life as an experiment and jeopardize her health and safety."