Southern Resident Killer Whales: Questions and Answers on Final Rule to Include Tokitae in ESA Listing: Updated August 2023

August 18, 2023: Statement on the Passing of Tokitae (Lolita) at the Miami Seaquarium

Kim Damon-Randall, director of NOAA Fisheries’ Office of Protected Resources provided the following statement: “All of us at NOAA Fisheries are deeply saddened by the death of Tokitae, also known as Lolita. In the language of the Lummi Nation of the Pacific Northwest, she is Sk’aliCh’elh-tenaut. Her death is a loss for the endangered Southern Resident killer whale population and all of us who deeply care about them. We hope her legacy inspires us all to protect the rest of her family and the wild population in the open waters of the Northwest.”

Who was Tokitae?

Tokitae was a female killer whale (Orcinus orca) from the Southern Resident population who was captured for aquarium display from Penn Cove, Washington State, in 1970. She resided at the Miami Seaquarium in Miami, Florida. The Southern Resident killer whale Distinct Population Segment was listed as endangered under the Endangered Species Act on November 18, 2005. The DPS was defined as “whales from J, K, and L pods, wherever they are found wild, and not including Southern Resident killer whales placed in captivity prior to listing or their captive born progeny.” In 2015, Tokitae was included in the ESA listing of the Southern Resident killer whale DPS. Tokitae spent much of her life on the East Coast of the United States at the Miami Seaquarium. She holds great importance to people in the Pacific Northwest, including the Lummi Nation and everyone else working to recover the endangered Southern Resident killer whale population.

Why did NOAA Fisheries review the petition to revise the endangered listing of Southern Resident killer whales to include Tokitae?

Anyone can petition the Secretary of Interior or Secretary of Commerce to list or delist a species under the ESA. A petition by ­­the People for the Ethical Treatment of Animals Foundation on behalf of the Animal Legal Defense Fund, Orca Network, and several individuals prompted this review. It was submitted to the Secretary of Commerce on January 25, 2013. That petition requested the agency revise the endangered listing of Southern Resident killer whales to remove the exclusion of captive whales from the description of the DPS and include Tokitae in the ESA listing of the Southern Resident killer whale DPS.

What did NOAA Fisheries conclude about the information presented in the petition?

On April 29, 2013, we found that the petition, viewed in the context of information readily available in our files, presented scientific information indicating that the petitioned action may be warranted. The standard for determining whether a petition includes substantial information is if the information presented would lead a reasonable person to believe the measure proposed in the petition may be warranted. The petition presented information about Tokitae’s genetic heritage and consideration of captive individuals under the ESA, which we determined met this standard. We also requested public comments.

What happened after you accepted the petition to include Tokitae in the Southern Resident killer whale distinct population segment?

On January 27, 2014, we published a proposed rule to remove the exclusion of captive whales from the ESA listing. The proposed rule considered information in the July 2013 status review of the Southern Resident killer whale DPS, completed in response to a petition to delist Southern Resident killer whales. We requested comments from the public, governmental agencies, tribes, the scientific community, industry, environmental entities, and other interested parties concerning Tokitae’s genetic heritage and our proposal to remove the exclusion of captive whales from the ESA listing. In addition, we requested peer review of the information about Tokitae in our July 2013 population status review, which we relied upon in our proposed rule.

What does the final rule say?

In the final rule, published on February 10, 2015, NOAA Fisheries found that Tokitae’s captive status, in and of itself, did not preclude her listing under the ESA. Accordingly, we removed the exclusion for captive whales from the regulatory language describing the Southern Resident killer whale DPS. The best available genetic information and sighting history of killer whales supports recognizing Tokitae as a member of the Southern Resident killer whale population.  At the time of her death, Tokitae was no longer excluded from the listed Southern Resident killer whale DPS.

What information supports the conclusion that Tokitae is from the Southern Resident killer whale population?

Taken together, we found that the mitochondrial DNA and microsatellite DNA analyses provided a strong case that Tokitae was a Southern Resident killer whale. The available information regarding the location of Tokitae’s capture and the sighting patterns of different populations of killer whales also support Tokitae’s identification as a Southern Resident killer whale. NOAA Fisheries’ Northwest Fisheries Science Center is engaged in ongoing genetic studies to learn about the mating patterns of the Southern Resident killer whales, historical range and population size, and genetic relationships between different killer whale populations.

What does inclusion in the listed Southern Resident killer whale DPS mean for Tokitae's remains?

By recognizing Tokitae as a member of the endangered Southern Resident killer whale DPS, her remains are protected under the ESA, which prohibits certain activities for ESA-listed species, including:

1. Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce, in the course of a commercial activity
2. Sale or offer for sale in interstate or foreign commerce

How has NOAA Fisheries or U.S. Fish and Wildlife Service addressed captive animals in past ESA-listing decisions?

NOAA Fisheries has identified captive members as part of the ESA-listed unit during listing actions in the past, such as for endangered smalltooth sawfish, Atlantic sturgeon, and five species of foreign sturgeon. Also, based upon the purposes of the ESA and its legislative history, the U.S. Fish and Wildlife Service concluded that the ESA does not allow captive animals to be assigned different legal status from their wild counterparts. Subsequent to the petition regarding Tokitae, the U.S. FWS published a final rule in June 2015 amending the listing status of captive chimpanzees, so that all chimpanzees (wild and captive) would be listed as endangered. The U.S. FWS also published a 12-month finding in June 2013 that delisting the captive members of three listed antelope species was not warranted.

Did the listing decision affect Tokitae’s care at the Miami Seaquarium?

Many commenters on the proposed rule were concerned about Tokitae’s care, including her pool size. Tokitae’s care at the Miami Seaquarium at the time of the final rule was under the purview of the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service, as described in the Animal Welfare Act. Captive care requirements were beyond the scope of our response to the petition; thus, comments pertaining to AWA compliance were not addressed in the final rule.

On March 2, 2022, the Animal and Plant Health Inspection Service issued a new Animal Welfare Act exhibitor’s license to Miami Seaquarium. That license excluded Tokitae from coverage under the AWA, as long as she was kept out of public view. As a result, Tokitae was protected only under the ESA. Since she was collected from the wild 2 years before passage of the Marine Mammal Protection Act, she was considered “pre-Act” and not subject to the Act’s provisions for captive marine mammals. NOAA Fisheries monitored Tokitae’s health and welfare since March 2022, through regular site visits by a NOAA Veterinary Medical Officer in coordination with Miami Seaquarium’s attending veterinarian.

What would NOAA Fisheries have required for the Seaquarium to have moved Tokitae to a net pen or released her to the wild?

At the time of her death, we had not received any proposals upon which to act; therefore, we were unable to evaluate any potential action.

Would Tokitae have survived a move to a net pen or release into the wild? What was NOAA Fisheries’ stance on moving her to a net-pen or releasing her into the wild?

It was uncertain whether Tokitae would have survived a move to a net pen in Puget Sound or release to the wild, given she was more than 50 years old and has long-term medical needs. Moving a large marine mammal such as an adult killer whale carries potential risks to the animal that must need to be evaluated. Placing a captive marine mammal in a net pen, or releasing it to the wild, could involve risks including:

• Disease transmission
• Ability of released animals to adequately forage
• Social disruption
• Behavioral patterns developed in captivity that could affect the behavior of wild animals

These risks, should any marine mammal be proposed for relocation to a net pen or released in the Pacific Northwest, raise concerns about potential harm to the endangered Southern Resident population. As of the 2022, census there are 73 individuals in the population and may still be declining. If we had been presented with a transfer proposal to approve, NOAA Fisheries would have taken into consideration potential impacts to the whales which could hinder recovery of the population.

What can be learned from other reintroduction efforts for killer whales?

Two examples of killer whale reintroduction efforts underscore the challenges of releasing captive animals to the wild and effects of habituation to humans: 

1. The death of Keiko in the North Atlantic in 2003
2. The death of Luna from the Southern Resident population of killer whales in Canada in 2006

Keiko was a poor candidate for release because of his long time in captivity, dependence on human care, advanced age, prolonged lack of contact with other whales, and strong bonds to humans. He was released into the wild off the coast of Iceland, did not integrate with other wild killer whales, and died in a fjord in Norway.

Luna, also known as L98, was a young male from the Southern Resident population observed living alone in the wild in Nootka Sound, British Columbia, Canada, in 2001. A rescue and reintroduction effort was initiated for L98 in 2004, but he died in 2006 from a boat propeller strike. L98’s chronic interactions with humans directly contributed to his death by conditioning him to approach people and vessels, which led to a fatal collision with a tugboat.

In 1996, NOAA Fisheries and the Marine Mammal Stranding Network rescued two long-term captive bottlenose dolphins that were illegally released to the wild from a facility in the Florida Keys. The dolphins had not been properly conditioned for release and were not in their natal waters, so they sought out humans for food and interaction. Both dolphins suffered malnutrition and injuries consistent with vessel collisions, which necessitated an extensive rescue operation and permanent placement at human care facilities.

One case highlights the essential elements for a successful reintroduction. Springer, also known as A73, was successfully reintroduced to her family group in the Northern Resident killer whale population in 2002, after a brief holding and assessment period in a net pen. Springer was young, and she was separated from her family for only a few months. Her handling and rehabilitation was short (30 days), and human interactions were minimized to avoid her dependence on people. These elements, in combination with her health test results and ability to successfully catch live fish, made her a suitable candidate for reintroduction. Other scientific studies of captive dolphin releases found similar factors contributed to success.

Where can I learn more about Southern Resident killer whales?

The killer whale, or orca, is found in all oceans. The Southern Resident killer whale DPS is composed of J, K, and L pods and consists of approximately 73 individuals. These whales are the "resident" type, spending specific periods each year in the San Juan Islands and Puget Sound. Southern Resident killer whales feed mostly on salmon. NOAA Fisheries’ priority remains the protection and recovery of wild Southern Resident killer whales.

Learn more about Southern Resident killer whales, including information on the ESA listing, status reviews, recovery planning, research, and critical habitat.