The orca Lolita has lived in captivity and performed three times a day at the Miami Seaquarium for more than 44 years. During that time, she has been swimming in circles in a tank that has become the subject of increasing public scrutiny. Animal rights activists have for years alleged that the tank fails to meet the minimum size requirements outlined by the Animal Welfare Act (AWA) for an animal her size. The Seaquarium has been allowed to operate on the grounds that a waiver of those requirements is in effect. The activists, however, argue that the law does not allow for any such waivers.

During a hearing next week in federal appeals court, the activists hope that a panel of judges will let the case move forward and that it might ultimately lead to the Seaquarium's license being revoked.

In 2012, the Animal Legal Defense Fund (ALDF), the People for the Ethical Treatment of Animals (PETA), and the Orca Network filed a lawsuit against the U.S. Department of Agriculture (USDA) alleging that the agency was wrong to perpetually renew the Seaquarium's license to display Lolita, because the Seaquarium violated at least three AWA regulations. Not only was her tank too small, they contended, but she had no companion and was not protected from the sun.

The Seaquarium has argued that it meets the minimum standards of the AWA because Lolita is placed with dolphins, gets slathered in sunscreen, and has a tank big enough due to the waiver.

But Judge Joan Lenard dismissed the case, saying it came down to a legal interpretation of the way the license-renewal rules were written. The USDA would be obligated to renew a previously issued license so long as the licensee followed three requirements: paid a renewal fee, reported how many animals it had in captivity, and signed off that "to the best of its knowledge and belief, [the exhibitor] is in compliance with the regulations and standards and agrees to continue to comply with the regulations and standards."

The three animal rights groups argued that her line of reasoning is absurd and does not allow for the situation to be remedied and for animals to receive the humane treatment the AWA was intended to ensure. They appealed to the 11th Circuit Court of Appeals. A hearing is scheduled for Tuesday, March 24, at the James Lawrence King Federal Justice Building in downtown Miami.

In addition to the lawsuit, government documents recently submitted to New Times provide an interesting illumination of whether Lolita's tank is indeed too small.

Whether Lolita's tank is compliant depends on how authorities interpret the measurements of the pool.

The law requires that an orca's tank have Minimum Horizontal Dimension (MHD) of at least 48 feet (twice the length of the largest orca specimen). That is to say, the diameter of the largest circle that could be inserted within the confines of the pool must meet this measurement. However, animal rights activists condemn even the required MHD because in the wild, orcas swim up to 100 miles per day.

In Lolita's enclosure, there is an island in the middle of the tank — a platform where entertainers perform their show. Ignoring the island, the pool has an MHD of 60 feet and would meet requirements. However, if one measures from the edge of the pool to the island, the MHD would not be big enough.

Government documents show that on July 1, 1993, Dr. Kristina Cox, who inspected the tank, grappled with this issue. On July 1, 1993, she wrote: "The question to be answered is how this island relates to space requirements; does it interfere significantly enough to make the pool non-compliant?"

In 1995, Cox reinspected Lolita's enclosure after further scrutiny of the tank was raised by the public. She then submitted a report on her findings to be validated by her superiors. In her report, she makes an official note that, "Assuming the 1988 APHIS waiver [of the work island] is still applicable, the stadium pool has an MHD of 60 ft. Orcas require an MHD of at least 48 ft. [However], if the work station were to be judged an obstruction to MHD, the MHD would be 35 ft. Applying the 20% reduction rule could allow an MHD of 38.5 ft., which is still short. The pool has an MHD of 35 ft. without a waiver, and 60 ft. with a valid waiver. (The 20 percent rule is to make up for corners in a square-shaped tank, but since her tank is oval-shaped it does not properly apply)."

In 1988, a Dr. Richard Crawford, a senior staff veterinarian for APHIS, had decided that because the other measurements (horizontal space, depth, and volume) exceeded minimums, the Seaquarium could get a waiver for the work island when it came to calculations.

This line of thought was again in 1995, when Dale F. Schwindaman, the deputy administer of regulatory enforcement for APHIS at the time, affirmed Crawford's opinion after Cox submitted her report. Schwindaman wrote to George Boucher, then president of the Miami Seaquarium, that "Although the solid base of the work station appears to interfere with an unobstructed Minimum Horizontal Dimension (MHD)... APHIS reaffirms the validity of the waiver granted in 1988...."

According to some activists, this waiver suggests that officials at the Miami Seaquarium believe her tank is compliant with the law because its administrative staff signs off each year that its facilities meet the standards of the AWA when they register for a license renewal.

Animal rights activist Russ Rector says that the law does not allow for a violation to be covered by such a "waiver" and that APHIS officials let their own opinion supersede Congressional law. Since Lolita's tank has to meet or exceed the minimum MHD of 48 feet to be compliant, the work island was excluded by the officials in calculations. According to AWA, "when it comes to determining the minimum space required in a pool holding cetaceans, four factors must be satisfied: MHD, depth, volume and surface area."

Rector, who is based in South Florida, was a key figure in bringing to light violations committed by Ocean World, which played a significant role in the marine park's closing in 1994. He is also the individual who brought these government documents to light with New Times and pointed out the specifics regarding the waiver.

Matt Liebman, an attorney with the ALDF, substantiates Rector's claims: “There is not a general waiver provision in the AWA that permits APHIS to pick and choose which parts of the statute to enforce or that allows the agency to disregard the work island from an unobstructed MHD. [Since] there is no provision in the AWA or its implementing regulations, it would be unlawful for APHIS to waive the Act's requirements."

Liebman believes the concrete work station is an obstruction because Lolita cannot swim through it. He also contends that by waiving it the Act's required measurements become meaningless.

At Tuesday's hearing, a panel of judges will decide whether the lawsuit should be reheard by the trial judge. More than 100 protesters are expected at the hearing.

Rector says that if the Seaquarium is finally called out, "Under the regulations, the [marine park] would have 30 days to get Lolita into a compliant situation." If the Seaquarium cannot comply in 30 days, Rector says it would have to request an extension regarding how much time it will take to build her a compliant tank. He has fought APHIS and Seaquarium for decades regarding animal welfare and concludes that APHIS officials "may have excluded the work island in measurements but you cannot exclude it in reality, where Lolita lives. There is no mechanism in the AWA to waiver a violation, especially when it comes to the critical amount of living space. That's why it's called the Minimum Horizontal Dimension."

Rector believes that Lolita's substandard situation may not be remedied through the lawsuit and has made a call to action for animal rights activists to demand APHIS be called into a Congressional oversight committee to explain how Lolita's tank is compliant under points of law and not under a "nonexistent" waiver.