For sixteen months, I quit blogging while I worked on a project to remove Kiska, Canada’s lone orca, from MarineLand. I won’t be discussing any details because I’m still under a nondisclosure agreement, but I will share two things. It wasn’t with the Whale Sanctuary Project nor any of its affiliates, and we were making significant progress with the park. And then Kiska died.

After her death, I started the blog back up and thought I’d work on a couple of posts then walk away for a few months, or years while I coped with my medical issues, but I’ve found the research and the writing to be quite cathartic. I learned one important thing in the last few months through the death of Kiska and the discovery of multiple varieties of cancer within my body. You may feel that you have all the time in the world, that you or an orca can live forever. But the reality is that time is the one constant – the one enemy – that you’re always fighting.

This blog post, and the last few, have been collaborative efforts. Many people – some are animal rights advocates, some are marine life park professionals, some are citizen journalists – have contributed in varying ways. Some I don’t even know who they are as they’ve shared material with another collaborator who shared it with me, the old “friend of a friend” scenario. You will meet some of my collaborators over the coming months.

All third-party material – including published documents and images – have been fully vetted. Photographs either have been approved for publication by the rights owner or are being used under the fair use doctrine. All images and quoted text are being provided for not-for-profit educational purposes only (I don’t make a cent off this blog). We have blacked out the faces of trainers, veterinarians and others appearing in these photos, even if these photos have appeared elsewhere online. We’re not a-holes. These people are doing their jobs. They don’t need to be identified and harassed.

Let’s begin the ride, but be forewarned. I will be going to dark places.

How to counter an established policy

On April 8, 2023, Jim Irsay tweeted the above photo with the caption “Lolita is chillin’ out . . . .” The tweet has since been deleted, but that hasn’t stopped the photo from making the rounds on social media. I’m including it here for a single reason. In the photo, which appears to be staged, two trainers in wetsuits can be seen on what I like to call “portable floating platforms,” a way of bypassing OSHA prohibitions because they’re technically not immersed in the water, meaning they’re not doing waterwork. OSHA, in its 2010 citation against SeaWorld defined “dry work” as taking place “on pool ledges, slideouts and platforms.” That’s what’s happening here. They’re on platforms. And they’re wearing wetsuits. And in front of them is a yellow and black wetsuit that Lolita/Tokitae uses as a toy and visible in the B pool behind them is another wetsuit, red and black, that she also uses as a toy.

Why does this matter?

One of Toki’s favorite toys is currently a bit of wetsuit material. This toy is continuing to be utilized for the time being as it may provide an advantageous tool while new activities are introduced, but the long-term plan should be to phase out this particular toy, so it’s current use should not be increased in any of the suggested activities. This is strongly suggested because currently Toki playfully pulls the wetsuit down into the water column, which could be generalized by her in playfully pulling down a wetsuit a diver is wearing. All tug of war behaviors should not be promoted.

– Toki Health and Welfare Report, Friends of Toki, December 13, 2022

. . . . Respondent had Hugo, another killer whale, which attempted to injure trainers on several occasions in 1971. Also, in the 1970s, Hugo continuously pushed Respondent’s trainer Chip Kirk and bit his arm. On another occasion, Hugo grabbed Trainer Jeff Pulaski and then both Hugo and Lolita tore his wetsuit from him. Anthony G. Toran, Respondent’s administrative director at the time, and Trainers Kirk and Pulaski have knowledge of this behavior.

– Secretary of Labor v Marine Exhibition Corporation, OSHRC Docket 14-1323 Region IV, November 17, 2014.

20 seconds to Midnight

The Doomsday Clock was created in 1947 by the Bulletin of the Atomic Scientists to show how close humanity is in a given year to nuclear annihilation. In 1963, one year before the opening of the first SeaWorld park, the clock was set at 12 minutes to Midnight; 1969, the year Corky was captured and one year before the capture of Lolita/Tokitae, 10 minutes; 1980, the year Hugo died, 7 minutes; 2015, the first complete year of Seaquarium ownership under Palace Entertainment, 3 minutes; 2022, when ownership changed to The Dolphin Company, 100 seconds to Midnight.

Toki does not have 100 seconds. We estimate on the great scale of the Doomsday Clock, the risk to ending her life is closer to 20 seconds. Her enemy is not The Dolphin Company, nor Friends of Toki, nor the Lummi Nation. It is time.

In our last blog post, we showed how Miami-Dade County issued a repair or demolish order on the whale bowl. There are two important factors to take into consideration that were not mentioned in that post.

First, there were two visits in 2021 by the engineer contracted by the Unsafe Structures Board. The one that took place in March was the mandated building inspection that takes place every forty years. A follow-up inspection took place on August 16, which by coincidence was two days prior to the announcement that The Dolphin Company would take over the Seaquarium lease from Palace. This second inspection was in response to the condominium collapse that took place in June in Surfside. The county ordered reinspection of a number of structures. The engineer’s report stated that the grandstands were safe for occupancy, though a passageway for entering and exiting the stadium would need to remain closed.

The Seaquarium’s veterinarians argued that any repair or demolition work would be “disruptive” to Toki (never mind that the installation of the wood and scaffolding shorings required for staff to enter and leave the pool area apparently was not). During this time, the structure around the tank continued to deteriorate, to the point that a year and a half after use of the grandstands had been approved, the maximum occupancy for the Whale Bowl was reduced to only 10 people. The grandstands were sealed off with a chain link fence.

Second, the tank itself was never inspected by the county. The county was told that the only way they would be able to examine it would be for the water level to be lowered, but that would be, again, “disruptive” to the whale.

In early October 2022, Toki experienced another health event appearing more serious than preceding episodes. This time she presented with gastrointestinal signs as well as a complete loss of appetite. This situation made it virtually impossible to adequately provide medical treatments. A rare pool drop was undertaken in order to reestablish therapy. Toki and her training staff managed this situation efficiently with minimal stress. This approach was continued for a week and discontinued when her lab test results began to improve, and her appetite returned.

– Toki Health and Welfare Report, Friends of Toki, December 13, 2022

The Unsafe Structures Board was not made aware of the lowering of B pool for the exams and did not conduct a site visit to inspect the condition of the tank. On deep background, we were able to obtain images from that week, which we present here, again for educational purposes only.

The fact that the paint has chipped, the concrete is spalling, and rebar appears to be exposed is of secondary concern to us. But before I get into that, I want to address two differing sides to the argument of removing Toki from the tank.

On the one side are those who say she’s adverse to change and thus moving her will be an act of killing her. The same argument was used by MarineLand about Kiska in public hearings. With Toki, this argument’s been used for decades.

Let’s talk about Toki’s adversity to change. Toki has lost her one orca companion, a number of lag companions, numerous trainers, quite a few veterinarians, and thousands of cheering crowds in the stands when she stopped doing scheduled performances. And yet, she’s still alive after all that change.

Yes, transporting an animal that’s never been out of its environment poses risks. So does keeping that same animal in a tank surrounded by a condemned structure.

This is a case of emotion overriding logic. Logic says “We must save this animal at any cost.” Emotion says “She can’t be moved because she doesn’t like change.” That’s an excuse. Excuses are used by those who are unable or unwilling to take action and enact the change for the betterment of others. Her chillers and her ozone filtration system, which were marketed as going online in December 2022 are now four to six months behind schedule. Ask yourself if this is the best environment for her.

On the other side of the fence are those who believe she can be moved directly to a sea pen in the healing waters of the Salish Sea. Now I’m not going to take on the Lummi because I respect their spiritual beliefs and connections with the natural world. But this is not a healthy whale. In the 2022 health assessments issued by Friends of Toki, she is referred to as “clinically stable.” In the 2023 reports, the term used is “relatively stable.” The difference? “Clinically stable” is also a legal term implying that the patient is stable enough for discharge. “Relatively stable” is not. She is not referred to as being in fine condition, good condition, or even just plain healthy. She needs time to heal and, while it is idyllic to consider that her birth waters will cure her, we have to consider that we may not know the full extent of her health issues. I asked a wildlife veterinarian to look over each of the health and wellness updates issued by Friends of Toki. The analysis was that the 2022 reports were much better than those issued in 2023. She said that it’s impossible to make a determination on the whale’s health based on the vague details in the reports. More data is needed.

That data will be looked at by NOAA and the USDA and other federal and state agencies. Because of the unique situation, the Marine Mammal Commission may become involved as well. This is not something that will happen overnight. This is a multi-year process. It took 746 days (just over two years) from when NOAA received the petition to include Toki on the Southern Resident ESA listing to the day of its final approval, and that didn’t involve relocating her into waters inhabited by an at-risk population. Unless the President’s a Colts fan, we don’t see permitting within the 6-9 months that Irsay has stated nor the 12-18 months given by The Dolphin Company and Friends of Lolita. 12-18 months is too long to keep her in that pool. So is 6-9 months.

In just a few weeks, hurricane season starts. Buildings in Miami-Dade county are required to withstand winds of up to 146 mph. We doubt that the building surrounding the tank is up to code. The structure is not in the same shape it was five years ago. It has been allowed to deteriorate the past few years and now it is condemned. The roof or the billboard could easily collapse and hit her. The shorings used for staff to enter and exit the stadium are not hurricane rated and must be dismantled before a storm with strong winds hits. If not, plywood and scaffolding could fly into the tank.

It’s a craps game. Sure, we’ll have an El Nino, which will reduce the number of tropical storms and hurricanes this season, but it takes only one. You can risk her life in the equivalent of what’s essentially a surrounding gauntlet made of rusting metal and plywood or you can do the right thing.

My collaborators and I are not against moving her to a sea pen in the Salish Sea, nor are we against an eventual return to autonomy in the ocean if it’s deemed appropriate. We’re not asking that Sacred Sea, Friends of Toki, or The Dolphin Company recuse themselves or be removed from the project. We ask only one thing.

She needs to be moved to a temporary rehabilitation facility, where she and her caretakers can be safe, where she can swim in a clean environment, where there’s a medical pool with a scale and a lift so proper examinations can be conducted. We have identified three facilities in the United States where she and the lags can be housed. The G pools at SeaWorld Orlando and SeaWorld San Diego can be physically sealed off from the other orca tanks. This was done with the rescued pilot whales housed there just a few years ago. Six Flags Discovery Kingdom has a four tank facility currently used for upcharge experiences with dolphins. It is the facility that housed Shouka and the main tank is larger than the Whale Bowl.

Yes, there will be hate and some people will feel betrayed. But this is where I’m going to play the Naomi Rose card. In the 1990s, Naomi created an “animal ideology spectrum” which placed “animal protection” between “animal welfare” on one side and “animal rights” on the other. The concept of animal protectionism is about doing practices that are humane and eliminating those that are not. Say what you will of her. I know there are differing opinions. But in this case, I agree with the spectrum. Keeping Toki in that pool is inhumane. This is about protection – protecting her, the lags, their trainers, and the veterinary staff. This is an opportunity to rescue her.

Will SeaWorld or Six Flags step up? Will Friends of Toki approach them? We’ll see.

There is another option, but time is again the enemy. That is to build an entirely new temporary tank for her, where she can recuperate until such time as the permits clear to move her to Washington. I made such a proposal on the ThemedReality Facebook page. I understand that a former trainer took that and elaborated upon it and submitted it to Jim Irsay, who forwarded it to Pritam Singh and Charles Vinick. If the decision’s made not to do this and she dies in the Whale Bowl, keep in mind that, including this post, Friends of Toki was notified three times of how to build a tank.

We don’t know what’s going on behind the scenes. For an organization that uses the word “transparent” often, there is a surprising lack of transparency. Perhaps Jim Irsay is planning on building a tank at the Indianapolis Zoo (one of my favorite zoos, by the way). Or maybe he’s asked the US Senator from Indiana, Todd Young (they know each other), who sits on the Commerce Committee to persuade the Secretary of Commerce to expedite the process or execute a special order. Or he could use any of his other big connections – my family’s from Delaware and most Delawarians (sp?) are either Eagles or Ravens fans. A few still follow the Colts. Who knows what loyalties lie in the hearts of octogenarian Presidents.

And time is not an ever flowing river. There are many hurdles to overcome. Regardless of whether permitting is expedited or it takes years, all it takes is one lawsuit to hold things up.

This last part is for Pritam Singh and Charles Vinick.

The closest facility to move her to is Orlando. If she dies in transit to Orlando, Friends of Toki and The Dolphin Company will have saved themselves the trouble of her dying on a more expensive transport to Washington.

If you’re not inclined to move Lolita/Tokitae/Sk’aliCh’elh-tenaut to a temporary facility to continue her rehabilitation while you wait for permits, we ask that you spare her trainers the PTSD they will suffer from returning to the Whale Bowl after a storm to see her floating there, battered and bruised, pierced by rusty metal poles and plywood splinters.

If you have no plans to move her until sea pen permit time, we ask that you kindly consider compassionate euthanasia.

Thank you.