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Lolita performing at Miami Seaquarium. Photo: Piotr Domaradzki via Wikimedia Commons.[/caption] The Miami Seaquarium won an appellate battle in animal rights activists' quest to have the orca Lolita moved to a West Coast seaside sanctuary. The U.S. Court of Appeals for the Eleventh Circuit on Friday affirmed the dismissal of a lawsuit against Seaquarium, finding Lolita's conditions do not amount to "serious" harm or harassment under the Endangered Species Act. Lead plaintiff People for the Ethical Treatment of Animals claimed the Seaquarium violated the law by confining the 8,000-pound whale to a "small, shallow, and barren concrete tank, without adequate protection from the sun, without an orca companion, and with incompatible animals, and forc[ing] her to perform multiple times daily." But the appellate panel found those allegations don't fall under the Endangered Species Act because they do not meet the "serious" harm or harassment standard. Instead, they fall under Animal Welfare Act regulations, meaning federal agencies would determine whether the Seaquarium is in compliance. PETA interpreted the Endangered Species Act's references to harm and harassment so broadly as to "effectively nullify" the Animal Welfare Act when it comes to captive endangered animals, the court ruled. "Accounting only for the dictionary definitions of 'harm' and 'harass' would bring [minor] annoyances to endangered animals that bear no reasonable relationship to extinction within the ESA’s coverage — a result inconsistent with its purpose," ruled Eleventh Circuit Judges Susan Black and Frank Hull and visiting U.S. Court of International Trade Judge Jane Restani. The panel affirmed the bulk of U.S. District Judge Ursula Ungaro's June 2016 summary judgment order but disagreed with her finding that harm or harassment is only actionable under the Endangered Species Act when deadly. In a statement, PETA took issue with the court's decision because it "did not analyze the plaintiffs' expert evidence or define what constitutes 'serious' harm." "This ruling sentences this highly intelligent, deeply lonely and distressed orca to a lifetime of physical and psychological harm, confined to a tiny concrete cell without family, friends, or freedom," said PETA Foundation director of animal law Jared Goodman. "It ignores today's understanding of how confined orcas suffer beyond imagination in captivity, and PETA is considering the options for further review." Joining PETA on the case were the Animal Legal Defense Fund, the Orca Network and orca researcher Howard Garrett. The appeal was argued by Harvard Law School animal law and policy fellow Delcianna Winders for PETA, and Greenberg Traurig shareholder Elliot Scherker for the Miami Seaquarium. Neither Scherker nor the Seaquarium immediately responded to requests for comment.