Lolita, the killer whale captured in 1970 off Whidbey Island and sold to an aquarium in Miami, could be up for Endangered Species Act protection, the federal government announced yesterday.

The feds say they’ll come to a conclusion within nine months on whether the whale should be covered by the most stringent wildlife law in the land, with the bureaucratic statement that the petition to get her protected “could have merit.” If they decide the affirmative, wildlife advocates say Lolita has a fighting chance of returning to Puget Sound waters.

But as it’s long been, the question is: Can Lolita make it in the wild after more than 40 years in captivity?

Advocates say yes. “There is a retirement plan in place to send her back to her waters,” says Jenni James with the Animal Legal Defense Fund. “It’s a process. You monitor the animal to see if it looks like they are going to be able to return.”

James says Lolita’s mother is still alive, a stately octogenarian still living in Puget Sound. Lolita is most likely in her late 40s, considered middle-aged for whales in the wild but quite old for whales in captivity. The fact that her mother and other members of her pod are still alive, and that she’s maintained the same call she had when put in captivity, means “She has the best chance to be reunited with her family than any other whale in captivity,” James says.

Lolita has long been a marquee case in the fight against captive whales. Her capture, and that of 11 other whales, was caught on tape, and became a driving force in Washington’s ban on the practice. In the 1990s, Gov. Mike Lowry called for her release.

Even back then, there was plenty of skepticism over whether Lolita could make it outside captivity after all these years: “The best they can do for Lolita is leave her in Miami, lend her the occasional stud whale from Sea World, and–when she finally passes away–retire her aquarium tank forever,” Carl Hiassen wrote in The

Miami Herald in 1995, referring to Lolita at one point as an “old girl.”

But 18 years later, Lolita is still kicking. James says even if Lolita proves to be unfit for wild living, being granted endangered status (which her pod in the wild has been granted) would mean an end to her stay at the Seaquarium in Miami.

“I don’t see how their tiny tank can conform to the stands of the ESA,” she says.