Exclusive Op-Ed: SeaWorld Appeals Ruling in Trainer's Death

Will the world's largest marine mammal entertainment conglomerate prevail in federal court?

An unidentified trainer at SeaWorld Florida, LLC pets the back of a killer whale (Photo: Courtesy of David Kirby)
David Kirby has been a professional journalist for 25 years. His third book, 'Death at Seaworld,' was published in 2012.

David Kirby is author of Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity. He will be a guest on the Sam Simon Show (Simon is a co-creator of The Simpsons and a leading animal rights activist) at 4PM EDT, on Friday, September 21, 2012. Listen here

SeaWorld has filed an appeal in federal court in the death of Orlando trainer Dawn Brancheau, even as there are reports that it isn't complying with the ruling it seeks to overturn.

SeaWorld filed the petition in the U.S. Court of Appeals for the District of Columbia Circuit earlier this month. But the company appears to be defying the lower court ruling that called on trainers to maintain a minimal distance, behind protective barriers, when working with killer whales during shows.

Recent visitors to Orlando confirm that trainers continue to hug, kiss, caress and stay in extremely close contact with killer whales onstage and in the "slide-out" area at Shamu Stadium.

MORE: Op-Ed: SeaWorld's Convoluted Logic on Taiji's Dolphin Slaughter

On May 31, federal administrative law judge Ken Welsch handed down a remarkably harsh ruling against SeaWorld, which had sued the U.S. Department of Labor in a vain attempt to overturn a violation issued by the Occupational Safety and Health Administration in the 2010 killing of Brancheau by the 12,000-pound orca bull Tilikum.

And though Welsch reduced the OSHA violation from "willful" to "serious," he upheld the safety abatements and ruled that "using physical barriers and minimum distances eliminate the trainers' exposure to the recognized hazard of working with killer whales."

The judge ordered SeaWorld to bar trainers from coming in close contact with orcas during the show—and not just Tilikum, who has now been involved in the deaths of three people.

The only way that SeaWorld could legally maintain close contact with orcas during its shows, Welsch wrote, would be by installing "decking systems (fast-rising pool bottoms), oxygen supply systems or other engineering or administrative controls that provide the same or a greater level of protection for the trainers."

SeaWorld Florida has installed a decking system in one of its back pools (where two people have died in the water with Tilikum), though unprotected contact with killer whales still occurs in the main show tank, and trainers are not equipped with emergency oxygen supplies, as far as I know.

SeaWorld, which sorely wants to get trainers back in the water with killer whales during performances, filed an appeal against the OSHA violation and safety measures at the Labor Department's Occupational Safety and Health Review Commission (OSHRC) in July. But that panel refused to review the case, leaving SeaWorld with a deadline of August 6 to certify its compliance with the safety measures.

SeaWorld then filed a petition with the Department of Labor asking for a six-month extension on the required safety abatements, so it could seek "definitive guidance about the meaning of 'physical barrier' (and) 'minimum distance.' "

Both OSHA and U.S. Labor Secretary Hilda Solis objected to SeaWorld's petition—the question of granting a six-month delay was sent back to Judge Welsch for review.

Meanwhile, an OSHRC spokesman told me, "The Judge's ruling stands." It is now up to OSHA to decide whether to enforce his order or not.

I asked company spokesman Fred Jacobs if SeaWorld was in compliance with Judge Welsch's ruling. He mentioned the petition for extending the now-passed deadline and said that, "Because that matter remains the subject of active litigation it would be inappropriate to comment further."

OSHA officials declined to comment on SeaWorld's apparent defiance of OSHA's violation and abatement mandates, and whether the agency will send investigators to SeaWorld to enforce compliance.

 
(Photo: Courtesy of David Kirby)

Back at the federal appeals court, SeaWorld will now file a brief on why it feels aggrieved by Welsch's ruling, and it may seek an injunction against the abatements. OSHA will likewise file a brief, and could seek reinstatement of its original "willful" violation—the most serious sanction of all.

Meanwhile, I wonder how Judge Welsch feels about the continued defiance of his ruling and the close contact between trainers and whales at SeaWorld. The practice clearly concerned him at trial, and in his lengthy decision. 

Some orcas, he wrote, had "pulled trainers into the water during (poolside) drywork," and engaged in "unpredictable behavior, including seizing trainers with their mouths, holding the trainers under water, and ramming the trainers while in the water."

As for SeaWorld's claim that it "did not recognize the hazard posed by working in close contact with killer whales," Welsch balked: "The court finds this implausible." He added that, "No reasonable person reading these comments" would agree with them.

Will SeaWorld continue to ignore Welsch's orders? Will OSHA crack down on the apparent scofflaw? Will the world's largest marine mammal entertainment conglomerate prevail in federal appeals court?

Stay tuned—this drama has more chapters to come.

Should killer whales be held against their will in cramped tanks, like those found at SeaWorld? Tell us in the comments.

These are solely the author's opinions and do not represent those of TakePart, LLC or its affiliates.

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