Attorneys for SeaWorld are currently in settlement negotiations with officials at the Occupational Safety and Health Administration (OSHA) in the latest step of a prolonged legal drama that started when trainer Dawn Brancheau was killed by the orca Tilikum just over three years ago in Orlando.
Any time a killer whale can actually make contact with you, you are not safe. It is complete arrogance on SeaWorld’s part to suggest otherwise.
TakePart has confirmed with a Labor Department spokesman that mediation talks are underway. The precise subject matter of the discussions was not disclosed, but a source close to the case—and documents obtained via the Freedom of Information Act—indicate that SeaWorld wants to keep trainers in contact with the whales during certain “Shamu” show segments, even though it was declared a safety hazard and forbidden by OSHA in a citation issued by that agency that was upheld by a federal judge and a Labor Department commission in late spring, 2012.
The talks are part of a “voluntary mediation program” at the U.S. Court of Appeals for the District of Columbia, where SeaWorld is fighting OSHA’s efforts to keep trainers at a safe distance, away from the killer whales.
“As a result of this mediation, it appears that the parties may have found a way to come to an agreement disposing of all issues in the case,” according to a document filed with the court on December 20, 2012. “Working out the precise terms of the settlement, though, will likely take at least a month.”
Clearly, it is taking longer than that.
The wrangling between SeaWorld and federal investigators began almost immediately after Brancheau’s death, on February 24, 2010, when Tilikum, a 12,000-pound breeding bull, grabbed the trainer from a shallow ledge, rammed her repeatedly in the water, and refused to relinquish her body for nearly an hour.
SeaWorld immediately pulled staff out of the killer whale pools, in what it called a temporary halt to “water work,” where trainers swim with, ride upon, and rocket from the powerful predators. The company vowed to resume water work in the near future.
But SeaWorld still allowed its trainers to keep in close contact with the whales—except Tilikum—during “dry work,” which is typically performed on stage or in special “slide out” areas, where trainers embrace, kiss and caress the animals.
It’s a big crowd-pleaser. Without water work, hugs and cuddles are the only close interaction that trainers have with orcas during the entire show. Take that away, and the humans have very little to do.
But OSHA is in the business of safety, not show. OSHA Chief inspector Lara Padgett issued a citation for SeaWorld’s “willfull” violations, writing that trainers were “exposed to struck-by and drowning hazards in that they were allowed to engage in ‘waterwork’ or ‘drywork,’ ” without proper protection.
The OSHA citation said it was “feasible and acceptable” to prohibit both water work and dry work, “unless the trainers are protected through the use of physical barriers” and other safety abatements.
At the time, the Administration trumpeted the citation as a solid victory for worker safety, asserting that even the dangers of orca dry work would no longer be tolerated.
“SeaWorld recognized the inherent risk,” OSHA regional administrator Cindy Coe told the media. “Nonetheless, it required its employees to work within the pool walls, on ledges and on shelves where they were subject to dangerous behavior by the animals.” The result was an “extensive history” of unexpected, perilous incidents, which SeaWorld had failed to adequately address.
And Les Grove, OSHA’s area director in Tampa, warned that SeaWorld and similar venues would have to “minimize human-animal interaction if there is no safe way to reliably predict animal behavior under all conditions.”
But SeaWorld had no desire to “minimize human-animal interaction.” The company took OSHA to court in September 2011, suing to overturn the citation and vacate the safety mandates, including the ban on physical contact with orcas. It also announced the development of fast-rising pool bottoms, “spare-air” emergency systems and other high-tech measures which, it claimed, would permit the resumption of water work.
Last May, Administrative Law Judge Ken Welsch ruled flatly against SeaWorld. He affirmed OSHA’s ban on water work and close contact during dry work—though he did downgrade the violation from “willful” to “serious.”
Welsch ordered SeaWorld to comply with OSHA’s safety abatements and, “either install physical barriers between its trainers and killer whales, or require its trainers to maintain a minimum distance from the killer whales.” He called the measures technically and economically feasible.
“Prohibiting waterwork and using physical barriers and minimum distances eliminate the trainers’ exposure to the recognized hazard of working with killer whales,” Welsch wrote. “Proximity to the killer whales is the factor that determines the risk to the trainers.”
Welsch mentioned cases “where killer whales seized trainers during waterwork or pulled trainers into the water during drywork,” and where “the injured or deceased trainer was not recovered until the killer whale decided to release the trainer.”
It was a major blow, but SeaWorld vowed to continue fighting.
Last June the company requested a review at the Labor Department’s Occupational Safety and Health Commission, but was declined. In September, it filed an appeal at the Federal Court of Appeals in the District of Columbia, and these mediation talks arose from that appeal.
Meanwhile, SeaWorld continued to allow trainers to be in extremely close contact with its orcas, at least in Florida, as documented in many photographs, YouTube videos, and an Orlando TV newscast.
Attorneys for the company also wrote to OSHA last July, asking for more time, and more details on how to abate the safety hazards of dry work. SeaWorld had already begun the process, said the letter, obtained via FOIA, including “establishing variable distances between trainers and animals, establishing positioning protocols relative to the animals and enhancing spotter protocols.”
Despite these precautions, “SeaWorld requires additional guidance concerning the proper means to abate the (alleged) hazard,” the letter said. SeaWorld could not certify abatement “at this time,” and sought “clarification” on “what might constitute an appropriate ‘physical barrier,’ ‘minimum distance,’ ” or other means of protection.
Which brings us back to the current mediation talks.
“OSHA has a new legal team on this case,” said Dr. David Duffus, associate professor at the University of Victoria, founding director of its Whale Research Lab, and the government’s expert witness at the Brancheau trial, to TakePart. “They are looking to talk with me. It suggests to me they are going to negotiate the abatements.”
It’s possible SeaWorld will agree to a ban on water work, in exchange for trainers being able to get close to the whales, at least in some situations.
Such a move, if true, would surprise Duffus. “The government’s position was strong,” he said. “I hope OSHA won’t give any leeway on this. If they do, they will really be compromising trainer safety. Any time a killer whale can actually make contact with you, you are not safe. It is complete arrogance on SeaWorld’s part to suggest otherwise.”
Duffus said dry work could be dangerous because it was part of an orca’s “behavioral repertoire” to consider something onshore as fair game for prey. Some orcas in the Southern Hemisphere slide up on the beach, much like “Shamu” at SeaWorld’s slideout, to snag seals or sea lions. Others chase rays right out of the water.
Duffus also headed up the British Columbia Coroner’s inquest into the 1991 death of orca trainer Keltie Byrne at SeaLand of the Pacific, outside Victoria. Byrne’s foot had slipped into the water and she was dragged under by none other than Tilikum—who was then sold to SeaWorld Orlando the following year.
The safety logs at SeaWorld are marked with several incidents where orcas lunged from the water at trainers, or even pulled them in from the pool’s edge. Some were caught on camera.
Early last decade, the female orca Ku lunged at a trainer at the Port of Nagoya Aquarium in Japan. In 2008 at SeaWorld San Antonio, the female Takara hit a trainer with her tail fluke, smacking her off the slide-out. And, last July at Six Flags Discovery Kingdom in Vallejo, California, the female Shouka lunged out of the water at a trainer.
A far more serious attack, also caught on video and featured in the upcoming documentary Blackfish, involved the female Orkid and male Splash at SeaWorld San Diego in 2002. A trainer known as Tamarie was doing poolside work when Orkid pulled her into the water. She was later taken to a local hospital, where a pin was put in her broken arm.
A similar event happened at the now defunct SeaWorld Ohio in 1997 when the female Winnie grabbed trainer Kristin McMahon-Van Oss by the sweatshirt and pulled her into the water.
The list of dry-work incidents goes on, including:
1) 1974—Windsor Safari Park, England—The male Ramu lunged from the water and attempted to pull trainer Doug Cartlidge from the training platform.
2) 1986—Marineland, Ontario, Canada—Female Nootka V whacked one trainer in the head with a pectoral fin during a trick. Another former trainer said Nootka often leapt from the water to strike nearby trainers in the chest.
3) 1989 – SeaLand of the Pacific, BC, Canada—Female Nootka IV closed her mouth on the hand of trainer Henriette Huber. The trainer, who was scratching the whale’s tongue, fell into the pool, and also required stitches to close the puncture wound.
4) 1989—SeaLand of the Pacific, BC, Canada—Nootka IV grabbed a tourist’s camera and, when head trainer Steve Huxter grabbed the strap, he was pulled into the pool. Nootka held his leg as he was pulled out by trainer Eric Walters.
5) 1997—SeaWorld San Diego—Male Ulises lunged out of the water at a trainer.
6) 1999—SeaWorld San Diego—Female Takara lunged at a trainer on the edge of the pool.
7) 2004—SeaWorld San Antonio—Female Kayla lunged at her trainer, although no contact occurred. After several minutes, she was separated into the back pool.
8) 2006—SeaWorld San Antonio—Kayla lunged at a trainer with her mouth open, contacting him and throwing him several feet.
9) 2006—SeaWorld San Antonio—Kayla lunged at a trainer trying to feed her, knocking a bucket off the wall.
10) 2008—SeaWorld San Diego—Kasatka came out of the water at a trainer in two separate incidents.
During the 2011 OSHA trial, Dr. Duffus testified that all SeaWorld trainers should remain behind barriers that are three feet high and three feet wide, to maintain a safe distance from the orcas. It appears that SeaWorld disagrees, and wants to maintain at least some physical contact between trainers and whales during shows.
But if SeaWorld allows trainers to get near whales during dry work (remember, Brancheau was technically doing dry work on a shallow ledge when Tilikum grabbed her and pulled her into deeper water), many experts fear, it will be putting employees at risk once again.
“This is the second death report I have worked on, and they are two decades apart,” Duffus said. “And all we hear is SeaWorld claiming about how much they know now, and how much they’ve learned about improving trainer safety. But clearly, they have not learned much.”
If the government backpedals on the OSHA abatements and lets physical contact with killer whales continue, “somebody will get hurt again,” Duffus said. “I’m surprised this hasn’t happened with more frequency and severity. They got lucky.”
For now, Duffus added, “It’s only a matter of time before there’s another severe injury. And with killer whales, it doesn’t take much to turn an injury into a death.”