SeaWorld Fights Government Violation With New ‘Bulldog’ Attorney

Son of Supreme Court Justice Scalia to represent the controversial park as it goes for round five against the OSHA.

seaworld osha lawsuit death
A performance of ‘Shamu’ at SeaWorld Orlando. The marine theme park has been fighting the Occupational Safety and Health Administration since the death of a trainer in 2010. (Photo: David R. Tribble/Wikimedia)
David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

SeaWorld has just pulled out a big legal gun in its ongoing fight against the Obama Administration over trainer safety at the company’s three killer whale stadiums.

Eugene Scalia, the son of U.S. Supreme Court Justice Antonin Scalia, once described as “an absolute bulldog” and Wall Street’s “secret weapon,” will argue SeaWorld’s case against the Occupational Safety and Health Administration (OSHA) before the U.S. Court of Appeals in Washington, D.C. in a battle that began with the death of trainer Dawn Brancheau, killed by the orca Tilikum at SeaWorld Orlando in 2010.

The news was first reported by Mike De Forest at WKMG TV in Orlando. The younger Scalia is a partner in the “powerhouse” L.A. law firm Dunn & Crutcher, and was once the top Labor Department attorney under George W. Bush, making him a formidable opponent for the OSHA.

Dunn & Crutcher has long had a conservative, pro-business, pro-GOP slant to its corporate culture, and is currently controlled by the Blackstone Group, whose cofounder Stephen Schwarzman was a top contributor to Mitt Romney’s 2012 presidential campaign and notoriously compared Obama’s economic policies to those of Adolph Hitler.

SeaWorld needs all the legal firepower it can muster. It has fought the Administration four times over trainer safety, and lost. With Eugene Scalia it is going for round five.

In August of 2010, OSHA hit SeaWorld with a “willful” violation in the Brancheau case, charging that the marine theme park should never have allowed any trainer to come in close contact with Tilikum, as he was already associated with the deaths of two people.

At issue was whether trainers should be barred from swimming in the water with killer whales, performing tricks with them, or being in close proximity to the whales while onstage poolside or in the slideout areas where trainers often hug, kiss, and cuddle the ocean’s top predators.

SeaWorld contested the citation and lost in a federal administrative law court. It then tried to appeal the ruling before a U.S. Labor Department commission, but was denied.

Failing that, SeaWorld filed an appeal at the U.S. Court of Appeals for the District of Columbia, which ordered the company to enter into arbitration with OSHA in order work out guidelines for trainers and killer whales. I wrote about this saga several times, including at TakePart.com:

But the arbitration effort failed too.

Last month, OSHA issued a repeat violation against SeaWorld in the case, and a $38,500 fine—petty cash for SeaWorld but the statutory maximum allowed under law.

In their briefing before the appeals court this time, Scalia and colleagues argued that the entertainment conglomerate “brings profound public educational benefit,” but notes that “Interacting with nature is not without risk—not when mountain climbing or kayaking, not when sailing or swimming in the ocean, not when visiting our national parks. On rare occasions, killer whales can be dangerous. SeaWorld has taken extraordinary measures to control that risk. But it cannot eliminate it while facilitating the interaction between humans and whales that is integral to its mission.”

Barring contact between trainers and whales during shows (the OSHA citation does not cover what goes on backstage), “presents additional hazards to trainers and whales and is tantamount to eliminating trainers’ jobs,” SeaWorld’s lawyers wrote.

One question that quickly jumps to mind is, if they lose this case and SeaWorld appeals to the U.S. Supreme Court, will Antonin Scalia have to recuse himself?

The answer is no. After all, Justice Scalia did not recuse himself in the recent Walmart sex discrimination case, even though his son Eugene had represented that company in previous court cases. However, Dunn & Crutcher has informed the Supreme Court that the younger Scalia would not receive any earnings from cases argued there.

The hearing should be a media-rich barn-burner, especially given the scrutiny currently endured by SeaWorld.

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