SeaWorld Fights to Get Trainers Back in Water With Killer Whales

A panel of judges will now decide the future of 'waterwork' at the popular amusement park.

Photo: Gerardo Mora/Getty Images

Nov 13, 2013· 3 MIN READ
David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

The three-year legal battle between SeaWorld and the U.S. Department of Labor took a dramatic, high-stakes turn Tuesday when attorneys representing the company tried to convince a federal appeals court to overturn a safety violation issued by the Occupational Safety and Health Administration and a ban limiting how the park’s trainers interact with killer whales during performances.

At issue is OSHA’s ruling, in the wake of the February 2010 death of trainer Dawn Brancheau at the company’s Orlando park, that SeaWorld had violated safety standards, and its order that trainers “abate” the hazard by maintaining a minimum distance and/or a physical barrier between themselves and orcas. Tilikum, the park’s 12,000-pound breeding male, grabbed Brancheau from a shallow ledge, rammed her repeatedly in the water, and refused to relinquish her body for nearly an hour—all as a handful of horrified visitors looked on.

SeaWorld claimed that OSHA had overstepped its authority in issuing the ruling. The company also contended that Federal Administrative Law Judge Ken Welsch, who upheld the abatements after a lengthy trial in 2011, erred in his ruling and overreached in applying the occupational safety law.

SeaWorld's main arguments Tuesday centered on OSHA's legal authority to undermine the "intrinsic premise" of any company's business model, and to the expert witness used by the government at trial.

OSHA issued its violation under what is called the “general duty clause” of the Occupational Safety and Health Act, which is typically used in citing industries without established safety standards (which includes wild animal parks). Such employers have a general obligation to keep their workplaces as free from safety hazards as possible.

SeaWorld attorney Eugene Scalia argued that the company “believed its protocols controlled the hazard” and thus “satisfied the general duty clause.”

Much of Scalia’s oral argument focused on the close interaction between trainers and orcas that occurs both in large performance tanks, where they used to swim with the predators, and in shallow “slideout” areas, which is considered “drywork,” where they still hug, kiss, and rub down the whales. In the wake of Brancheau’s death, SeaWorld voluntarily banned waterwork.

Scalia also argued that physical contact with killer whales is as critical to his client’s core business as blocking and tackling are to professional football. By banning trainer-to-orca contact at SeaWorld, he argued, the government was irreparably changing and undermining the “premise of its business model.” OSHA’s restrictions were akin to telling "the NFL that close contact would have to end,” Scalia said, adding that the NFL saw more player injuries on any given Sunday than had occurred at SeaWorld in the past 22 years.

SeaWorld’s other target was OSHA expert witness Dr. David Duffus of the University of Victoria, in Victoria, British Columbia. Duffus headed the inquiry into the 1991 death of Keltie Byrne, a trainer at the now-defunct SeaLand of the Pacific. As detailed in the new CNN documentary Blackfish, three orcas, including Tilikum, are alleged to have drowned Byrne after she slipped and fell into their tank.

Duffus has spent years studying whales in the ocean but has little experience with those in captivity, making him “manifestly unqualified,” Scalia charged. “How can he comment on marine park hazards or abatements?” Scalia said of Duffus. “It’s like a bird-watcher telling a zoo how to run its aviary program.” Scalia reminded the three-judge panel that expertise “is central” in general-duty cases, some of which were reversed by this same court because expert witnesses “lacked the proper expertise.”

Judge Judith Rogers didn’t seem to buy the argument. Scalia, she suggested, was essentially arguing that the only acceptable expert “would be a SeaWorld employee.” In general, she and Chief Judge Merrick Garland seemed less receptive to Scalia’s arguments than the third judge, Bret Cavanaugh.

For the government to prevail, Department of Labor attorney Amy Tryon had to convince the judges that intimate contact with killer whales is not an intrinsic component of SeaWorld’s core model but rather an unnecessary safety hazard that has led to serious worker injury and death. Those hazards are preventable, Tryon contended, through feasible means of abatement, such as physical barriers.

"SeaWorld is a workplace," Tryon said. "They place their employees at risk. SeaWorld created this business but cannot create their own safety standard.”

Moreover, SeaWorld had already implemented new safety measures, including the voluntary waterwork ban and the new policy of zero contact with Tilikum, Tryon noted. This did not, as Scalia had argued, require a “stark change” in the company’s intrinsic nature, was simple to apply, and “hasn't put them out of business,” she said.

“OSHA isn’t asking SeaWorld to prevent all activities. These are feasible reductions that we know SeaWorld can do because they're doing them now,” she said. “The acts that SeaWorld claims are inherent to their business model are, in fact, not inherent to their business model.”

Tryon also defended expert witness Duffus, arguing that his expertise and testimony were relevant because he discussed how predatory behaviors in wild orcas can also be seen in captive ones. Because of this, no amount of animal training could make this workplace safe. “SeaWorld training does not take the predatory instinct out of these animals," she said.

The hearing, which normally would be held in a courtroom at the U.S. Court of Appeals for the District of Columbia, garnered such high interest among the public that it was held instead at an auditorium at the Georgetown University Law Center. It was the first time oral arguments for the D.C. Circuit were heard outside the court. The more than 100 spectators included Georgetown University law students, members of the public, and SeaWorld employees.

A decision could take months. SeaWorld has hinted it might go to the Supreme Court if defeated, citing constitutional “vagueness” of the general duty clause. If SeaWorld wins, it can return to business as usual, including, presumably, waterwork.

The company says it has “no plans” to put trainers back in the water during shows. But as everyone knows, plans can change.