SeaWorld Gives Up Fight to Keep Trainers in the Water With Killer Whales

The company acknowledges the continuing controversy over a trainer's death in 2010 has hurt its image and bottom line.

An unidentified trainer works with a killer whale during the "Believe" show at SeaWorld in Orlando, Fla., on Feb. 14, 2010. (Photo: Richard Baum/Reuters)

Aug 20, 2014· 1 MIN READ
David Kirby has been a professional journalist for 25 years. His third book, Death at Seaworld, was published in 2012.

SeaWorld has abandoned its long-running challenge of a federal order that has kept trainers away from killer whales during performances at its water parks.

The order from the U.S. Occupational Safety and Health Administration was related to the February 2010 death of orca trainer Dawn Brancheau.

In a filing with the United States Securities and Exchange Commission, SeaWorld said it would not take its case to the U.S. Supreme Court. That decision follows a ruling by a federal appellate court denying SeaWorld’s challenge of the OSHA order.

“We have elected to not pursue further appeal,” SeaWorld stated in the filing. “In connection with this incident, we reviewed and revised our safety protocols and made certain safety-related facility enhancements such as revising training protocols used in show performances.”

“This incident has also been and continues to be the subject of significant media attention, including extensive television and newspaper coverage, a documentary and a book, as well as discussions in social media,” the company added. “This incident and similar events that may occur in the future may harm our reputation, reduce attendance and negatively impact our business, financial condition and results of operations.”

Last November, SeaWorld attorneys argued before a federal appellate court that the OSHA order, issued Aug. 24, 2010, should be overturned because close interaction between orcas and trainers was an integral part of the company’s business model.

In April, the court upheld the government’s safety mandates, which barred trainers from entering the water with orcas during shows, and ordering the company to maintain minimal distances or physical barriers between employees and the killer whales. That left SeaWorld with one last legal option: the Supreme Court.

The long saga began on a gloomy February afternoon at SeaWorld Orlando when the 12,000-pound orca Tilikum—already involved in the deaths of two people—grabbed Brancheau, pulled her into the water, and rammed her to death.

After a six-month investigation, OSHA hit SeaWorld with the willful violation citation and ordered that trainers stay out of the water. SeaWorld had suspended so-called waterwork immediately after Brancheau’s death but made clear its intent to resume the practice.

SeaWorld appealed the OSHA ruling before a Labor Department administrative law judge in the fall of 2011. The following May, the judge reduced the citation from willful to serious but upheld OSHA’s safety mandates.

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

SeaWorld then appealed to a special Labor Department commission, which refused to hear the case. When that failed, SeaWorld filed in the Court of Appeals for the District of Columbia Circuit, which sent the issue into mediation. After those talks went nowhere, the court heard oral arguments from both sides, eventually ruling against the company.

Last month, OSHA issued the Miami Seaquarium a similar violation, ordering trainers not to enter the water with its sole killer whale, Lolita. That facility has not yet said whether it will appeal.

But it is unlikely we will see trainers swimming with orcas at any U.S. theme park again.