SeaWorld appeals penalty, restrictions imposed after trainer’s death

Florida’s SeaWorld has a killer whale of a case coming before an influential court.

Represented by a high-powered attorney with a famous pedigree, SeaWorld is challenging a federal penalty imposed after the February 2010 death of trainer Dawn Brancheau. The veteran trainer died after being dragged underwater by Tilikum, a bull orca based at SeaWorld’s Orlando, Fla. facility.

Animal rights activists and corporate officials alike are watching closely, as the U.S. Court of Appeals for the District of Columbia Circuit prepares for the crucial oral arguments Tuesday. More than a monetary fine is on the line.

“There are certainly broader implications for SeaWorld,” Jared Goodman, an attorney for the PETA Foundation, an animal rights group, said in an interview Friday. “They’re continuing to fight this, because they are trying to get their trainers back into the water with the whales.”

The 30-minute argument Tuesday morning will itself be a bit of a show, as the appellate court has relocated it to the Georgetown University Law Center. Eugene Scalia, the Labor Department’s former top lawyer and the son of Supreme Court Justice Antonin Scalia, is representing SeaWorld.

Substantively, the case involves the Occupational Safety and Health Administration’s response to Brancheau’s death. OSHA, which is part of the Labor Department, imposed what’s now a $12,000 penalty, as well as additional safety requirements. The company’s appeal of the OSHA penalty was directed to the D.C.-based appellate court.

For SeaWorld, part of a larger company that includes Busch Gardens, the proposed fine amounts to a drop in the bucket. More troublesome for the company is the Labor Department’s accompanying order prohibiting “close contact” between its staff and killer whales during performances. If it remains intact, that prohibition could sap some of the crowd-thrilling zing at SeaWorld shows.

“For us the case is about the safety of our trainers and the welfare of our animals. The ways in which we interact with these whales is critical for both,” Fred Jacobs, a vice president at SeaWorld Parks Entertainment, said in an email Friday. “It really comes down to what SeaWorld has done every day for nearly 50 years; share killer whales with our guests in ways that are enriching, educational and inspiring.”

More broadly still, the case could set a precedent for other regulatory actions that involve workplace protections and responsibilities. Rulings by the D.C. circuit court can be influential because they cover the broad range of federal government administrative actions.

The case involves the so-called “general duty clause” of the Occupational Safety and Health Act, which requires employers to provide “a place of employment which (is) free from recognized hazards that are causing or are likely to cause death or serious physical harm.” A key question is whether SeaWorld violated this duty in having a 120-pound trainer become so intimate with a 12,000-pound, 22-foot-long marine mammal.

“On rare occasions, killer whales can be dangerous,” Scalia and his colleagues acknowledged in a legal brief. “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.”

On Feb. 24, 2010, the 40-year-old Brancheau was leading a routine afternoon show at SeaWorld’s Shamu Stadium. As subsequently recounted by the Labor Department, she was reclining on a platform a few inches below the surface of the water. Tilikum was supposed to mimic her behavior by rolling onto his back. Instead, Tilikum grabbed Brancheau and pulled her off the platform into the pool.

“She could not break free,” one witness, John Topoleski, subsequently testified.

Tilikum held on to Brancheau for about 45 minutes before other trainers could coerce the animal into a smaller pool and retrieve the trainer’s battered body. It wasn’t the first such fatality attributed to Tilikum.

In February 1991, while housed in Canada, Tilikum grabbed a trainer by the thigh and kept submerging her. Witnesses estimated that the trainer was “conscious for anywhere from 10 minutes to an hour” before drowning, Labor Department attorneys subsequently recounted. The next year, SeaWorld bought Tilikum and moved the animal to Orlando, where officials instituted special safety procedures.

“SeaWorld’s training program is highly detailed, well-communicated and intensive. Yet it cannot remove the element of unpredictability inherent in working with killer whales,” Administrative Law Judge Ken S. Welsch subsequently wrote.

In appealing, SeaWorld contends that it shouldn’t be required to eliminate all risk associated with an activity that’s essential to the company’s work, any more than the Labor Department could “post speed limits at Daytona or require two-hand touch in the NFL.”

The Labor Department countered with a recitation of troubling incidents involving SeaWorld’s killer whales, concluding that the company’s reliance on “operant conditioning” and safety protocols are “ineffective at protecting trainers from the risks of close contact with killer whales.” Instead, Labor officials want SeaWorld trainers to work behind barriers or maintain safe distances between themselves and the whales, moves that SeaWorld fears would undermine the show.