SeaWorld appeals killer-whale safety ruling
By Jason Garcia, Orlando Sentinel
6:37 p.m. EST, July 10, 2012
SeaWorld Parks & Entertainment is appealing a federal judge's ruling that its animal trainers be forbidden from having unprotected contact with killer whales during public performances.
The Orlando-based marine-park operator said Tuesday it has submitted a petition to the U.S. Occupational Safety and Health Review Commission, asking the panel to review the May 30 ruling.
If commissioners, who are appointed by the U.S. president, do not grant a review, the judge's decision will become final on July 16.
The case stems from the Feb. 24, 2010, death of SeaWorld Orlando trainer Dawn Brancheau, who was battered and drowned by the six-ton killer whale Tilikum. The U.S. Occupational Safety and Health Administration spent six months investigating SeaWorld's killer-whale program following the tragedy, ultimately charging SeaWorld with a "willful" safety violation — its most severe classification — and recommending that trainers never again be allowed in close contact with the animals unless protected by a physical barrier or something offering the same level of protection.
SeaWorld challenged the recommendation before the independent OSHA review commission, which first assigned administrative-law judge Ken S. Welsch to hear the case. SeaWorld and OSHA spent two weeks calling witnesses and arguing before Welsch last fall.
Welsch, who spent months deliberating, ultimately agreed to dismiss the "willful" classification. But he sided with OSHA on the more far-reaching point, ruling that SeaWorld trainers must be protected by physical barriers.
That strict standard could effectively make it impossible for SeaWorld to ever again allow trainers to swim and perform in the water with its killer whales, robbing the marine park of one of its most iconic attractions.
Importantly, Welsch said his ruling — and thus OSHA's safety recommendations — was limited only to the work SeaWorld trainers do during shows and not at other times. SeaWorld had argued that its trainers must be allowed to have close contact with the whales so it could properly care for them, such as during veterinary procedures.
In its filing, SeaWorld called Welsch's decision to draw a line between performances and other work "illogical and erroneous."
"In essence, the judge concluded that having close contact with killer whales is a recognized hazard, but only if that contact occurs during the performance of a show," lawyers for the marine park wrote in a 13-page petition. "Never before has a hazard been identified as such in one setting and then determined to be an acceptable activity in another setting."
SeaWorld's lawyers also said Welsch should have concluded that OSHA's physical-barrier recommendation is not a practical safety solution — or "method of abatement" —because it precludes any in-water interactions at all between trainers and whales.
"The administrative law judge failed to address the fact that the [U.S. Department of Labor] secretary did not offer any evidence of a feasible abatement method for SeaWorld to continue to work with the killer whales in the manner that it had previously worked with the killer whales for the past 40 years," they wrote. "The judge erred by finding that there was a feasible abatement method because there was no offer [of] a feasible abatement method that would allow its [SeaWorld's] trainers to get into the water with its killer whales."
Welsch, who was at times sharply critical of SeaWorld management in his ruling, had deemed barriers a feasible solution in part because SeaWorld has not allowed trainers to engage in any "water work" since Brancheau's death, and that the resulting ban has not harmed SeaWorld financially. In fact, the company has said it posted record earnings in 2011.
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