The U.S. Court of Appeals for the District of Columbia Circuit has upheld the finding by the Occupational Safety and Health Administration (OSHA) that SeaWorld Entertainment Inc. exposed orca trainers in its employ to “recognized hazards” in violation of its duties as an employer. The OSHA finding came as a result of an investigation launched after a trainer was killed by an orca at the SeaWorld in Orlando, Florida. The decision today means that trainers must stay out of the water during killer whale shows.
SeaWorld trainer Dawn Brancheau drowned in February 2010 after a 12,000-pound orca named Tilikum pulled her underwater by her ponytail. OSHA, which operates as part of the U.S. Department of Labor, spent six months investigating the incident and originally fined SeaWorld $75,000 for putting the safety of its orca trainers in jeopardy. That amount was subsequently lowered to $12,000.00. SeaWorld owns 11 parks in the United States, and has ceased all performances with trainers in the water in three of them. They hope to eventually resume killer whale shows in all parks.
The decision to uphold the finding was passed by a three-judge panel in a vote of two to one. By upholding the ruling, OSHA is able to put a requirement in place under which SeaWorld is forced to limit interactions between trainers and killer whales. A judge had previously fined SeaWorld $7,000 and ordered them to require measures such as physical barriers to protect trainers. The ruling on Friday upholds an added requirement that SeaWorld’s trainers may not have any interaction with the orcas during their shows. The company maintains that even with the decision of the US Court of Appeals, “there will still be human interactions and performances with killer whales.”
SeaWorld added that it has not decided whether to appeal the ruling, which would take place in front of the Supreme Court. The initial appeal was based on OSHA applying a federal law to a situation that it had not previously regulated. The Court of Appeals found that OSHA had been within its authority to bring action against the company.
Writing on behalf of the court, Judge Judith Rogers stated that SeaWorld managers have not made interaction with orcas safe, but have only demonstrated that they realize how dangerous the interaction could be. Addressing concerns by SeaWorld’s lawyer, Eugene Scalia, that the ruling would undermine the park’s business model, the judge noted that improving safety will have no effect on the business itself.
The lone dissenting judge, Judge Brett Kavanaugh, wrote that people working in dangerous fields are well aware of the risks involved. Kavanaugh believes that in its action against SeaWorld, OSHA has “stormed headlong into a new regulatory arena.”
For their part, the Department of Labor issued a statement saying that U.S. courts have “consistently upheld our position that killer whales pose a danger to employees who are not adequately protected.”
The group People for the Ethical Treatment of Animals (PETA) spoke out in favor of the court’s ruling. PETA’s director of animal law, Jared Goodman, stated that it “brings to an end the days of trainers standing and riding on orcas for human amusement.”
By Jennifer Pfalz