SeaWorld has lost its legal battle to overturn a federal safety violation in the 2010 death of Orlando orca trainer Dawn Brancheau, and was roundly defeated in its attempt to vacate OSHA-mandated measures to protect the safety of trainers working with the ocean's deadliest predator.
Administrative law judge Ken Welsch issued his rather scathing verdict today.
Brancheau was dunked, rammed, scalped and dismembered by the 12,000-pound male orca Tilikum in February 2010. Her death, witnessed by horrified tourists at SeaWorld, sparked a public outcry against keeping killer whales in captivity, unprecedented media scrutiny of the industry, and a federal OSHA investigation that resulted in the issue of a "willful" violation against SeaWorld and the apparent end of allowing trainers to perform with killer whales in the water.
But last fall, SeaWorld took the federal government to court in a highly publicized trial that pitted corporate profit against time-honored regulations designed to protect the life and limb of human workers.
It looks like the workers prevailed.
This long-anticipated verdict is "a win for the employees of SeaWorld," said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health. "Within 10 days after the Judge's order becomes final, SeaWorld must abate the hazards and provide documentation to OSHA's Tampa Area Office that the hazards have been corrected."
The ruling may have reduced the violation against SeaWorld from "willful" to "serious," but is by no means a victory for the entertainment park franchise. On the contrary, the judge ruled that "the gravity of this violation is very high," and that "killer whales sometimes engage in unpredictable behavior, including seizing trainers with their mouths, holding the trainers under water, and ramming the trainers while in the water."
Even worse for SeaWorld, the ruling upholds safety abatements demanded by OSHA in the original violation.
When killer whales go "off behavior," it is not always possible to get them back under control. That's why OSHA insisted that SeaWorld ban trainers from performing in the water with orcas, or else install measures that would provide equal or better levels of protection for its workers.
The judge had some surprisingly harsh words for the company.
"SeaWorld insists it did not recognize the hazard posed by working in close contact with killer whales. The court finds this implausible," he wrote. "No reasonable person reading these comments would conclude that SeaWorld was unaware that working in close contact with killer whales during performances creates a hazard for its trainers."
And, Welsch added," SeaWorld holds trainers to a near-impossible standard set by upper management, who engage in a form of Monday morning quarterbacking."
SeaWorld has vowed to return to water work as soon as possible. It has spent at least $65 million on "spare air" oxygen systems for trainers and fast-rising pool bottoms that would beach a rampaging whale and allegedly let rescuers assist the victim trapped in its jaws. It is difficult to see how these measures could provide equal or better protection than staying out of the water with the ocean's top predators.
SeaWorld may well appeal this defeat. The case then goes to Washington, where it will be heard by the Occupational Safety and Health Commission. It will be the ultimate political showdown: SeaWorld is owned by the Blackstone Group, a huge venture capital firm run by billionaire Stephen Schwarzman -- an avid backer of Mitt Romney who once compared Obama's economic policy to that of Hitler. In 2011, to avoid taxes, SeaWorld sent its record-breaking profits to Blackstone, which itself paid no taxes on the windfall under a depreciation loophole in the law.
Whether people should be allowed to swim with the ocean's top predator is a matter for the government, and the courts, to decide. The much larger question is whether it is ethical and appropriate to keep these large, free-ranging, intelligent animals in captivity at all. Captive orcas have a death rate that is two-and-a-half times higher than those in the Pacific Northwest. That alone should answer the ethical question.
David Kirby will be appearing on AC360 tonight.
For more on the OSHA ruling, please see this article by Jason Garcia of the Orlando Sentinel:
David Kirby is author of the upcoming book "Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity" (St. Martin's Press, July 17, 2012)