As weeks go, this one was a mixed bag for SeaWorld. Just three days after a California Assembly committee deferred voting on a bill to ban orca shows, pending further study, a Federal Court far across the country rejected SeaWorld’s appeal of the government’s mandate for increased safety measures following the 2010 death of Orlando trainer Dawn Brancheau.
SeaWorld’s argument, that safety protocols were sufficient to protect workers and that the government was being arbitrary and capricious by imposing new safety measures, were “unpersuasive,” wrote Judge Judith Rogers of the US Court of Appeals for the District of Columbia Circuit. The three-member panel rejected SeaWorld’s appeal 2-to-1.
At issue was whether the Occupational Safety and Health Administration (OSHA) acted properly by banning “waterwork,” when trainers ride on the animals, and requiring physical barriers and minimal distances between orcas and trainers, even during “drywork,” when trainers remain onstage.
It was the fifth time that SeaWorld fought back against OSHA, and lost.
On February 24, 2010, when the orca Tilikum dragged Brancheau under water and brutally killed her, OSHA inspectors arrived on the scene to begin their investigation. Over the next six months, SeaWorld tried to ward off any safety violations, but was handed a major defeat that August when OSHA issued a “willful” citation and $75,000 fine against the company. The feds also imposed a ban on waterwork and mandated barriers between orcas and trainers during shows.
In the fall of 2011, SeaWorld challenged OSHA before a Labor Department administrative law judge in a courtroom outside Orlando. But the following May, the judge sided with the government, upheld the mandated safety measures and chastised SeaWorld for exposing orca trainers to known risks of injury. He did, however, reduce the citation to “serious” and lowered the fine to $7,000.
SeaWorld’s third defeat followed soon after: The company appealed the ruling to the Labor Department’s Occupational Safety and Health Commission, but the commission refused to hear the case.
Next, SeaWorld filed an appeal at the DC Appeals Court, which sent the matter into arbitration. But OSHA refused to back down on the safety measures and the Court scheduled oral arguments for November 12, in Washington, DC.
At the hearing, SeaWorld’s attorney, Eugene Scalia, son of Supreme Court Justice Antonin Scalia, argued that the government was, essentially, picking on SeaWorld and overlooking other companies whose employees are put at risk, such as the NFL and NASCAR.
The lone dissenter, Judge Brett Cavanaugh, a Republican appointee, agreed with Scalia. He wrote that orca trainers, football players, race car drivers and others “want to take part… despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough– to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk– is among the greatest forms of personal achievement.”
Cavanaugh said the government had “stormed headlong in to a new regulatory arena” and asked, “When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves?”
But Judge Rogers and Chief Judge Merrick Garland were unconvinced.
“Our colleague’s main point appears to be that the Secretary and the Commission were arbitrary and capricious by failing to reasonably distinguish SeaWorld’s killer whale shows from the NFL and NASCAR,” Rogers wrote. “It’s all or nothing, the dissent suggests.” And, she added, “the unusual nature of the hazard to its employees performing in close physical contact with killer whales” does not exonerate SeaWorld from its obligation protect employees.
SeaWorld, whose only legal option now is the US Supreme Court, said in a statement that “We are obviously disappointed with today’s decision,” but added, “the decision simply requires that we continue with increased safety measures during our shows.” The company is “still reviewing the opinion and no decision has been made on whether we will appeal,” it said.
Either way. today’s defeat was a far cry from earlier this week, when newspapers heralded a major “victory” for the company after the California Assembly committee postponed its vote on the Orca Welfare and Safety Act, which would make it illegal to use killer whales “for performance or entertainment purposes.”
For now, the Shamu shows will go on. But if trainers come in close proximity to the whales, SeaWorld will find itself in legal hot water all over again.