SeaWorld Appeal Fails in Orca Trainer Death

SeaWorld has lost its attempt to appeal a scathing May 31 verdict from a federal law judge before the three-member Occupational Safety and Health Review Commission (OSHRC).

It is the third major legal defeat in a row for the marine mammal entertainment park in the death of Dawn Brancheau, a beloved 40-year-old Orlando orca trainer who was grabbed, dunked, rammed and killed by the 12,000-pound orca bull named Tilikum in 2010.

Government sources verified that the clock had run out for SeaWorld at the worker safety commission, a division of the Department of Labor, which had until end of business Monday to decide whether it would review the case.

By not acting, the commission has upheld the original verdict of Judge Ken Welsch.

The move was quite unexpected among observers in the case, and a blow for the company. The only other legal option for SeaWorld now is to go to a US Circuit Court of Appeals — and after that, conceivably but implausibly, the Supreme Court.

Judge Welsch, who had reduced the OSHA violation in the death of Brancheau from “willful” – the most severe level – to “serious,” nonetheless upheld all of the safety abatements imposed by OSHA.

Those abatements — which required new measures that would keep trainers as safe, or safer, than simply staying out of the water during performances – could easily mean the end of so-called “water work” with trainers and whales at Shamu Stadium, a central attraction at SeaWorld.

SeaWorld took the federal government to court last fall in Orlando, arguing that OSHA had acted without adequate knowledge of the complexities of maintaining marine mammals in confinement. But Judge Welsch didn’t buy it, issuing a lengthy and critical verdict on May 31 and upholding the imposed safety measures. SeaWorld then appealed that decision before the three-member, presidentially appointed OSHRC panel.

Now the panel has decided not to hear the appeal.

If SeaWorld does not file with the Federal Appeals Court, it will have to certify immediately to OSHA that its new safety abatements (fast-rising pool bottoms, emergency oxygen systems, etc.) can offer equal or greater protection than keeping trainers out of the water entirely during performances.

But SeaWorld will almost surely appeal in Federal Court, given that OSHA would never certify the above abatements. SeaWorld has 60 days to file an appeal.

This is the third major legal defeat against SeaWorld in the death of Dawn Brancheau:

  • Aug 23, 2010: SeaWorld lost its fight to stave off a violation from OSHA, which issued a “willful” citation (Most severe).
  • May 31, 2012: SeaWorld, after suing the Secretary of Labor to overturn the violation and abatements, was shot down by federal law judge Ken Welsch in a stinging rebuke.
  • June 16, 2012: The Occupational Safety and Health Review Commission refused to review the SeaWorld case.

The fact that SeaWorld is now willing to risk a fourth consecutive defeat attests to the company’s intense and unyielding desire to get trainers back in the tanks with the ocean’s top predator as quickly as possible. At this point, it is entirely unclear whether that will ever happen.

 

 

About David Kirby

DAVID KIRBY is the author of 'Evidence of Harm,' which was a New York Times bestseller, winner of the 2005 Investigative Reporters and Editors (IRE) award for best book, and a finalist for the New York Public Library Helen Bernstein Award for Excellence in Journalism, and 'Animal Factory,' an acclaimed investigation into the environmental impact of factory farms which NPR compared to Upton Sinclair’s classic work 'The Jungle.' His latest book, 'Death at SeaWorld,' was previewed by Library Journal, which wrote: “Lives are at stake here, and Kirby can be trusted to tell the story, having won a passel of awards for his investigate work.” Booklist called the book “gripping” and “hard to put down.”
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