It’s been a big week for killer whales and the people who oppose captivity. Last Thursday, CNN first aired the documentary Blackfish, while running a flurry of stories about SeaWorld and the use of orcas in entertainment. But buried under the onslaught of coverage was a bit of news most people overlooked: SeaWorld announced it was abandoning plans to put trainers back in the water during shows at all of its Shamu Stadiums.
“Our trainers have not entered the water for performances since February 2010 and we have no plans for them to return to that kind of interaction with our whales,” Fred Jacobs told CNN in a written interview. It was the first time I can recall SeaWorld saying it had no intention to resume “waterwork” during shows.
SeaWorld pulled its trainers from waterwork immediately after the 12,000-pound bull Tilikum killed Dawn Brancheau at the Orlando park in February, 2010. But the company made no secret of its desire to one day resume waterwork during shows, when trainers ride, surf upon, and leap from the surging bodies of the ocean’s top predator. Yes, they hunt and eat sharks—even Great Whites.
That August, the Occupational Safety and Health Administration (OSHA) hit SeaWorld with a “willful” violation in Brancheau’s death, and said trainers should not only stay out of the water, they should not even venture into close physical contact with the killer whales.
But SeaWorld, which sued to overturn the OSHA ruling, continued allowing close contact between orcas and trainers during “drywork,” when staff interacts closely with the whales at the stage or in the slide-out area during a show. And, the company let it be known, it wanted trainers to resume waterwork as soon as possible.
Just one month after OSHA issued the violation, SeaWorld was working on plans to resume waterwork, the Orlando Sentinel reported. The company was investigating small oxygen supplies, dubbed “spare air,” that could “be embedded in SeaWorld trainers’ wetsuits and serve as an emergency source of air if a trainer is pulled underwater by a killer whale” the paper reported.
A year after Brancheau’s death, SeaWorld announced it was returning trainers into the water with orcas, at least during backstage operations (such as checkups in the shallow medical pool). It was also spending millions of dollars more on other high-tech safety measures, including a fast-rising pool bottom that could beach any rampaging whale that grabbed a trainer during waterwork.
SeaWorld was also looking into “underwater vehicles that could be used to distract an out-of-control killer whale with pulsing lights and whale vocalizations,” according to the Sentinel.
“SeaWorld wants to eventually resume the iconic, in-water performances that have helped build SeaWorld Parks into a $1.2 billion-a-year theme-park giant and are also, officials say, an important part of building relationships between whales and trainers,” the Sentinel wrote. “‘It’s something that we’ve been successful doing throughout our history,’” said Julie Scardina, a corporate curator of zoological operations for SeaWorld parks. “‘We know it inspires people, and we know that it allows us the best access to the whales.’”
And in September 2011, when SeaWorld sued OSHA to overturn the violation, lead attorney Carla Gunnin argued, “The nature of SeaWorld’s show IS waterwork.”
So what happened?
It’s hard to say exactly. After all, SeaWorld is about to argue to overturn the OSHA violation on November 12 at the U.S. Court of Appeals for the District of Columbia Circuit. Oral arguments for the company will be made by Eugene Scalia, son of U.S. Supreme Court Justice Antonin Scalia, who contends that a section of OSHA law known as the “general duty clause” does not apply to orca trainers.
“The clause cannot be used to force a company to change the very product that it offers the public and the business it is in,” SeaWorld said in its written brief. “The clause is no more an instrument for supervising the interactions between whales and humans at SeaWorld, than it is a charter to prohibit blocking and tackling in the NFL or to post speed limits on the NASCAR circuit.”
If the violation is overturned, as some analysts predict, SeaWorld will have every legal right to return orca trainers to waterwork.
Which begs the question: Why would SeaWorld preemptively announce the abandonment of its well-publicized interest to resume waterwork right before a landmark hearing the company might actually win, and after spending tens of millions of dollars on new technology to make waterwork safer?
I can see only two possible explanations: Either SeaWorld now realizes that swimming with captive orcas is indeed a safety hazard; or the company’s “plans” regarding waterwork are a publicity stunt, and might change if the Appeals Court agrees to dismantle the layers of protection that OSHA has tried to establish between whales and trainers.