The Occupational Safety and Health Administration (OSHA) has issued a “repeat violation” and a fine of $38,500 against SeaWorld Florida for ignoring a federal court order and continuing to run a workplace with “recognized hazards that were causing or likely to cause death or serious physical harm to employees in that employees were exposed to struck-by and drowning hazards.”
The move, a blow to SeaWorld, is the park’s latest loss in a more than three-year-long battle with OSHA that began in February 2010, when the orca, Tilikum, killed Orlando trainer Dawn Brancheau in front of horrified park guests.
The citation, issued on Friday, was obtained today by TakePart, which has covered this legal saga extensively.
Following the death of Dawn Brancheau at SeaWorld, OSHA handed the entertainment giant with a “willful” safety violation, a $75,000 fine, and orders to keep all orca trainers out of the pools (i.e. during “water work”) and for them to maintain a safe distance or physical barrier when the whales sidle up to the stage or haul themselves out of the water in the slide-out area (i.e. during “drywork”).
SeaWorld agreed to end its water work, but still allows trainers to come into extremely close physical contact with the killer whales (except Tilikum), as evidenced in numerous photos and television news accounts showing trainers hugging, kissing, and massaging orcas—with no barrier or distance at all. According to OSHA, captive orcas could easily hit or grab a trainer and drag them into the water.
“At the Shamu Stadium pools, animal trainers working with killer whales other than Tilikum were exposed to struck-by and drowning hazards in that they were allowed to engage in drywork performances with the killer whales without adequate protection,” the OSHA citation reads. It goes on to clarify, “Sea World of Florida, LLC was previously cited for a violation of this occupational safety and health standard.”
In 2010, SeaWorld sued OSHA to overturn the original violation and the ban on water work and close-proximity dry work.
At trial, the government presented documentation of numerous cases where trainers had been injured, dragged into the water, or whacked by a whale while doing “dry work.” Dawn Brancheau, herself, was doing dry work (she was on a shallow ledge with about six to eight inches of water), when Tilikum grabbed her and wouldn’t let go.
The judge in the case, Ken Welsch, refused to overturn the violation, chastising SeaWorld for putting its workers at risk, just for the sake of entertainment. However, he did reduce the safety violation from “willful” to “serious,” and lowered the fine.
Proximity to the killer whales is the factor that determines the risk to the trainersIn his decision, Judge Welsch ruled that, “Proximity to the killer whales is the factor that determines the risk to the trainers,” and cited cases where “killer whales seized trainers during waterwork or pulled trainers into the water during drywork,” and where “the injured or deceased trainer was not recovered until the killer whale decided to release the trainer.”
SeaWorld appealed Judge Welch’s decision to a Labor Department commission, which refused to hear the case.
Despite its legions of talented, high-paid attorneys, SeaWorld is nonetheless a four-time legal loser in the Brancheau saga. First, SeaWorld failed to stop OSHA from ordering trainers to stay away from the orcas. Then, when SeaWorld sued, a federal judge enforced the order. When SeaWorld appealed to the Labor Department, it lost again. With nowhere else to turn, SeaWorld filed an appeal at the Federal Court of Appeals in Washington, D.C. That court sent the matter into mediation. SeaWorld argued that the whales were essentially rendered harmless when beached in the slide out area, but didn't seem to get them anywhere, and ultimately led to the new violation and fine.
Now OSHA is once again ordering the recalcitrant, scofflaw SeaWorld to abate the hazard and finally “prohibit animal trainers from working with killer whales, including drywork, unless the trainers are protected through the use of physical barriers or the trainers are required to maintain a minimum safe distance.”
SeaWorld has 15 business days to respond, but if history is any guide, it may well contest the repeat citation and sue the feds once again, perpetuating the legal battle for a few years more. Meanwhile, there is still an appeal, left over from the 2010 violation, before the Federal Circuit Court of D.C.
SeaWorld has not given a clear explanation as to why it is so important that their trainers cozy up to killer whales during the Shamu show. Yet, the company has spent years in court and millions of dollars in legal fees, to show how “close” the relationship is between whale and human.
Except, of course, when it is not. Just ask the families of the four people already killed by orcas in captivity.