SeaWorld Appeals the Verdict

After years of trial and error (and $65 million dollars), the fast-rising floor in the Dine With Shamu pool at SeaWorld Orlando has been completed. The venue and the underwater viewing area which is now open for business, was the scene of a gruesome attack in February 2010. Guests watched as senior orca trainer Dawn Brancheau, was pulled into the Dine With Shamu pool by the whale Tilikum where she was brutally mauled to death.

Days before the completion of the Dine With Shamu Pool, SeaWorld had petitioned OSHA’s panel of commissioners to review the May 30 verdict in which Judge Welsch ruled that the trainers must be protected when performing with killer whales in SeaWorld’s shows. The verdict ordered SeaWorld to ban waterworks for performances and to put updated safety measures in place to protect employees. The strict standard could keep trainers out of the water for good. SeaWorld had until last week to update their safety procedures, and likely submitted the petition because they knew that their fast-rising pool floor would not meet that standard. If OSHA’s commissioners decide not to review the verdict, the Judge’s ruling will become final on July 17.

The fact that the Judge made a distinction between public shows and behind the scenes work with killer whales has been hotly debated and was the first item in SeaWorld’s appeal which reads:

“The judge’s ultimate conclusion that Citation 2, Item 1, was limited to ‘show performances’ is illogical and erroneous. In essence, the judge concluded that having close contact with killer whales is a recognized hazard, but only if that occurs during the performance of a show.”

During the court hearing, SeaWorld argued that the trainers must have in-water interaction in order to properly care for the animals’ health. In his verdict, the Judge set specific regulations on performance waterwork stunts vs. the waterworks required for

Since waterwork stunts have been banned, there have been no injuries or incidents at SeaWorld.

husbandry procedures, so that trainer may still enter the water in order to measure the whales, give ultrasounds, etc. SeaWorld now argues that there is no difference between veterinary care for a whale behind the scenes, and riding it as a stunt in a show. But there are actually some major differences between the two settings:

  • Stunts are optional, and solely for thrilling the audience in a show. There is no practical value to the stunts and they are highly risky and detrimental to the trainers and the animal’s safety.
  • Waterworks required for husbandry procedures is not as risky to physical well being, or as demanding to trainers or whales which means that there is a smaller chance that injury would occur. Because the whale’s lives rely on the procedures, it is worth the nominal risk.

The judge did conclude that it is inherently dangerous to work in close contact with whales in any setting, but the risk and window of opportunity for injury to trainers becomes miniscule when waterworks is limited to being in the water next to a whale for a short period of time as it is undergoing a medical procedure. Although many aggressive incidents have taken place outside of shows, they ALL took place in the water and likely during training sessions which involved these high risk show stunts. Since waterworks has been banned, there have been absolutely no incidents regarding captive killer whales at SeaWorld.

In its appeal, SeaWorld points out that the Judge did not pat them on the back in certain areas. Specifically that he did not address whether or not their animal training program met AZA (Association of Zoos and Aquariums) standard. This is a bit of an aside to the core issue and there was no need for it to be addressed. As a sub point, they added:

“Judge Welsch failed to properly consider testimony from SeaWorld’s expert witness, Jeff Andrews, the only expert offered with actual experience training killer whales in a captive setting, that SeaWorld’s training program was very impressive and the best he had ever come across.”

Jeff Andrews’ report was quite laughable in that it was poorly researched, and the judge didn’t turn a blind eye to that fact. It has been pointed out that Jeff Andrews did not talk to witnesses, view Dawn’s autopsy report, or read Tilikum’s official profile when he testified. As a result, many of his claims (especially regarding the nature of the attack) were outrageous as he stated that Tilikum had never been aggressive and didn’t act aggressively

Tilikum is one of many whales at SeaWorld who have been banned from doing waterworks even before the February 24 incident.

toward Dawn. Two statements which are easily refuted with a little research and common sense given that he was, after all, writing a report on Tilikum brutally attacking a trainer. Jeff Andrews praised SeaWorld’s training method and the judge did consider this fact, acknowledging their thorough safety training program. But there is no reason for the Judge, or anyone for that matter, to take the report seriously.

“The Judge improperly relied on evidence of SeaWorld’s protocols in concluding that the Respondent recognized a hazard in working with Tilikum…The Judge failed to consider evidence that the Respondent had implemented safety and training protocols specific to interactions with Tilikum that had resulted in successful interactions with this whale for 18 years, without any injury to SeaWorld trainers. “

The fact that there are so many rules regarding interaction with Tilikum indicates that SeaWorld knew he was a hazardous animal. Otherwise, there would be no reason to have so many rules. Their ban on waterwork and limited contact with Tilikum for 18 years has likely saved many trainers from being injured or even killed. This works in favor of the Judge’s verdict: lack of waterworks reduces injury and saves trainer’s lives.

“Judge Welsch erroneously concluded that working in close contact with killer whales other than Tilikum, in captivity was a recognized hazard in violation of Section 5(a)(1) of the OSHA act.”

Most of SeaWorld’s whales have expressed aggression and injured trainers, and two of them have been responsible for the four human deaths that have taken place in captivity. Tilikum is only one of several whales to be banned from waterworks even before the February 24 incident. In its appeal, SeaWorld argues that the Judge erred in claiming that each interaction with a killer whale posed a risk to trainers because an injury has not occurred during every interaction. Every interaction is a risk because there is a chance something could happen. How often an injury happens is of no consequence to the fact that the risk is taken.

SeaWorld also had much to say regarding OSHA’s expert, Dr. David Duffus, who was called to witness on predictability of killer whale behavior and killer whale safety. Dr. Duffus is a professor, a researcher, and an expert on cetaceans, especially killer whales. SeaWorld says that Dr. Duffus was “unqualified,” his opinions are mere “speculation,” and it was erroneous for the Judge to even consider his opinion because he had no experience in animal training. Animal training experience is however, not a prerequisite in determining how predictable the behavior of a wild animal may be.

Several items in the appeal were dedicated to explaining how the abatement methods are not feasible because waterworks could not resume to its previous, unprotected state if the trainers were to follow the rules laid out in the Judge’s ruling. The feasibility of the abatement methods were determined based on the fact that SeaWorld has already been out of the water with all the whales for a couple of years, and it had not

Alexis Martinez died just months before Dawn Brancheau in an attack by SeaWorld’s killer whale, Keto.

impacted their profits. In fact, they reported a record year in 2011. Waterworks cannot return to its previous state because it was deemed a safety hazard. The abatements are not only feasible, they are already in place as regular protocol and have been for more than 2 years.

“The Administrative Law Judge erroneously found that Respondent had not materially reduced the hazard of working with killer whales through the use of its operant conditioning program. The Judge erred in finding that the incident of February 24, 2010 would have given Respondent knowledge that its program did not work. Clearly, an incident cannot give an employer knowledge prior to the incident occurring.”

Only a couple of months before Dawn’s death, a SeaWorld killer whale had also attacked and killed its trainer in Spain at the zoo, Loro Parque. While SeaWorld may downplay this due to it occurring in a foreign park, it is obvious that training killer whales to do tricks has not reduced the hazard of working with them, at any marine park, including theirs. SeaWorld should’ve known that its “program” used to train the killer whales did not work in reducing hazards after it resulted in hundreds of incidents, injuries and multiple deaths even before Dawn Brancheau was killed by Tilikum. Operant conditioning methods are clearly not reliable in terms of trainer safety and cannot stop or prevent the killer whale from attacking.

Much of SeaWorld’s appeal dealt in the small details rather than the core issue. They were originally cited for willfully putting employees in danger, but Judge Welsch dropped the violation to the level of “serious.” Filing this appeal could lead to backlash from OSHA who will likely reinstate the “willful” violation after it decides whether or not the petition will face federal review. That decision is to be made by Monday, which is when Judge Welsch’s ruling becomes final.


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