WASHINGTON -- A federal ban on contact between killer whales and
their trainers, imposed after a bull orca drowned a SeaWorld trainer,
faces a challenge in federal court Tuesday as the marine park fights to
keep its signature attraction.
SeaWorld, famous for its "Shamu"
killer whale shows, says the Labor Department judge went too far when he
prohibited "close contact" between the killer whales and their keepers
after the Feb. 24, 2010, death of veteran SeaWorld Orlando trainer Dawn
Brancheau died after Tilikum yanked her from a
platform into a pool during the "Dine with Shamu" show and thrashed her
until she drowned. The whale held Brancheau in his mouth for nearly 45
minutes before other trainers could extricate her body.
The Labor Department's Occupational Safety and Health Administration
investigated Brancheau's death and cited SeaWorld for "willfully"
violating federal safety laws that require a workplace to be free from
Tilikum, SeaWorld's largest whale at 12,000
pounds, had killed at least once before coming to SeaWorld. In that
incident at a park in Canada in 1991, a trainer slipped into a pool and
Tilikum pulled her under repeatedly, drowning her. In a second incident,
a man who sneaked into the park after closing was found dead in
The federal government says SeaWorld knows Tilikum
is dangerous and prohibits trainers from working in water more than
knee-deep with the animal. With other whales, trainers can swim in their
pools. SeaWorld's trainers have dozens of close interactions daily with
the park's seven killer whales.
Although Administrative Law Judge
Ken Welsch downgraded the citation from "willful" to "serious," he
fined the marine amusement park $7,000 and barred "close contact"
between SeaWorld staff and killer whales.
The judge found that the "emotions inspired by the grandeur of humans interacting with killer whales" did not justify the risk.
SeaWorld, which is represented in court by Eugene Scalia, son of
Supreme Court Justice Antonin Scalia, argues in a legal brief that human
contact with the killer whales is educational, integral to the care of
the whales and answers "an elemental human desire to know, understand
and interact with the natural world."
Many activities that put
humans in contact with nature, such as mountain climbing or kayaking,
carry risk, SeaWorld argues. The law requires SeaWorld to minimize
risks, not eliminate them, court papers say.
"On rare occasions,
killer whales can be dangerous," Sea World wrote. "Sea World has taken
extraordinary measures to control that risk."
prohibition of interaction between whales and humans at SeaWorld to
barring blocking and tackling in the NFL or posting speed limits on the
NASCAR circuit. Barring close contact would change the nature of
SeaWorld's business, the lawyers say.
"SeaWorld has always made killer whales the centerpiece of its mission," the legal brief said.
Attorneys for OSHA argue that killer whales' behavior is so
unpredictable that SeaWorld's scientifically unproved training methods
are not enough to mitigate the risks.
The agency cited several
"near misses" when trainers working with killer whales at SeaWorld were
injured, including an incident in 2006 at San Diego SeaWorld during
which killer whale Kasatka grabbed a trainer by the foot and repeatedly
dragged him to the bottom of the pool for eight minutes until the
trainer broke free and swam to safety.
"Forty-plus years of
history at the SeaWorld parks have yielded occasion after occasion where
captive killer whales have not responded as their trainers intended,"
the attorneys wrote in OSHA's legal brief. "The hazard in this case was
well-known to SeaWorld and fully capable of being prevented."