(Adds government response, paragraph 7)
By Lawrence Hurley
WASHINGTON, April 11 (Reuters) - A U.S. appeals court on Friday upheld a federal occupational safety agency’s finding against SeaWorld Entertainment Inc following the workplace death of one of its killer whale trainers.
By a vote of 2-1, the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit held that SeaWorld had violated its duties as an employer by exposing trainers to “recognized hazards” when working with killer whales. The ruling means the Occupational Safety and Health Administration (OSHA) can require SeaWorld to limit the interactions trainers have with killer whales.
The federal agency had fined the company $75,000, a sum later reduced to $12,000, after trainer Dawn Brancheau died in February 2010. She drowned after being pulled underwater by Tilikum, a 12,000-pound (5,400-kg) bull orca at the SeaWorld site in Orlando, Florida.
OSHA, which is part of the U.S. Department of Labor, had told SeaWorld it could resolve the problem by requiring trainers to be protected by physical barriers or by adopting other abatement measures.
SeaWorld, which operates 11 parks around the United States, said in a statement that it already has introduced new safety procedures, including removing trainers from the water during shows. Even after the court’s ruling, “there will still be human interactions and performances with killer whales,” the statement said.
The company said it had yet to decide on whether to appeal the decision.
The Labor Department said in a statement that courts have “consistently upheld our position that killer whales pose a danger to employees who are not adequately protected.”
Human-orca interaction has long been filled with controversy, revisited last year with the release of the movie “Blackfish” about Brancheau’s death and Tilikum’s career as an entertainer and stud for other captive whales. SeaWorld has criticized the film as “inaccurate and misleading.”
Rights group People for the Ethical Treatment of Animals (PETA) welcomed the court decision. Jared Goodman, the group’s director of animal law, said it “brings to an end the days of trainers standing and riding on orcas for human amusement.”
SeaWorld had appealed over the federal agency’s application of federal safety law to an unusual workplace situation it had not regulated before.
The appeals court concluded that OSHA did not overstep its authority in bringing the action against SeaWorld.
“Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous,” Judge Judith Rogers wrote on behalf of the court.
She played down SeaWorld’s concerns about the impact on its operations, saying that improved safety “does not change the essential nature of the business.”
Judge Brett Kavanaugh wrote a dissenting opinion noting that people who work in dangerous fields in the sports and entertainment context are aware of the risks.
OSHA has “departed from tradition and stormed headlong into a new regulatory arena,” he said.
The case is SeaWorld v. Dept. of Labor, 12-1375. (Reporting by Lawrence Hurley. Additional reporting by Carlyn Kolker.; Editing by Howard Goller, Tom Brown and Jonathan Oatis)