Oct 29 A killer whale, the lawyer-son of a
Supreme Court justice and the grisly death of wildlife trainer
will play roles in a U.S. appeals court case next month that
could forever change marine park operator SeaWorld's marquee
The signature attraction for the company's three U.S. theme
parks has been shows featuring the black-and-white killer whales
or orcas, including several named Shamu, performing flips and
other stunts under the direction of trainers who historically
have been in close contact with them.
But that changed after the February 2010 death of Dawn
Brancheau, a 40-year-old trainer. She drowned after being pulled
into a pool by Tilikum, a 12,000-pound bull orca, at SeaWorld's
site in Orlando, Florida.
In August 2010, the U.S. Occupational Safety and Health
Administration (OSHA) fined SeaWorld $75,000 for three safety
violations, saying it had exposed its trainers to a hazardous
environment and violated a part of the Occupational Safety and
Health Act known as the general duty clause.
OSHA, a part of the Labor Department, demanded SeaWorld make
certain changes, notably, physically separating the killer whale
trainers from the orcas during show performances.
SeaWorld is appealing the broad application of a federal
safety law meant to protect workers in unusual circumstances.
The case will come before a three-judge panel of the U.S Court
of Appeals for the District of Columbia Circuit on Nov. 12.
With animal rights activists watching, Eugene Scalia, son of
Supreme Court Justice Antonin Scalia, will represent SeaWorld in
its fight against a federal order that sharply criticized the
marine park operator's safety measures.
Ken Welsch, an administrative law judge of the Occupational
Safety and Health Review Commission, in 2012 upheld the OSHA
citations but downgraded one of them to "serious" from
"willful," effectively reducing the fine to $12,000 from
In appealing Welsch's decision, SeaWorld argued OSHA's fine
was premised on an overly broad view and "novel application" of
the general duty clause, which mandates that employers keep
their workplaces free from "recognized" hazards. In a 60-page
opening appellate brief, SeaWorld called the case "fundamentally
"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 wrote. "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."
BLACKSTONE FLOATED SEAWORLD
SeaWorld Orlando is owned by SeaWorld Entertainment
, which was taken public in April by private equity firm
Blackstone Group LP. SeaWorld shares closed up 1.1
percent on Monday at $30.33 each in mildly bullish trading.
SeaWorld has brought in a high-powered team from law firm
Gibson Dunn & Crutcher to press its appeal. The team includes
Scalia, formerly the Labor Department's top lawyer. He is joined
by Baruch Fellner, also a former Labor Department lawyer, who
founded Gibson Dunn's OSHA practice.
The general duty clause is OSHA's "catch-all" clause that it
wields against companies in situations where there is not
necessarily a dominant, clearly articulated safety standard,
said Melissa Bailey, an attorney at Ogletree, Deakins, Nash,
Smoak & Stewart who represents employers in OSHA cases.
The cases can be difficult to pursue because OSHA must show
what is a "recognized" hazard when there are not clear industry
standards, she said.
"In cases like the SeaWorld case, that's a unique animal -
no pun intended," said Bailey.
ORCAS AND PEOPLE
The penalties OSHA can bring are relatively small, but a key
issue is at stake for SeaWorld - whether its performances can
include killer whales and humans in close contact.
"OSHA penalties are not that great," said Bailey, comparing
them to fines that other agencies can levy. "But it's rarely the
fine that drives the litigation. It's often the abatement cost,
and having this on your record."
SeaWorld trainers have not been in the water with an orca
since the drowning, said SeaWorld spokesman Fred Jacobs.
SeaWorld's primary concern in the litigation is the
long-term effect that OSHA's requirement of separation of humans
and killer whales could have on the shows. In court papers
SeaWorld called their interaction "integral to its mission."
"We want to continue to display these animals in a way that
assures their health and well-being and is safe for our
zoological staff," Jacobs said in an email. He declined to
comment further, citing the pending litigation.
Human-orca interaction has long been filled with
controversy, revisited earlier this year with the release of the
movie "Blackfish" about Brancheau's death and Tilikum's 30-year
career as an entertainer and stud for other captive whales.
SeaWorld has criticized the film as "inaccurate and misleading."
The Labor Department says SeaWorld knew that close
human-orca contact was dangerous - Tilikum has been involved in
other human deaths - and it routinely took steps to minimize
"The Secretary (of Labor) did not overreach in applying the
general duty clause to SeaWorld in this case because the clause
is meant to address unusual hazards for which there are no
promulgated standards, just like the hazard present here," the
Labor Department wrote in a brief.
Two animal-rights groups - People for the Ethical Treatment
of Animals and the Animal Legal Defense Fund - have weighed in
with an amicus brief to support the Labor Department. The
groups, strong critics of SeaWorld in the past, wrote in the
brief that prolonged captivity has forced the orcas to behave
The case is SeaWorld of Florida v. Thomas E. Perez, No.
12-1375, U.S Court of Appeals for the District of Columbia
For U.S. Department of Labor: M. Patricia Smith, Joseph
Woodward, Charles James, Kristen Lindberg and Amy Tryon.
For SeaWorld: Eugene Scalia, Baruch Fellner, Scott Martin
and Daniel Rathbun of Gibson, Dunn & Crutcher and Carla Gunnin
of Baker, Donelson, Bearman, Caldwell & Berkowitz.