Tragedy at SeaWorld THE CASE, THE MOVIE, AND THE FUTURE FOR CAPTIVE WHALES

SeaWorld Case Study

SeaWorld Case Facts/Timeline

1983 – Two-year old Tilikum captured in the North Atlantic

1991 – SeaLand (Canada) Death (Tilikum)

1991 – SeaLand closes, SeaWorld buys Tilikum

1991 – 2013 – Numerous incidents with killer whales at SeaWorld

SeaWorld Case Facts/Timeline

1999 – Death of Daniel Dukes (Tilikum)

2009 – Death of Alexis Martinez at Loro Parque (SeaWorld whale)

2010 – Death of Dawn Brancheau (Tilikum)

2010 – OSHA cites SeaWorld for violating general duty clause

Occupational Safety and Health

Act of 1970 U.S. DEPARTMENT OF LABOR

Occupational Health and Safety

Administration (OSHA)

29 C. F. R. 1910(d)(1)

Section 5. Duties 5(a)(1)

Each employer shall furnish to each of his employees

employment and a place of employment which are free

from recognized hazards that are causing or are likely to

cause death or serious physical harm to his employees.

Occupational Health and Safety

Administration (OSHA)

Ensure safe and healthful working conditions for working men

and women by setting enforcing standards and by providing

training, outreach, education, and assistance.

Administered by Assistant Secretary of Labor, reports to the

Secretary of Labor

Covers most private sector employers and their workers

A worker may file a complaint if he or she believes there is a

serious hazard in the workplace

Killer Whales

Can live to 90 years

Live in pods, groups of related individuals

Pods communicate with each other through clicks, whistles, and pulsed calls

Each pod possesses a unique set of calls learned and transmitted among individuals

Calls maintain group cohesion and serve as family badges

NOAA

Killer Whales

Endangered under the ESA

Protected under the MMPA

Threats Today

Lack of food

Chemical contaminants

Oil spills

Disturbances from vessel

traffic and sound

Live capture (other than

U.S.) NOAA

Tilikum

Captured wild

Implicated in the death at SeaLand

SeaLand sold Tilikum to SeaWorld under the assumption

he would not be exhibited

Separate protocols and regulations related to his care

and training

New hires received the “Tili-talk” - caution

Not de-sensed to water, no waterwork

Tilikum

On February 24, 2010, witnesses saw Tilikum pull Dawn

Brancheau into the pool, drowning her, and keeping her

body in the pool for more than one hour.

First report from law enforcement said she drowned.

Witnesses disputed that report; SeaWorld spokesperson

then blamed Brancheau for having a long ponytail.

Claimed Tilikum grabbed it and pulled her in.

Some witnesses disputed that version; saw Tilikum grab

her arm and pull her in.

The Case

OSHA cites SeaWorld for two violations:

1. Failure to equip two stairways with standard stair railings

on each side.

Exposed animal trainers to drowning hazards

$5,000 penalty

2. Violation of general duty

Hazards created when trainers engage in “drywork”

Hazards created when trainers engage in “waterwork”

$70,000 penalty

Four Elements to Prove

1) A condition or activity in the workplace presented a

hazard.

2) The employer recognized the hazard.

3) The hazard was likely to cause death or serious physical

harm.

4) A feasible means existed to eliminate or materially

reduce the hazard.

Four Elements to Prove

1) A condition or activity in the workplace presented a

hazard.

Established with the death of Dawn Brancheau

2) The employer recognized the hazard.

Deaths at other parks, other whales (1992, 1999, 2009)

Training manuals (inherent risk statement)

Separate Tilikum training

100 Incident reports, 12 injuries

Four Elements to Prove

3) The hazard was likely to cause death or serious physical

harm.

Established with the death of Dawn Brancheau

4) A feasible means existed to eliminate or materially

reduce the hazard.

Install physical barriers or require a minimum distance

between trainers and killer whales

SeaWorld argued that their operant conditioning is adequate.

Educational and Inspirational justification to continue.

(2012 WL3019734)

The Administrative Case

The Court affirms OSHA’s Citation 1 alleging serious

violation of 29 C.F.R. § 1910.23(d)(1)(iii) – faulty stairs

$5,000 Penalty

The Court affirms OSHA’s Citation 2 alleging a willful

violation of § 5(a)(1) of the Act – general duty

$70,000 Penalty

SeaWorld Appeals

The Appellate Case

The Court Holds:

Substantial evidence supports determination that “drywork”

and “waterwork” with killer whales are recognized hazards

under OSHA

ALJ did not abuse its discretion in crediting Secretary’s

expert with regard to the aggressive behavior of killer whales

Substantial evidence supports ALJ’s finding that it was feasible for the operator to abate the hazard

General duty clause was not unconstitutionally vague as

applied to operator.

SeaWorld Petition Denied, required to create barriers

The Dissent

Kavanaugh

“The Department departed from tradition and

stormed headlong into a new regulatory arena.”

Contact between trainers and whales is the same as

contact between NFL players and NASCAR drivers

and their cars.

OSHA has no authority to regulate these types of

activities – “tackling is a part of football, speeding is a

part of stock car racing …”

SeaWorld Case Facts/Timeline

2013 – SeaWorld loses case and appeal

2013 – Blackfish movie released

2013 – 2017 – Backlash results in financial losses and lower attendance at SeaWorld

2017 – Tilikum dies

Why this Case is Important

Exposed SeaWorld’s misrepresentations

Illustrated power of the media and its impact

on the public

Illustrated power of the public

Illustrated the reality of keeping captive wild

animals

Moved the needle

SeaWorld Today

2019 New CEO

Television and other media opportunities

Hotels, new parks, and operations

International expansion

Thrill rides versus family exhibits

Orcas, Shamu, Blackfish, and Manby’s legacy

End to Orca breeding

More educational shows

Larger orca habitats

Orlando Weekly, 2/11/19