The U.S. Court of Appeals in Washington, D.C., denied SeaWorld’s appeal of safety citations issued by the U.S. Occupational Safety and Health Administration (OSHA), following the death of veteran trainer Dawn Brancheau, in Orlando, Florida.
After the orca Tilikum dragged Brancheau into the water and killed her in February 2010, OSHA cited SeaWorld for endangering the safety of its orca trainers. In June 2012, a judge upheld the citation and ordered SeaWorld to pay a $7,000 fine. The judge also agreed with OSHA’s recommendation that SeaWorld keep its trainers behind barriers, or a safe distance away when working with orcas, otherwise known as ‘killer whales’ – a standard that effectively make it impossible for trainers to swim with the whales.
SeaWorld appealed the ruling, but the court ruled Friday that the company’s petition for review was denied. OSHA lawyers said that SeaWorld violated the General Duty Clause by exposing trainers to the recognized hazards of working in close contact with killer whales. OSHA cites SeaWorld’s own internal reports documenting around a hundred incidents of killer whale aggression – including “biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers.” The agency believes those incident reports establish a pattern of unpredictable and dangerous working conditions.
In a 2-1 vote the United States Court of Appeals in Washington, D.C., agreed with OSHA’s measures. “The administrative record establishes that SeaWorld did not lack fair notice because the hazard arising from trainers’ close contact with killer whales in performance is preventable,” the judges wrote.
The two judges who voted to uphold the citation, Judge Judith W. Rogers and Chief Justice Merrick Garland, were nominated to the court by former President Bill Clinton. The lone dissenting judge, Judge Brett Kavanaugh, was appointed by former President George W. Bush. Kavanaugh said that OSHA is overstepping its bounds and has no more of a right to impose restrictions on a specialized industry like SeaWorld than it does to regulate tackling in the NFL. SeaWorld also claimed that forbidding unprotected contact between its trainers and whales was comparable to banning tackling in the National Football League or forcing NASCAR to post speed limits.
In upholding the physical barrier recommendation, the court rejected SeaWorld’s argument that federal regulators were trying to force the company to fundamentally change its business.
“The remedy imposed for SeaWorld’s violations does not change the essential nature of its business,” Rogers wrote in a twenty-three page ruling. “There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures.”
In a written statement, SeaWorld said it was “obviously disappointed” by Friday’s decision and has not yet determined whether it will appeal to the U.S. Supreme Court.
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