April 11 (Bloomberg) -- SeaWorld Entertainment Inc. lost its bid to overturn U.S. limits on trainers’ contact with killer whales imposed after one of the animals drowned an amusement park employee during a 2010 show.
The Occupational Safety and Health Administration’s requirement that trainers not be in direct contact with the whales during shows without protective barriers or keeping a distance was justified, the U.S. Court of Appeals in Washington ruled today. OSHA acted under the “general duty” clause of a workplace safety law, which obligates employers to maintain safe working conditions.
Existing safety measures “were inadequate to eliminate or materially reduce the hazard to SeaWorld’s trainer employees performing with” the animals, U.S. Circuit Judge Judith Rogers wrote for the majority of the three-judge panel.
The OSHA rule followed the Feb. 24, 2010, death of Dawn Brancheau, a trainer at the Orlando, Florida, park who was pulled underwater by a 12,000-pound killer whale named Tilikum and drowned during a performance
SeaWorld is disappointed by the ruling and “no decision has been made on whether we will appeal,” Fred Jacobs, a SeaWorld spokesman, said in an e-mailed statement.
“The D.C. Circuit’s decision today to the effect that SeaWorld must keep trainers out of the water signals an end to the days of trainers standing and riding on orcas for human amusement at SeaWorld,” Jared Goodman, an attorney for the People for the Ethical Treatment of Animals, said in a statement.
Tilikum had already been tied to two deaths before Brancheau’s. In a 1991 incident, the first recorded death of a person caused by a killer whale, also called an orca, Tilikum grabbed a trainer after she fell into the whale’s pen at a park in Canada and plunged her underwater multiple times, according to an OSHA filing.
In 1999, a man was found dead in Tilikum’s tank in the morning, draped across the whale’s back. The cause of death was listed as hypothermia and it was unclear whether the whale played a role in the man’s death, according to a court filing.
Risks during Tilikum’s performances could be addressed by requiring trainers to work behind barriers, according to OSHA court filings. For performances involving other killer whales, OSHA required either barriers or maintenance of an unspecified minimum distance from the animals, according to court records.
An administrative law judge upheld the core of OSHA’s findings and fined SeaWorld $12,000.
“The Labor Department is pleased that the courts have consistently upheld our position that killer whales pose a danger to employees who are not adequately protected,” said Jesse Lawder, a spokesman for the department, which includes OSHA.
In its appeal, SeaWorld argued that OSHA went too far, imposing requirements that would damage its business.
“The general duty clause cannot be used to force a company to change the very product it offers the public, and the business it is in,” Eugene Scalia, a lawyer for the company, wrote in a brief filed before the appeal.
“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,” Scalia said.
U.S. Circuit Judge Brett Kavanaugh dissented from the ruling, arguing that the contact limits were a paternalistic government intrusion on sports and entertainment activities.
“The bureaucracy at the U.S. Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football” and impose other restrictions on entertainment, Kavanaugh wrote.
Rogers said that it was Kavanaugh who was overreaching by lumping SeaWorld with sporting events.
“No one has described SeaWorld’s killer whale performances as a ‘‘sport’’ and a legal argument that the ‘‘sports industry’’ should not be regulated by OSHA can be raised when and if OSHA attempts to do so,” Rogers wrote.
SeaWorld, based in Orlando, has come under increasing pressure from animal rights activists over the past year following the release of “Blackfish,” a documentary about Brancheau’s death. Some musicians, including Willie Nelson, canceled appearances at its parks this year.
On April 8, California lawmakers put off for at least a year a vote on a bill that would have banned keeping killer whales in captivity. SeaWorld, which has one of its namesake parks in San Diego, argued there is no evidence whales are being harmed and that the animals and society benefit from continued research and education.
SeaWorld, which owns eleven parks in the U.S., was purchased in 2009 by Blackstone Group LP. The New York-based private equity firm has been reducing its stake since a public offering of shares last year and currently owns 22 percent of outstanding shares.
SeaWorld fell 1.5 percent to $29.99 at 4:15 p.m. in trading in New York.
The case is Sea World of Florida LLC v. Perez, 12-01375, U.S. Court of Appeals for the District of Columbia (Washington).