In a long-awaited decision in the OSHA versus SeaWorld case, Judge Ken Welsch has ruled that the park's trainers should be protected by physical barriers or some other means providing the same level of safety, when working with killer whales.
The ruling, which was handed down almost two years after Dawn Brancheau was violently killed by the killer whale Tilikum, followed an appeal by SeaWorld over a $75,000 fine for a "willful" safety violation by the Occupational Safety and Health Administration (OSHA), levied six months after Brancheau's death in Aug. 2010.
Although Judge Welsch downgraded OSHA's charge from "willfull" to "serious," and dropped the fine to $12,000, he ultimately upheld the Administration's findings and ruled that all trainers must be provided with a physical barrier (or one of equal protection) during performances.
The ruling is a massive blow to SeaWorld's entertainment parks whose trainer-orca interaction has formed the basis of many of its shows. Furthermore, the almost 50-page ruling, offered some harsh analysis of SeaWorld's behind-the scenes operations.
In the report, which Digital Journal obtained courtesy of award-winning author David Kirby, Welsch said:
SeaWorld holds trainers to a near-impossible standard set by upper management, who engage in a form of Monday morning quarterbacking. Any trainer unfortunate enough to have to file an incident report is subject to second-guessing by his or her superiors, who will always find the trainer did something wrong, otherwise there would be no incident to report.
Welsch called the gravity of the violation very high. "Trainers" he said, "were required to work in close contact with killer whales during performances. The killer whales sometimes engage in unpredictable behavior, including seizing trainers with their mouths, holding the trainers under water, and ramming the trainers while in the water."
As a result Welsch added, "SeaWorld’s operant conditioning program places an unrealistic burden on trainers to recognize precursors and react appropriately to forestall undesirable behavior."
Welsch also called a video that OSHA played at the hearing of an attack by the orca Kasatka on another trainer, as "Chilling." And as for Tilikum, the orca who killed Brancheau, Welsch said "OSHA had established that SeaWorld recognized the hazard created when its trainers worked in close contact with Tilikum during drywork performances," and "the special treatment SeaWorld accords Tilikum" demonstrates he is a "hazard to trainers" the judge said.
A statement from the U.S. Department of Labor welcomed the Welsch's decision:
OSHA’s intent has been to ensure the safety and health of employees who work with SeaWorld’s killer whales in performances. In his decision, the Judge has upheld the OSHA citations.
Author David Kirby who has followed the OSHA-SeaWorld case from the outset and describes the inside operations of the park in his forthcoming book, Death at SeaWorld, is scheduled to appear on Anderson Cooper 360 tomorrow night. Kirby said in a statement a short while ago:
This ruling might have reduced the violation against SeaWorld from “willful” to “serious,” but is by no means a victory for the entertainment park. On the contrary, the judge ruled that “the gravity of this violation is very high,” and that “killer whales sometimes engage in unpredictable behavior, including seizing trainers with their mouths, holding the trainers under water, and ramming the trainers while in the water.”
Even worse for SeaWorld, this ruling upholds safety abatements demanded by OSHA in the original violation. When killer whales go “off behavior,” it is not always possible to get them back under control. That’s why OSHA insisted that SeaWorld ban trainers from performing in the water with orcas, or else install measures that would provide equal or better levels of protection for its workers.
SeaWorld has vowed to return to water work as soon as possible. It has spent at least $65 million on “spare air” systems and fast-rising pool bottoms that would beach a rampaging whale and allegedly let rescuers assist the victim trapped in its jaws. It is difficult to see how these measures could provide equal or better protection than staying out of the water with the ocean’s top predators. SeaWorld will almost certainly appeal this ruling.
Kirby's book, full title: Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity is due for release on July 17.
Advance praise for the book has been garnered from eminent scientists and personalities. Jane Goodall, Ph.D., D.B.E. and Founder of the Jane Goodall Institute recently said:
"As David Kirby so eloquently documents in this timely work, Killer-whale captivity only benefits the captors. It is impossible to read ‘Death at SeaWorld’ and come to any other conclusion.”
As for what SeaWorld will do now, Kirby says:
The ball now lies in SeaWorld's court. It still has the option of appealing the ruling to the full Occupational Safety and Health Review Commission, an independent body that referees disputes between employers and OSHA, but for now its trainers cannot be in the water with its killer whales during performances, unless their safety can be guaranteed.
Judge Welsch's full report is now available online here.