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SeaWorld vs OSHA goes to Washington DC

November 11, 2013

US-CourtOfAppeals-DCCircuit-SealUpdated November 12, 2013: SeaWorld took its case to Washington D.C. today as they continue the appellate process in an attempt to overturn citations issued by the Occupational Health and Safety Administration (OSHA) following the death of killer whale trainer Dawn Brancheau in 2010. (link to the audio file of today’s oral arguments below)

Eugene Scalia, son of Supreme Court Justice Antonin Scalia, is representing SeaWorld in its appeal against the Department of Labor (DOL), OSHA’s governing body, as they attempt to repeal the federal order and citations that sharply criticized the marine park operator’s safety measures. The abatements required will essentially end SeaWorld’s signature orca/trainer performances.

The younger Scalia, formerly the Labor Department’s top lawyer, along with the law firm Gibson Dunn & Crutcher, went before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit headed by Chief Judge Merrick Garland and Judges Judith Rogers and Brett Kavanaugh. Oral arguments have concluded and the case is in the hands of the judges. It could take as long as several months before a decision is handed down.

The powerhouse legal team is appealing OSHA’s use of the General Duty Clause (an application of the federal OSHA safety law meant to protect workers in unusual circumstances) which OSHA applied in issuing its original citations and fines to SeaWorld. Appeals of Judge Ken Welsch’s original verdict were ultimately upheld by the Occupational Safety and Health Review Commission (OSHRC) leading to this appeal in Washington.

Read SeaWorld’s Appeal documents HERE and DOL/OSHA’s Response Briefs HERE.

LISTEN TO THE FULL AUDIO OF TODAY’S ORAL ARGUMENTS <HERE> (44 min)

To further denote the historical importance of this case- for the first time ever, the U.S. Court of Appeals held oral arguments outside of the annuls of the courtroom and moved the proceedings into a local law school. The court convened Tuesday, November 12 at 9:30 am at Georgetown University Law Center, several blocks away from the U.S. Court of Appeals in Washington, DC. Each side had 15 minutes to present their case.

“We hope that this will be just the first of a series of oral arguments held at District of Columbia law schools, and that these sittings will enhance public understanding of the role of the courts in our constitutional framework,” Chief Judge Garland said in an interview.

Aside from the events inside the courtroom, the upcoming week is pivotal for SeaWorld. Stock shares are sliding- so much so that SeaWorld Entertainment’s Chairman sold off $1.3 million worth of company stock in the past week- ahead of the November 13 filing of SeaWorld’s 3rd quarter financial reports.

SeaWorld stock continues to slide

SeaWorld is doing all it can do to remain silent on every issue concerning trainer deaths and injuries while the public increasingly becomes outraged about the care of orcas in captivity. The documentary film “Blackfish” which debuted at the Sundance film festival in early 2013 has gone on to receive critical acclaim worldwide and recently aired numerous times on CNN. The Wall Street Journal’s “Market Watch” says “The more people see the film “Blackfish,” the deeper stock of SeaWorld Entertainment Inc. dives.” Ironically enough, the DVD of “Blackfish” goes on sale in the U.S. on November 12, 2012. (click HERE for ordering information)

"Blackfish" Available on DVD November 12

“Blackfish” Available on DVD November 12

The film also comes on the heels of the blockbuster book “Death at SeaWorld: Shamu and the Dark Side of Killer Whales in Captivity” by David Kirby. Both David and “Blackfish” producer/director Gabriela Cowperthwaite attempted to speak with SeaWorld prior to producing their works. SeaWorld has declined virtually every opportunity to defend itself,  instead opting to release pre-prepared written statements about the rescue and conservation efforts that are primarily funded by federal grants- not SeaWorld profits- and do not include conservation efforts for killer whales.

Although the immediate reaction of many has been to “Shut down SeaWorld”, that is not The Orca Project’s stance. SeaWorld does provide some benefit to the public and marine life, but their business model NEEDS to change. Their efforts in rescue and rehabilitation of birds, turtles, seals, manatees, sea lions, etc. is important. But SeaWorld could easily and feasibly translate that same care to their cetaceans (orcas and dolphins) by ending breeding programs and provide the best life possible to those in their care until there are no more.

Be sure to follow the latest developments on our SeaWorld vs OSHA page and get up-to-the-minute reports on The Orca Project on FaceBook and Twitter.

More on this story from CNN: SeaWorld challenges ban limiting interaction between whale and trainer

… and David Kirby reports from inside the courtroom: SeaWorld and OSHA Do Battle in Federal Appeals Court

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23 Comments leave one →
  1. December 17, 2013 9:06 pm

    As a paralegal, I must say that I am uneasy with the way this hearing was conducted. First of all, the attorney for OSHA did not seem to be at all prepared to defend the arguments that Seaworld’s attorneys resented. Secondly, the judges seemed to be truly unaware of the magnitude of danger involved in working in close proximity to psychologically damaged killer whales. Their ignorance was proven to me by the fact they they accepted the comparison to the NFL or other close contact sports. I’m also concerned with the judges’ “lack” of understanding that close contact is not intrinsically necessary for the operation of Seaworld. I’m not often one to cry foul, but it sounds like Seaworld’s lobbyists got to them.

  2. December 8, 2013 10:39 pm

    Reblogged this on Sherlockian's Blog.

  3. Hayley Moran permalink
    December 7, 2013 2:57 pm

    Please sign and share to free the orca whales –

    https://www.change.org/petitions/seaworld-inc-whitehouse-humanely-release-the-orca-whales-in-seaworld-to-open-seapens

  4. Berenice Maciel permalink
    November 27, 2013 2:31 am

    knowing what is going on in sea world was the best that this documentary could have done, the people that visit sea world should be well aware that orcas are not meant to be kept in a tank when they are used to being free and not held in a tank forced to do tricks for a “fish” as a treat. We should hold all our standards at the same level, it is animal cruelty when we treat a dog bad and leave him stranded in a car for hours while we go shopping but hold a double standard when we allow sea world to hold a whale for a whole life span in a tank that is equivalent to a car for whale.

  5. Luna permalink
    November 26, 2013 4:37 pm

    I’m from the UK and I spent £5000 on a holiday to Canada and Alaska last year purely to see whales in the WILD. I have always wanted to see orcas ever since I watched ‘Free Willy’ (some 20 years ago!) and it was an absolute dream come true and worth EVERY penny. Not only did I see orcas but I had the pleasure of seeing humpback whales bubble netting and lunging out of the water to swallow up their prey. AMAZING!

    I will NEVER visit Sea World or any other marine park because not only do I disagree with the tiny tanks they are put in, but the whole capture procedure is barbaric. Ripping a calf away from its mum and family is horrific, I can’t imagine what it must be like for them to lose a member of their tightly knit pod.

    Let’s not forget the brutal and inhumane slaughter and capture of whales and dolphins in Taiji, Japan. Take a look peeps and spread the word……..utterly disgraceful.

  6. Jillian Lane permalink
    November 25, 2013 8:29 pm

    Why did SeaWorld’s representative say that there were over 50,000 incidents of recorded contact between trainers and Tilikum in all of his time at SeaWorld and of those there was not one incident of aggression or violence before the death of Dawn Brancheau? Putting aside the fact that he killed Keltie Byrne at Sealand of the Pacific in 1991, getting into specifics of Tilikum’s time at SeaWorld raises the question, what about the death of Daniel P. Dukes in 1999 in Tilikum’s tank? Although SeaWorld tried very hard to make it look like his death was an accidental drowning, the autopsy reveals that his body sustained very brutal, fatal attack injuries including his genitals being torn off. After listening to the recording it seems as though the judges don’t have a very firm grasp on what is really going on at SeaWorld. It is also unfortunate that these whales’ only representation in this appeal is an OSHA representative who seems to lack passion or concern for the subject and seems confused and unorganized.

  7. November 21, 2013 1:36 am

    They need to free the whales and close the parks down. I never wanted to go to that circus (Sea World) because it always seemed so depressing. After watching the movie “Blackfish” I feel totally different. I have 2 masters degrees and am a successful entrepreneur from Houston…. BOYCOTT SEA WORLD & FREE THE WHALES!!! IT is terrible.. WATCH THE MOVIE.. Tell everybody you know to watch the movie because ONLY then will things change for the trainers and for the whales too!

  8. November 19, 2013 12:19 pm

    I sincerely hope that they rule in favor of OSHA. I’ve recently begun to learn about orcas and other dolphins and whales and I firmly believe that it is not right to hold them in captivity. These wonderful animals should be left alone to roam the oceans in peace. I don’t know what makes humans think they have the right to rip an orca calf away from it’s mother and put it in what amounts to a large swimming pool to perform in front of other gawking humans! It’s SO wrong!

  9. Sharon permalink
    November 13, 2013 11:25 am

    Thank you for posting the full audio. This was frustrating to listen to, from standpoints both legal and conservation-driven. It seems like the only acceptable expert witness would have to be someone who studied SeaWorld’s whales in captivity. I’m sure SeaWorld would be *delighted* to have independent scientists come study their captive whales (sarcasm abound) and expose the detrimental effects of living in captivity. It’s also infuriating that SeaWorld constantly claims to the public that conservation and education are its main goals, but will fight to the death in front of appellate judges that the REAL business model is putting people in the water with whales, plain and simple. I really hope these judges do the right thing and make the right decision.

  10. bella permalink
    November 13, 2013 11:12 am

    https://www.change.org/petitions/seaworld-inc-humanely-release-the-orca-whale-known-as-tilikum-to-a-seapen-for-rehab#share

  11. Cory permalink
    November 12, 2013 10:51 pm

    Reblogged this on CoryTeague.

    • November 13, 2013 10:53 am

      Thank you Cory! For anyone who hasn’t read it yet, we highly recommend Cory’s article: “What holds us captive…”
      Very informative, well thought out and well-written.
      http://coryteague.wordpress.com/2013/11/12/what-holds-us-captive-about-blackfish/

      • February 12, 2014 9:00 pm

        Nice of you to recommend it. Just went and read it. Very well written and intriguing.

  12. November 12, 2013 10:32 pm

    I could make several negative comments regarding putting the judges and the attorneys and of course the Sea World CEO and Board of Directors in the pool with Tillikum. That would settle the matter once and for all because they would be terrified to spend a few hours in the pool with Tillikum. I would never ask a worker to do something I would not do.
    The problem now is that we have lots of scientific data and proof of Orca psychotic captivity behaviors and their complex highly evolved brains. We cannot ignore the irrefutable proof offered from renowned and acclaimed marine mammal scientists. People that have spent lifetimes not fifteen minutes examining the issue.
    It appears to be a conflict of interest and ethics violations to have two Scalia family members deciding this issue. It appears as if Sea World is buying a favorable decision. This is not the way a Supreme Court is supposed to act.
    The real true losers in this battle are the whales and dolphins being held prisoners by greedy corporations. The bad human behavior of Sea World has been now duplicated by Russia and Chinese businessmen with no morals. These businessmen are out to profit from whales and dolphin entertainment shows with no regard for employees or the animals they enslave.
    Americans are supposed to be a proud people that are always fighting for FREEDOM so why do we enslave higher intelligent animals like whales and dolphins? I say it is time to empty the tanks and free the whales and dolphins being held in captivity for lifetime sentences. Land of the Free and Home of the Brave….America. Be brave and stop Sea World, Do Not Buy A Ticket, be Free and Empty the Tanks Worldwide.

  13. anonhuman person permalink
    November 12, 2013 9:48 pm

    Much appreciated, the actual audio from todays hearing! Since The Orca Project is a place for all voices to come together, I respectfully submit that-SeaWorld “providing the best life possible to those in their care, until there are no more” can only mean providing the funding for the entire rehabilitation process or something akin to sea pens. I’m pretty darn sure that The Blackstone Group can easily afford the entire rehab. process for every captive marine mammal that they are ultimately and currently responsible for and continue to globally acquire. One can think of it as a great opportunity for Blackstone. It could be much like the opportunity that orcas and other dolphins, whales, etc. have had to entertain us and the opportunity to experience the breeding and maternal process, albeit it at too young an age and too painful a process. Perhaps the leaders of Japan and Russia would also help the funding before the upcoming Sochi and Japanese Olympics, and the next generation of captive dolphins, belugas and seals go on display for our entertainment purposes.

  14. Stephanie permalink
    November 12, 2013 7:55 pm

    I saw blackfish and it really opened my eyes to how badly we are treating these beautiful animals. I have had the opportunity to see Orcas in the wild
    In Washington state, but have not see them in captivity. I think its terrible how SeaWorld gets away with lying to the public on simple subjects such as
    total life span to cover the true effects of what being in captivity has on these animals. The subject of weather or not Orcas should be kept in captivity can be debated all day but I personally would rather see them live longer/ healthier lives in the wild VS paying to see them up close and hearing about them being starved due to performance exc. I truly believe that the reason Tilikum has taken lives is due to the way they are mistreated. Although I am not justify what the whale has done but think it all could have been prevented. I will never visit a SeaWorld and will encourage family/friends to travel to the Orcas environment to experience how truly amazing they are!

  15. Kristen Hall permalink
    November 12, 2013 4:33 pm

    I must say I listed to the audio of the hearing from today and I am disappointed in the lawyer representing OSHA. Scalia (lawyer for SeaWorld) kept saying the expert on wild orcas wasn’t qualified to testify about training orcas in captivity. What should have been pointed out is that Tilikum is a WILD orca who happens to be in captivity. Just because he’s in a cement pool doesn’t mean he’s domesticated and that he’s “forgotten” how to behave as a wild orca (in fact, what he did to Dawn prooves that he has not forgotten). The fact that SeaWorld has eliminated water work with Orcas since Dawn’s death and their attendance has not dropped is proof that water work is not an essential part of their business model. I hate to say this, but the panel of judges seems pretty clueless.

  16. MandaPanda permalink
    November 12, 2013 8:04 am

    I wish this was more widely publicized. I pray for the outcome that best addresses the needs of these beautiful, amazingly intelligent and emotional creatures.

  17. rebecca charles permalink
    November 11, 2013 2:34 pm

    I will be so pleased to see this horrific treatment of marine mammals end!! I am praying for them and the right decision for their lives.

  18. Sue Obenauer permalink
    November 11, 2013 1:20 pm

    There are also people who will argue how their children will never learn anything about whales unless they are able to go visit them in marine parks. I beg to differ with that. There were amazing creatures that roamed this earth called dinosaurs.. Our children never got to actually SEE them or experience them, but know SO MUCH about them. Same thing with whales. I just got back from seeing orcas in the wild in Washington State. I flew there to see them, and saw more than just orca. We saw stellar sea lions, harbor seals, eagles, and Dahl Porpoises. Whale watching is far more affordable and well within my meager salary than I thought possible. Look into it. Take the family- it’s a bucket list item for me and it truly didn’t break the bank. Do your research and discover what’s within your realm. You’ll be doing the right thing.

  19. November 11, 2013 12:01 pm

    I hope this goes well, I have been following this blog since 2010, and it finally feels like things are starting to turn in favour of the whales and their advocates, rather than SeaWorld. I haven’t yet managed to see ‘Blackfish’, but I am currently reading Kirby’s ‘Death at SeaWorld’ and I would recommend it to anyone interested.

    I was once privileged enough to encounter orcas in the wild, near Iceland. I realise that many people will never have this opportunity, which is why they go to places like SeaWorld. Yet seeing a group of orcas playing and socialising together at a short distance from our boat was an experience that touched me deeply. People don’t need to see whales performing cheap tricks in order to appreciate their power and beauty.

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  1. orca whales | Mandys Blog
  2. Blackfish Coming to the U.S. | Marine Science Today

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