SeaWorld vs OSHA

Thank you for visiting The Orca Project’s “SeaWorld vs. OSHA” page. Here we will keep you updated on all the latest developments, testimony, links, documents, video, etc as this case moves forward. Also… be sure to follow us on FaceBook and Twitter (@TheOrcaProject) for all the latest news and reports.

ALERT! April 11, 2014:

The U.S. Court of Appeals in Washington, DC has upheld the fines and citations issued by OSHA against SeaWorld and has shot down SeaWorld’s bid to overturn the lower court’s ruling that the fines and citations were justified.

US Court of Appeals Decision: SeaWorld vs OSHA

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Click HERE to read the full 35 page decision by the U.S. Court of Appeals in PDF format.

The fines issued by OSHA are negligible to the multi-billion dollar business SeaWorld Parks and Entertainment, but the restrictions placed on orca/trainer interactions will FOREVER change the look of killer whale shows. And WHEN the next tragedy occurs, SeaWorld will be sunk.

Should SeaWorld choose to appeal this decision, their only (and final) avenue would be an appeal to The United States Supreme Court where SeaWorld’s attorney Eugene Scalia would likely argue the case before the 9 member panel, including his father, Supreme Court Justice Antonin Scalia.

For more on the Court’s decision:

Court denies SeaWorld appeal of OSHA citations ~ WKMG Channel 6 Orlando

Another Legal Setback For SeaWorld: Trainers Must Stay Out Of Orca Tanks ~ TheDodo.com

SeaWorld Loses (Again) in Fight Against OSHA ~ David Kirby, Author, “Death at SeaWorld”

Court upholds ruling against SeaWorld (video) ~ NBC News Today Show

November 12, 2013: SeaWorld appealed to the U.S. Court of Appeals in Washington, DC today to overturn the lower courts ruling to uphold the fines and citations issued by OSHA:  Oral arguments have concluded for both sides. The case is in the hands of the 3-Judge panel. Stay tuned for updates.

Read all the details and listen to 44 minutes of audio from today’s oral arguments here: SeaWorld vs OSHA goes to Washington DC

SeaWorld is appealing the broad application of the federal OSHA safety law meant to protect workers in unusual circumstances which OSHA used in issuing its citations to SeaWorld. The case came before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.  The venue for the proceedings was at the Georgetown University Law Center, Washington, DC.

Eugene Scalia, son of Supreme Court Justice Antonin Scalia, is representing SeaWorld in its fight against a federal order that sharply criticized the marine park operator’s safety measures.

Read more here: “SeaWorld appeal could force taming of its popular orca shows after trainer’s death” ~ Reuters and here in the Orlando Sentinel

July  17, 2012:  SeaWorld fails in its bid to appeal the May, 2012 verdict in the SeaWorld vs OSHA case:

SeaWorld Appeal Fails in Orca Trainer Death ~ David Kirby

Read more about the appeal here:

SeaWorld appeals killer-whale safety ruling ~ The Orlando Sentinel

SeaWorld Appeals Verdict in Trainer’s Death, Reopens Pool Where Killing Occurred ~ David Kirby, Huffington Post

 July 11, 2012: Big Week Looms Ahead for SeaWorld ~ David Kirby, Huffington Post

SeaWorld’s appeal to the Occuaptional Safety and Health Review Commission (15 pages) can be read below or by clicking HERE

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View this document on Scribd

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MAY 30, 2012:  The SeaWorld vs OSHA verdict is in and Judge Ken Welsch has upheld OSHA’s citations in the SeaWorld vs OSHA case.

Read more about it here:

SeaWorld Ponders Defeat in OSHA Ruling. Trainer Death May Alter Industry Forever ~ The Orca Project

Labor Department Fires Warning Shot At Animal Entertainment Industry ~ David Kirby, Huffington Post

Landmark Decision in OSHA v SeaWorld Case with Interviews Discussing the Implications ~ Voice of the Orcas

Federal Judge Blasts SeaWorld in Death of Orca Trainer ~ David Kirby, author of Death at SeaWorld

Shamu Show Smackdown ~ Tim Zimmermann, Outside Magazine

Judge: SeaWorld’s trainers must be protected from killer whales ~ Elizabeth Batt, Digital Journal

SeaWorld found responsible in the case of trainer Dawn Brancheau’s death ~ Candace Calloway Whiting, Seattle PI

Judge rules SeaWorld killer-whale trainers must be protected by physical barriers ~ Jason Garcia, Orlando Sentinel

Court Ruling A Severe Blow To SeaWorld Captivity Shows ~ Whale and Dolphin Conservation Society

The judge’s decision (47 pages) can be read below or by clicking HERE

View this document on Scribd

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THE BACK STORY:

In August, 2010, OSHA issued citations to SeaWorld for apparently placing profit above employee safety following the death of Mrs. Brancheau who was brutally killed by Tilikum, a nearly 12,000 pound (5,443 kg) killer whale (Orcinus-orca) on February 24, 2010.

The citations, included fines totaling $75,000 for safety violations including the maximum $70,000 penalty for the “Willful” act of knowingly placing its employees at risk, a charge that has major implications beyond the monetary value, which is not substantial for the multi-billion dollar marine park. The stunning announcement rekindled the ongoing debate of keeping these intelligent, highly-social beings in captivity for entertainment purposes. It has also sparked a growing number of former SeaWorld employees to speak out about the culture of working with orcas and the secrecy that shrouds the marine mammal entertainment industry.

SeaWorld continues to fight the OSHA citations. The first round of a hearing before an Adminstrative Law Judge wrapped up on September 23, 2011, reconvened on November 15, 2011 and conluded on November 18, 2011. The citations against SeaWorld were upheld by Administrative Law Judge Ken Welsch and now SeaWorld has appealed the case to the U.S. Appeals Court in Washington, DC.

HISTORY:

Here, we have highlighted some of our top stories, investigations, interviews and posts as they relate to the ongoing case between SeaWorld and OSHA followed by day by day updates of testimony from the hearings held in Sanford, Florida in 2011:

• SeaWorld Killer Whale Trainer Attack Video Goes Viral – Watch the full 15 minute video from 2006 of Ken Peters being repeatedly dragged to the bottom of the pool by killer whale Kasatka. Administrative Law Judge Ken Welsch described the footage as “chilling”.
• SeaWorld Ponders Defeat in OSHA Ruling. Trainer Death May Alter Industry Forever – In May, 2012, Judge Ken Welsch upholds OSHA’s citations in the SeaWorld vs OSHA case.
• Seeing is Believing: Tilikum’s Lonely Life after Dawn– There has been deep concern for how Tilikum’s isolation may affect the well-being of this intelligent, social animal. After observing Tilly and his caretakers, is SeaWorld living up to its claims of a fulfilling, enriched life?
• SeaWorld Trainer Death Theory Debunked as a Ponytail Tale– Ever since the brutal death of Dawn Brancheau, the media has erroneously cited the marine park’s claim that killer whale Tilikum pulled her into the water by her ponytail. But why is this false theory important to SeaWorld? We present the facts of what really occurred and was observed by witnesses on that day.
• SeaWorld’s Proposed Multi-Million-Dollar Safety Gimmicks Don’t Measure Up– SeaWorld’s announcement that they are spending tens of millions of dollars on new safety devices, draws skepticism from former trainers, marine mammal professionals and journalists.
• Keto and Tilikum Express the Stress of Orca Captivity– Former SeaWorld trainers Dr. John Jett and Dr. Jeffrey Ventre provides detailed observations, powerful photos and strong statistical calculations, for a look behind the scenes of Marine Parks and their ability to provide environments adequate for keeping captive killer whales alive.
• Killer Whale Tilikum Returns to SeaWorld Shows After 3rd Death– a little more than a year after brutally killing veteran orca trainer Dawn Brancheau, Tilikum returnes to performances.
• The Case Against Killer Whale Captivity– in collaboration with The Orca Project, Dr. Naomi Rose, Senior Scientist at the Humane Society has released another groundbreaking paper “Killer Controversy: Why Orcas Should No Longer Be Kept in Captivity”.

Also, in revealing exclusive interviews with The Orca Project, former SeaWorld trainers expose the facts behind the secretive marine mammal entertainment industry, trainer injuries and deaths as well as the truth behind Killer Whales in captivity:

• Exclusive Interview #1: Former SeaWorld trainer John Jett PhD talks Tilikum with T.O.P.
• Exclusive Interview #2: Former SeaWorld trainer Carol Ray talks orca safety & separation with T.O.P.
• Exclusive Interview #3: Former SeaWorld trainer Samantha Berg and the Perils of Orca Captivity (part 1) (part 2)

For a collection of documents from the investigation of SeaWorld trainer Dawn Brancheau’s death including autopsy report, Orange County Sheriff’s Office Investigative Report, USDA-APHIS and OSHA freedom of information act documents, click HERE.

Former SeaWorld trainer Samantha Berg and wildlife expert Jeff Corwin discuss killer whale trainer safety and orca profiles on the NBC Today Show below:

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Click HERE to view The Orca Project’s collection of SeaWorld’s orca profiles.

And be sure to visit the following stories on the SeaWorld investigation by Tim Zimmermann of Outside Magazine:

• The Killer in the Pool– When a 12,000-pound orca named Tilikum dragged his SeaWorld trainer into the pool and drowned her, it was the third time the big killer whale had been involved in a death. Many observers wondered why the animal was still working. But some experts, knowing the psychological toll of a life spent in captivity, have posed a darker question: Was it human error, or can a killer whale choose to kill?
• Diary of a Killer Whale– Tim Zimmermann digs a little deeper into some of the questions surrounding the tragedy of Tilikum and Dawn Brancheau.
• Blood in the Water– On December 24, 2009, a 6,600-pound SeaWorld orca killed trainer Alexis Martínez at a marine park in the Canary Islands. Two months later, trainer Dawn Brancheau was killed by an orca at SeaWorld Orlando. With the OSHA trial on trainer safety at SeaWorld Orlando starting September 19, Tim Zimmermann asks: Should Martínez’s death have served as a warning about the lethal potential of killer whales being trained for our entertainment?

SEAWORLD vs OSHA: Sanford, Florida:

SeaWorld vs. OSHA Day 1 (Monday, September 19, 2011):

SeaWorld employees were litteraly brought to tears during day 1 of the SeaWorld vs. OSHA hearing:

Reports from the Sanford hearings include:

Safety of SeaWorld trainers questioned in OSHA hearing– Jason Garcia of The Orlando Sentinel reports in the Sentinel’s sister newspaper the Chicago Tribune that OSHA attorneys will question the “ponytail theory“.

Hearing begins in death of killer whale trainer– CNN reports on the opening of the SeaWorld vs. OSHA hearing.

Video: Death at Sea World: (Shown below) Author David Kirby and former SeaWorld trainer  Carol Ray on AC360 with Anderson Cooper on CNN talk about the brutal killing of Dawn Brancheau and the false “PonyTail Theory”. CNN requested SeaWorld to appear on the broadcast. They refused:

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Death at SeaWorld — Should Videotapes of the Killing be Released?- David Kirby, author of the soon-to-be released book “Death at SeaWorld – Shamu and the Dark Side of Killer Whales in Captivity” (St. Martin’s Press) discusses the upcoming battle to show the underwater video of Dawn’s horrific death in the Huffington Post.

Dawn Brancheau’s SeaWorld Death Leads To Fight Over Safety Citation– Mike Schneider reports in the Huffington Post

The question: Whose fault was the death of Dawn Brancheau– Michael Mountain of ZOE Nature reports on the testimony of day 1.

Below, Courtney Vail, Campaigns Officer and captivity expert for the Whale and Dolphin Conservation Society (WDCS) recaps day 1 events:

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SeaWorld vs. OSHA Day 2 (Tuesday, September 20, 2011):

Fredy Herrera, a security officer at SeaWorld Orlando who was working at Shamu Stadium on the day Brancheau was killed, testified that it appeared to him she was pulled in by her left arm, as we have reported HERE at The Orca Project.

SeaWorld guard: Killer whale appeared to pull trainer underwater by her arm, not hair– Jason Garcia of The Orlando Sentinel reports on Day 2 of the SeaWorld vs OSHA hearing.

Ponytail theory takes another dive– Michael Mountain of ZOE Nature reports on the testimony of day 2.

A brief report on NBC News in Tampa, Florida regarding the “Ponytail Theory”:

WDCS Campaign Officer and captivity expert Courtney Vail recaps the events of day 2 below:

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SeaWorld vs. OSHA Day 3 (Wednesday, September 21, 2011):

The morning began with a report on NBC’s Today Show, continuing the coverage of yesterday’s testimony which essentially puts the “ponytail theory” to rest, including highlights with The Orca Project’s Colleen Gorman. Watch the Today Show video below or by clicking HERE.

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Today’s testimony included former SeaWorld Animal Curator Chuck Tompkins discussing previous killer whale/trainer  incidents. Under examination by OSHA attorney John Black, it was discovered that SeaWorld has not kept accurate records of incidents. The following help disclose SeaWorld’s failures:

Not all whale aggression made it into SeaWorld’s incident log, lawyers say– Jason Garcia of the Orlando Sentinel reports on today’s testimony describing the ommissions in SeaWorld’s incident reports.

SeaWorld Scrutinized Over Whale Incident Reports– A mid-day report from Orlando, Florida’s NBC affiliate WESH 2 looks at todays’s testimony on “incident reports”. Read their story and watch the video (including comments from The Orca Project) which shows that SeaWorld has side-stepped safety issues.

… and video of the 2006 attack on trainer Kenneth Peters at SeaWorld SanDiego was played in the courtroom. Judge Ken Welsch called the video “Chilling”. Watch the full 15 minute video shown in court HERE.

Author David Kirby dicusses this with CNN’s Anderson Cooper on AC360. Watch below or click HERE:

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When orcas attack– Michael Mountain of ZOE Nature reports on the testimony of day 3.

WDCS Campaign Officer and captivity expert Courtney Vail recaps the events of day 3 below:

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SeaWorld vs. OSHA Day 4 (Thursday, September 22, 2011):

SeaWorld trainer Jan Topoleski took the stand today to describe what he witnessed. Topoleski was acting as the “safety spotter” for Dawn during her interaction with Tilikum during the “Dine with Shamu” show and he reports to have witnessed the initial take-down. His recollections today seem to differ than those originally reported to the Orange County Sheriff’s Office regarding the “ponytail theory“. His report on what occurred that day has been previously been called into question based on all other eyewitness reports of how Dawn was pulled into the water, including SeaWorld employees and park visitors. The Connell family, who captured the infamous final images of Dawn and Tilikum on video have also previously reported that Topoleski was not watching when Dawn was pulled in and they had to alert him that Dawn was taken down. You can read the Connell family’s reports to the Orange County Sheriff’s Office in our collection of documents HERE.

Additionally, emotional testimony was given by Shana Groves, one of the first SeaWorld trainers to report to the scene, and Dr. David Duffus, a killer-whale expert and professor at the University of Victoria in British Columbia — to buttress their contention that trainers cannot be expected to accurately predict a whale’s behavior at all times. It was also announced by Judge Welsch that the hearing will not be able to conclude on Friday (day 5) as anticipated and there will need to be an extension of the hearing, which may take place next week, or even in October or November. Today’s testimony is covered here:

Spotter saw SeaWorld trainer struggle to free her hair– Jason Garcia of the Orlando Sentinel reports on today’s events.

Author David Kirby appeared again tonight on CNN’s AC360 with Anderson Cooper to discuss today’s testimony and Jan Topoleski’s apparent conflicting accounts of Dawn being taken into the water by her ponytail. Watch the CNN video below or click HERE.

Vodpod videos no longer available.

WDCS Campaign Officer and captivity expert Courtney Vail recaps the events of day 4 below:

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It’s still about the ponytail– Michael Mountain of ZOE Nature reports on the testimony of day 4.

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SeaWorld vs. OSHA Day 5 (Friday, September 23, 2011)

Today, Judge Ken Welsch announced the hearings will reconvene on November 15. It was originally scheduled to conclude today, however it’s anticipated that there will be an additional week of testimony. Dr. David Duffus, professor at the University of Victoria in British Columbia returned to the stand for cross-examination by SeaWorld attorneys and said he was alarmed by how close Brancheau was to Tilikum when he grabbed her, stating “I don’t want to second-guess an experienced trainer, but I would not, given my experience with killer whales, … be that close to Tilikum. No way on Earth”. Day 5 coverage below:

SeaWorld-OSHA hearing in recess until mid-November– Jason Garcia of the Orlando Sentinel reports on today’s events.

Official says SeaWorld put whale trainers at risk– By Barbara Liston (Reuters) – A government safety official said on Friday that Florida’s SeaWorld knew it was putting trainers at risk by letting them interact with a 12,000-pound killer whale named Tilikum.

“If you end up in the water with Tilikum, you’re going to die”- Michael Mountain of ZOE Nature reports on the testimony of day 5, including the “Tilly Talk” that’s given to all new orca trainers at SeaWorld Orlando.

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SeaWorld vs. OSHA, Round 2 Previews

Is working closely with killer whales in a marine park dangerous for trainers? Author and journalist Tim Zimmermann delves into this question in his report “OSHA Goes After SeaWorld” in Outside Magazine Online.

As SeaWorld safety hearing resumes, feds focus on killer-whale shows – Jason Garcia of the Orlando Sentinel looks at the upcoming strategy and the future of killer whale shows.

“SeaWorld’s Training Methods; Why Trainer Injuries Are Inevitable”– Seattle PI reporter Candace Calloway Whiting explains why.

Below, WESH channel 2 in Orlando reports on the resumption of the hearings:

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SeaWorld vs. OSHA Day 6 (Tuesday, November 15, 2011)

The hearing resumed with OSHA calling trainer Ken Peters and two other SeaWorld San Diego employees to the stand, although SeaWorld tried unsuccessfully to prevent their testimony, Judge Ken Welsch allowed it. Mr Peters was involved in an injurious encounter in 2006 with a killer whale named Kasatka which spurned an OSHA investigation which initially cited “The contributing factors to the accident, in the simplest of terms, is that swimming with captive orcas is inherently dangerous and if someone hasn’t been killed already it is only a matter of time before it does happen.” (click HERE to read the original CAL-OSHA report). SeaWorld successfully had this language removed from OSHA’s original conclusions. (click HERE to read the revised CAL-OSHA report)

Mr Peters testified that they can predict killer whale behavior 99.9% of the time.

Michael Scarpuzzi, SeaWorld San Diego’s Vice President of Zoological Operations, was deemed a hostile witness by the judge for giving brief and evasive answers.

“OSHA questions SeaWorld San Diego killer-whale trainer as safety hearing resumes”– Jason Garcia of the Orlando Sentinel reports on the resumption of the SeaWorld vs OSHA hearings.

“OSHA hearing into killer whale trainer’s death resumes”– CNN covers the resumption of the hearings.

“SeaWorld returns to court to defend killer whale shows”– Orlando News 13 reports on today’s events.

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SeaWorld vs. OSHA Day 7 (Wednesday, November 16, 2011)

As today’s hearing got underway, OSHA concluded calling it’s witnesses, and as a result, SeaWorld attorneys filed a motion to have the citations against them dismissed. They also asked Judge Ken Welsch not to consider Dawn Brancheau’s death in his ruling, because it happened at the conclusion of a “Dine with Shamu” show. SeaWorld attorney Carla Gunnin said even though there was still a crowd, “the announcer had already told them the show was over.”

Brancheau’s widower Scott, who has been in the courtroom for all the proceedings, was visibly upset at the notion.

The Judge denied the motion, refusing to dismiss the case,and SeaWorld began presenting its side.

Trainer Jenny Mairot was their first witness to take the stand. You can read about her testimony here:

“Judge won’t dismiss OSHA citation; SeaWorld mounts its defense of trainers’ ‘water work’ with killer whales”– Jason Garcia of the Orlando Sentinel reports on today’s heated testimony.

“SeaWorld Trainer: Tilikum ‘easy-going, congenial”– Orlando News 13 reports as SeaWorld’s first witness is called to the stand.

“How Did SeaWorld Florida Handle Waterwork After Alexis Martinez Died?”– Author and journalist Tim Zimmermann, who is reporting live from the hearings, questions the timeline described in court regarding the suspension of waterwork after Alexis Martinez died at Loro Parque, and the resumption of waterwork at SeaWorld Parks following that equally tragic event.

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SeaWorld vs. OSHA Day 8 (Thursday, November 17, 2011)

SeaWorld’s knowledge of the precursors to another killer whale attack were called into question, including their handling of killer whale/trainer interactions following the death of trainer Alexis Martinez at Loro Parque 8 weeks prior to Dawn’s death.

Because the Loro Parque incident was under-reported in the media, it appears that SeaWorld’s protocol had changed from what was typically followed after highly-publicized incidents that occurred here in the U.S., where trainers were routinely pulled from the water for long periods of time following an attack or injury.

Although Alexis Martinez was killed by Keto, a SeaWorld owned orca who is on loan to the marine park in the French Canary Islands, trainers in Orlando were only pulled from the water for two days; a fraction of the time that trainers were not allowed to interact with killer whales following less injurious incidents when the media widely reported the event.

The “Ponytail Theory” was also called into question as Kelly Flaherty Clark, curator of animal training at SeaWorld took the stand. Although the controversial theory that Dawn was pulled into the water by her ponytail has been been debunked, SeaWorld has tried to show they have mitigated the danger by requiring that trainers wear their hair in buns.

Read more about today’s testimony here:

“OSHA accuses SeaWorld of being influenced by media”– Orlando News 13 reports on today’s events.

“Possible ponytail dangers on SeaWorld’s radar before drowning”– although some of the facts (and title) of this report are skewed and incorrect, Reuters reports on today’s testimony regarding the influence of ponytails on trainers.

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SeaWorld vs. OSHA Day 9 (Friday, November 18, 2011)

The Seaworld vs. OSHA case concluded today and is now in the hands of Judge Ken Welsch. It could take several months before he renders a decision.

Today, Chris Dold, vice president of veterinary services for Orlando-based SeaWorld Parks & Entertainment Inc provided testimony including an admission that about 14 of 20 orcas at SeaWorld require antiseptic flushes of their drilled teeth after breaking them on the surfaces of the concrete pools and during interactions with other whales.

SeaWorld later called Jeff Andrews, associate curator of mammals for the San Diego Zoo and a former SeaWorld San Diego killer-whale trainer to the stand as an expert witness recruited for the case. The Orca Project will provide more in-depth details of his questionable testimony in follow-ups, but here is a review of todays accounts:

“SeaWorld-OSHA hearing ends; decision months away”– Jason Garcia of the Orlando Sentinel reports on today’s testimony and the conclusion of the SeaWorld vs OSHA hearings.

Is working closely with killer whales in a marine park dangerous for trainers? Author and journalist Tim Zimmermann recaps his observations from the courtroom in his report “OSHA Goes After SeaWorld, Part 2” in Outside Magazine Online.

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We urge former and present trainers, marine mammal park employees (in the U.S. and abroad), scientists, authors, individuals and the media to contact us at info@theorcaproject.com to continue this important work. Confidentiality is assured if you wish to remain anonymous.

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There are so many more developments occuring behind the scenes here at The Orca Project and we will keep you posted as information and events unravel. November should prove to be eye-opening and and a great step forward in ending the unecessary and unjust practice of orca captivity.