SeaWorld has filed an appeal to challenge parts of a federal judge's ruling which refused to overturn an OSHA violation in the death of Orlando orca trainer Dawn Brancheau. SeaWorld will also try to void government-mandated safety measures that could mean a permanent ban on having trainers perform in the water with killer whales.
Meanwhile, SeaWorld Florida is reopening the same pool where the 12,000-pound bull Tilikum grabbed Brancheau in front of horrified visitors, on February 24, 2010, dunking and ramming her until she died. The location, known as "G-Pool," was long the site of the popular "Dine With Shamu" experience, in which guests pay extra to have a tank-side lunch or dinner, with a more intimate and low-key demonstration by one of the park's orcas.
Brancheau was winding down a "Dine" show when Tilikum grabbed her. Six months later, OSHA slapped SeaWorld with the most severe violation of all -- a "willful" one -- and ordered the park to install safety abatements that provide trainers with equal or greater protection than simply banning them from what is known as "water work" with orcas.
SeaWorld sued the Department of Labor last fall, seeking to overturn the violation and the new safety requirements. In late May, administrative law judge Ken Welsch, who presided over the trial, reduced the violation from "willful" to "serious," but kept all of the mandated abatements intact. It was a "a win for the employees of SeaWorld," Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, said at the time.
At the time, SeaWorld said it had been "exonerated" because Judge Welsch reduced the severity of the violation. But the judge had written 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."
The abatements would stay. SeaWorld had already spent more than $65 million on new technologies such as fast-rising pool bottoms (to beach a rampaging whale with a trainer in its mouth), "spare air" emergency oxygen systems in wetsuits, and a type of flashing, floating robotic rodeo clown to distract an out-of-control orca. A new fast-rising bottom was just completed in the "Dine With Shamu" pool, so apparently SeaWorld is going to put trainers back in the water, at least in that venue.
Most observers, however, agree that OSHA would never certify that such measures can provide equal or greater protection than keeping trainers on dry land, behind a physical barrier.
SeaWorld had until last week to certify that its abatements were in place. Now, this appeal will buy it some more time.
In a written statement, the company criticized the judge for banning water work only during shows, while allowing trainers to still be in the water with orcas for required medical and husbandry procedures. SeaWorld had argued in court, quite convincingly, that it made little difference whether a live audience was watching or not.
"While Judge Welsch's finding rejected both OSHA's original citation level and fine, we feel his decision erred in matters of both fact and law," the statement said. "Among other issues, SeaWorld's petition asks the Review Commission to overturn the finding that draws a distinction between show performances and animal husbandry, which the decision acknowledges requires close contact."
Even so, it's clear that the company is skeptical its new measures will satisfy OSHA and permit a return of the trainers into the water with the ocean's top predator. The stakes are high: the current Shamu show, frankly, is not nearly as spectacular as past shows, where trainers launched far into the air from the rostrums of the powerful whales.
Now this case gets political.
In the highly-charged climate of 2012, SeaWorld Florida v. US Labor Secretary Solis heads to the Occupational Safety and Health Commission, whose three members are appointed by the President. It is up to the commissioners whether to review the ruling or not.
If they do, it will be an interesting election-year showdown. SeaWorld is owned by The Blackstone Group, whose co-founder and CEO Stephen Schwarzman is a high-profile supporter of Mitt Romney (though some people at Blackstone are Democrats). Schwarzman, who held a big-money Romney fundraiser at his Park Avenue apartment, once compared President Obama's economic policies to those of to Hitler.
Romney and Schwarzman are friends and colleagues, having grown wealthy during the heady leveraged-buyout days of the 1980s. Romney was the lead dealmaker at Bain Capital, buying and selling companies to make money for investors, including The Blackstone Group. When asked why he was endorsing the Governor, Schwarzman noted that Romney had earned Blackstone "16 times profit" in their first deal together.
"In finance, that's a way to make friends," he said. Blackstone and Bain currently co-own The Weather Channel, Houghton Mifflin Company, Michaels Stores, and other ventures.
Which raises an interesting question: If Romney wins, will his Labor Department let trainers back in the water with Shamu?
For more information on the dangers of using killer whales in entertainment, please visit the official website for Death at SeaWorld
David Kirby will launch his national book tour at the Barnes and Noble Tribeca store on July 17th from 6-8PM