SeaWorld fights OSHA citations

Company hires attorney son of Supreme Court Justice

Published On: Jul 30 2013 06:19:54 PM EDT   Updated On: Jul 31 2013 06:14:06 AM EDT
Dawn Brancheau
ORLANDO, Fla. -

Calling themselves "the world leader" in the care of marine mammals, SeaWorld attorneys have filed a brief with an appeals court, hoping to get their animal trainers back in the water with the park's famous killer whales. 

To prepare for the challenging legal battle, the company recently hired Washington D.C. attorney Eugene Scalia, a former Department of Labor solicitor who happens to be the son of Surpreme Court Justice Antonin Scalia. 

After trainer Dawn Brancheau was drowned by a killer whale in 2010, the Occupational Health and Safety Administration issued safety citations against SeaWorld.  Last year, an administrative law judge upheld OSHA's recommendation that trainers remain behind physical barriers or a safe distance away from the water when interacting with killer whales during performances.  The park was fined $12,000.

In their briefing filed with the U.S. Court of Appeals in Washington D.C., SeaWorld attorneys argue that the company "brings profound public educational benefit."

"Interacting with nature is not without risk—not when mountain climbing or kayaking, not when sailing or swimming in the ocean, not when visiting our national parks," reads the brief.  "On rare occasions, killer whales can be dangerous. SeaWorld has taken extraordinary measures to control that risk. But it cannot eliminate it while facilitating the interaction between humans and whales that is integral to its mission.

SeaWorld attorneys claim that OSHA does not have the expertise in marine mammal care to prohibit close contact between trainers and killer whales.

"This is not a case where the Secretary identified abatement measures to protect against industrial accidents from unguarded machinery, for example, but an attempt to regulate the interaction between humans and whales," said SeaWorld lawyers.

 SeaWorld also argues OSHA used improper legal methods when issuing its original citations.

"(OSHA'S General Duty 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," reads the brief.  "As the Supreme Court has instructed and courts have repeatedly affirmed, the OSHA Act does not require risk-free workplaces, only the feasible reduction of hazards."

SeaWorld officials said they have instituted extensive emergency procedures to protect trainers’ safety.  The company claims it has had only about a dozen recorded injuries over a history of millions of trainer-whale interactions.

Last month, after OSHA conducted a follow-up inspection at Shamu Stadium, the agency issued $38,500 in additional fines for what it calls repeat safety violations.  SeaWorld attorneys claim their new safety procedures for whale interactions does comply with OSHA requirements.

SeaWorld argues OSHA's insistence that trainers remain behind barriers is not feasible.

"Eliminating contact presents additional hazards to trainers and whales and is tantamount to eliminating trainers’ jobs," writes SeaWorld attorneys.

The appeal comes as the film "Blackfish" debuts in Central Florida next week, drawing new attention to the death of Brancheau and taking a critical look at the marine park.