SeaWorld appeals OSHA citations in Washington D.C.

Oral arguments to be held at Georgetown University Law Center

WASHINGTON - SeaWorld lawyers headed to court Tuesday morning in Washington D.C. for a landmark hearing that could determine whether the company's animal trainers will be allowed to have close physical contact with the marine park's famous killer whales.

[AUDIO: SeaWorld of Florida, LLC vs Thomas Perez]

Washington D.C. attorney Eugene Scalia represented SeaWorld, urging a panel of appeals court judges to overturn a citation that was issued by the Occupational Safety and Health Administration following the death of trainer Dawn Brancheau. OSHA believes the best way for SeaWorld to protect its employees is to keep them behind barriers or a safe distance away from its killer whales.

Months after the killer whale Tilikum drowned SeaWorld Orlando trainer Dawn Brancheau in February 2010, OSHA cited the company for endangering the safety of its killer whale trainers. In June 2012, an administrative law judge upheld the citation and ordered SeaWorld to pay a $7,000 fine. The judge also sided with OSHA's recommendation that SeaWorld keep its trainers behind barriers or a safe distance away when working with killer whales. SeaWorld has appealed that ruling.

During Tuesday morning's oral arguments, Scalia, the son of U.S. Supreme Court Justice Antonin Scalia,  argued that OSHA is abusing its authority by demanding SeaWorld keep trainers a distance away while working with killer whales. As a former Solicitor of the Department of Labor, Eugene Scalia was once OSHA's top lawyer.

Scalia argued that OSHA's attempt to alter their business's mission would be similar to the agency mandating speed limits on NASCAR races or requiring the NFL to ban tackling and blocking.

Although SeaWorld voluntarily barred trainers from swimming with killer whales after Brancheau's death, the company insists that keeping trainers behind barriers or a distance away is not feasible. Scalia says such measures would jeopardize the quality of animal care and increase the danger to employees since the whales would not be as well trained.

Attorney Amy Tryon is representing the Department of Labor in the SeaWorld case. OSHA argued that SeaWorld has already made safety improvements after Brancheau's death that have not harmed the company's business model.

In written briefs filed ahead of Tuesday's hearing, attorneys for both sides focused on the "General Duty Clause" of the Occupational Safety Health Act, which requires employers to provide a place of employment "free from recognized hazards" that are likely to cause death of physical harm.

[VIEW: SeaWorld brief | Secretary of Labor brief | SeaWorld rebuttal brief]

OSHA lawyers said SeaWorld violated the General Duty Clause by exposing trainers to the recognized hazards of working in close contact with killer whales. OSHA cites SeaWorld's own internal reports documenting around 100 incidents of killer whale aggression, including "biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers." The agency believes those incident reports establish a pattern of unpredictable and dangerous working conditions.

OSHA argues SeaWorld's attempts to reduce the risk have failed, leading to multiple injuries and the deaths of two trainers (Besides Brancheau, OSHA includes the death of Alexis Martinez, a trainer employed by a marine park in Spain who was killed by a SeaWorld-owned orca two months earlier).

SeaWorld acknowledges in written legal briefs that there is a risk working with killer whales, but the company believes it has adequately minimized that risk through a comprehensive animal training program and other safety protocols. SeaWorld's attorney argues that the OSH Act does not require an employer to provide a risk-free workplace, but rather reduce significant risks.  As for those incident reports detailing aggressive whale behavior, SeaWorld asserts the documents "do not show recognition of ongoing hazards.  Instead they show resolution of potential problems."

SeaWorld says having close contact with killer whales is integral to their business of attracting, inspiring and educating audiences, while also being necessary to provide the whales with proper veterinary care.

Oral arguments weren't at the U.S. Court of Appeals for the D.C. Circuit, where  SeaWorld's appeal was filed.  Instead, for the first time ever, the chief judge decided to move the proceedings to an auditorium at Georgetown University Law Center so students can witness the debate.

If SeaWorld loses their appeal, the company's final recourse would be to petition the U.S. Supreme Court. In their written briefs, SeaWorld argues that OSHA's general duty clause is unconstitutionally vague and violates employers' due process rights by not providing notice of prohibited working conditions. OSHA contends that SeaWorld's prior knowledge of killer whale aggression towards employees causing injury and death is adequate warning.

Attorneys for SeaWorld and OSHA were given 15 minutes each to present their oral arguments before a three-judge panel Tuesday morning.  It is unknown when the judges will issue their ruling on SeaWorld's appeal.

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