Commentary by Jennifer Mishler and Sandy McElhaney
In 2010, following an investigation into the death of SeaWorld trainer Dawn Brancheau, the Occupational Safety and Health Administration (OSHA) slapped SeaWorld with safety citations and $75,000 in fines. OSHA determined that SeaWorld had willfully violated employee safety by putting their trainers in the water in close interaction with the captive orcas.
In 2011, SeaWorld appealed the citations, which were upheld by Judge Ken Welsch, though he reduced their fine to $12,000 and downgraded their violation from “willful” to “serious.” The events leading up to the trial and the trial itself were the subject of the documentary Blackfish, recently aired on CNN.
SeaWorld continues to fight OSHA, though, because the shows featuring orcas held captive at their parks are a source of millions of dollars in annual revenues. Earlier today, SeaWorld appealed OSHA’s citations in a United States Court of Appeals for the District of Columbia Circuit before a three-judge panel. SeaWorld argued that OSHA’s decision applies “20/20 hindsight,” and that SeaWorld could not have predicted orca Tilikum’s aggression toward their trainer.
But SeaWorld knew Tilikum’s story. He was brutally taken from the wild and his pod at about two years of age in November 1983, this past weekend marking 30 years since his capture. Before Tilikum pulled Brancheau under the water and killed her in February 2010, he was also involved in the death of trainer Keltie Byrne at SeaLand of the Pacific in 1991. In 1999, Tilikum was found with the body of a man who entered SeaWorld Orlando and Tilikum’s tank after the park closed. This is what SeaWorld knew before Dawn Brancheau was killed.
Still, despite this and the more than 100 other documented orca-trainer incidents in their parks, SeaWorld argued today that their trainers should be allowed in the water for “close interaction” with the whales. Eugene Scalia, head lawyer on SeaWorld’s legal team and son of Supreme Court Justice Antonin Scalia, said that SeaWorld “exists to provide that opportunity to view that close interaction between whales and humans,” saying that audiences find the bond between the two “deeply moving.” SeaWorld claims to provide education about ocean life, but it has become clear that what they’re really providing is entertainment at the expense of ocean life, and at the expense of their own employees because it brings in money.
While Scalia compared the risks involved in SeaWorld’s shows to those in the NFL, not only do both sides of a football game know the risks involved, but they are also both willing participants. We don’t know of any football players held against their will and forced to play.
SeaWorld maintains that OSHA’s restrictions change the nature of their “product,” while OSHA argues that SeaWorld is a workplace and, under the Occupational Health and Safety Act, has a responsibility to eliminate recognized hazards to the greatest extent possible.
If SeaWorld loses their appeal, the last option will be to bring their case to the Supreme Court. Regardless of who wins – SeaWorld or OSHA – it is clear that the orcas will lose. These intelligent, socially complex animals will continue to live dramatically shortened lives in barren tanks and be forced to perform for food.
We have seen the cruelty behind marine mammal captivity before, and we see it daily in Taiji, Japan, where the dolphins who are not chosen for lives in captivity are brutally killed in front of their families. Earlier this week in Taiji, Sea Shepherd’s Cove Guardians documented the capture of a large pod of bottlenose dolphins. After being held overnight in a tiny cove, 12 of the dolphins were selected by trainers for captivity and the rest slaughtered for human consumption. Our volunteers, positioned above the killing cove, witnessed the trainers working hand-in-hand with the killers to select the “prettiest” dolphins for captivity. There can be no denying the link between the Taiji dolphin slaughter and the captive marine mammal industry, of which SeaWorld is a key player. If SeaWorld truly cared about the welfare of marine mammals, today’s hearing would not have been about the corporation’s right to interact with captive whales as part of its shows, but rather the rights of whales to live in the ocean. How many more have to die before you get it, SeaWorld?