Killer whale proximity to trainer key to shows, SeaWorld tells court


By Lacey Johnson

WASHINGTON, Nov 12 (Reuters) - Putting killer whales andtheir trainers together in close proximity is an important partof SeaWorld's shows, the marine park operator said on Tuesday inasking a federal court to overturn an order to put more spacebetween orcas and humans.

The case resulted from the February 2010 death of DawnBrancheau, a 40-year-old marine life trainer at SeaWorldEntertainment Inc's Orlando park, and a U.S. LaborDepartment safety order that came after that tragedy.

Brancheau drowned when a 12,000-pound (5,440-kg) bull killerwhale, or orca, named Tilikum pulled her into a pool.

Close interaction between whales and humans is "the premiseof SeaWorld's entertainment," the company's attorney, EugeneScalia, told a three-judge panel of the U.S Court of Appeals forthe District of Columbia Circuit.

The Labor Department order is like the "government came inand told the NFL (National Football League) that close contacton the football field would have to end" for safety reasons,said Scalia, son of Supreme Court Justice Antonin Scalia.

Six months after Brancheau's death, the Occupational Safetyand Health Administration (OSHA) said SeaWorld had exposed itstrainers to a hazardous environment, violating the OccupationalSafety and Health Act's "general duty" clause.

OSHA, part of the Labor Department, ordered SeaWorld to makechanges, including physically separating trainers and orcasduring performances.

OSHA also fined SeaWorld $75,000 for three safetyviolations. An administrative law judge of the OccupationalSafety and Health Review Commission reduced the fine last yearto $12,000 after downgrading one of the violations.


The "general duty" clause says employers must keepworkplaces free from recognized hazards. The clause "cannot beused to force a company to change the very product that itoffers the public, and the business it is in," SeaWorld wrote inan appellate brief.

The Labor Department defended its invoking of the clause,saying the safety hazards at SeaWorld could be prevented withoutthreatening the company's survival.

"The distinction is that the acts that SeaWorld claims areinherent to their business model are, in fact, not inherent totheir business model," said Department of Labor attorney AmyTryon during the hearing at Georgetown University's Law Center.

"We know that SeaWorld is able to make a reduction in riskto its employees because SeaWorld has done that."


Scalia said that SeaWorld had modified its shows followingBrancheau's death, and trainers were no longer allowed to enterdeep water with killer whales.

"What is the nature of the product?" asked Judge BrettKavanaugh during Tryon's remarks. "That's the concern I haveabout this case."

Scalia said the ruling against SeaWorld should be dismissedbecause a previous judge relied on testimony from an unqualifiedexpert witness with limited knowledge of whale behavior incaptivity.

The appellate judges have yet to rule.

Two animal-rights groups - People for the Ethical Treatmentof Animals and the Animal Legal Defense Fund - have filedwith an amicus brief to support the Labor Department. The groupswrote in the brief that prolonged captivity has forced the orcasto behave aggressively.

Shares in SeaWorld were up 2.4 percent at $31.96 inmid-afternoon trading.

The case is SeaWorld of Florida v. Thomas E. Perez, No.12-1375, U.S Court of Appeals for the District of ColumbiaCircuit.

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