WASHINGTON -- A federal ban on contact between killer whales and their trainers, imposed after a bull orca drowned a SeaWorld trainer, faces a challenge in federal court Tuesday as the marine park fights to keep its signature attraction.
SeaWorld, famous for its "Shamu" killer whale shows, says the Labor Department judge went too far when he prohibited "close contact" between the killer whales and their keepers after the Feb. 24, 2010, death of veteran SeaWorld Orlando trainer Dawn Brancheau.
Brancheau died after Tilikum yanked her from a platform into a pool during the "Dine with Shamu" show and thrashed her until she drowned. The whale held Brancheau in his mouth for nearly 45 minutes before other trainers could extricate her body.
The Labor Department's Occupational Safety and Health Administration investigated Brancheau's death and cited SeaWorld for "willfully" violating federal safety laws that require a workplace to be free from "recognized hazards."
Tilikum, SeaWorld's largest whale at 12,000 pounds, had killed at least once before coming to SeaWorld. In that incident at a park in Canada in 1991, a trainer slipped into a pool and Tilikum pulled her under repeatedly, drowning her. In a second incident, a man who sneaked into the park after closing was found dead in Tilikum's pool.
The federal government says SeaWorld knows Tilikum is dangerous and prohibits trainers from working in water more than knee-deep with the animal. With other whales, trainers can swim in their pools. SeaWorld's trainers have dozens of close interactions daily with the park's seven killer whales.
Although Administrative Law Judge Ken Welsch downgraded the citation from "willful" to "serious," he fined the marine amusement park $7,000 and barred "close contact" between SeaWorld staff and killer whales.
The judge found that the "emotions inspired by the grandeur of humans interacting with killer whales" did not justify the risk.
SeaWorld, which is represented in court by Eugene Scalia, son of Supreme Court Justice Antonin Scalia, argues in a legal brief that human contact with the killer whales is educational, integral to the care of the whales and answers "an elemental human desire to know, understand and interact with the natural world."
Many activities that put humans in contact with nature, such as mountain climbing or kayaking, carry risk, SeaWorld argues. The law requires SeaWorld to minimize risks, not eliminate them, court papers say.
"On rare occasions, killer whales can be dangerous," Sea World wrote. "Sea World has taken extraordinary measures to control that risk."
SeaWorld compares prohibition of interaction between whales and humans at SeaWorld to barring blocking and tackling in the NFL or posting speed limits on the NASCAR circuit. Barring close contact would change the nature of SeaWorld's business, the lawyers say.
"SeaWorld has always made killer whales the centerpiece of its mission," the legal brief said.
Attorneys for OSHA argue that killer whales' behavior is so unpredictable that SeaWorld's scientifically unproved training methods are not enough to mitigate the risks.
The agency cited several "near misses" when trainers working with killer whales at SeaWorld were injured, including an incident in 2006 at San Diego SeaWorld during which killer whale Kasatka grabbed a trainer by the foot and repeatedly dragged him to the bottom of the pool for eight minutes until the trainer broke free and swam to safety.
"Forty-plus years of history at the SeaWorld parks have yielded occasion after occasion where captive killer whales have not responded as their trainers intended," the attorneys wrote in OSHA's legal brief. "The hazard in this case was well-known to SeaWorld and fully capable of being prevented."