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Dead sperm whale in The Wash, East Anglia, England. © CSIP-ZSL.

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Pilot whales pooing © Christopher Swann

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A spinner dolphin leaping © Andrew Sutton/Eco2

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Sperm whale (physeter macrocephalus) Gulf of California. The tail of a sperm whale.

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WDC team at UN Ocean conference

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I'm looking out over the River Tejo in Lisbon, Portugal, reflecting on the astounding resilience...

SeaWorld Tries Again: DC Court of Appeals Hears Case

SeaWorld’s marathon battle to dismantle the Occupational Safety and Health Administration’s (OSHA) original citation against its orca performances and practices continued on Tuesday, November 12th, as it presented its case in front of the U.S. Court of Appeals in the District of Columbia. Technically, SeaWorld, with the help of a very high profile lawyer Eugene Scalia, is seeking judicial review of the original citation issued by OSHA in August 2010 and upheld by the Occupational Safety and Health Review Commission through layers of review and appeals beginning with the original hearing that occurred in November 2011 in Sanford, Florida.

In less than an hour, the appellate court’s panel of three judges heard OSHA testimony as well as SeaWorld’s plea to overturn the original judgment issued by Judge Kenneth Welsch requiring SeaWorld to abate interactions between performing orcas and trainers by preventing close contact during “water work” and “dry work” activities. SeaWorld responded to the original citation by pulling its trainers out of the water, thereby reducing water work concerns, but continues to allow close contact during its dry work activities. As a result, SeaWorld was cited and fined in June 2013 for a repeat violation under the Occupational Safety and Health Act because of its failure to materially reduce or eliminate recognized hazards that could result in death or serious physical harm to employees.

Just how far SeaWorld must go to abate or mitigate these hazards to ensure a workplace “free from recognized hazards” is at the core of this appeal. The SeaWorld appeal involves the fundamental “general duty clause” of the Occupational Safety and Health Act, which requires employers to provide “a place of employment which (is) free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Stemming from this primary question seeking to clarify the legal standard under the Act, is the question of just how much risk is acceptable in the workplace. SeaWorld has always maintained that while orca behavior is highly predictable, the job of working with orcas carries a calculated risk. Scalia argued that a “100 percent safety test” or standard is not only inappropriately applied under the general duty clause, but harms SeaWorld’s intrinsic business model and corporate product that relies upon close contact, both for the care and welfare of its orcas in its facilities, and for presenting its product (performances) to the public.

Scalia argued that full safety in part depends on employees responding appropriately to rules and circumstances, essentially deflecting full responsibility for employee safety from the employer to the employees undertaking and implementing training programs and protocols. In other words, Scalia argued that SeaWorld’s existing training programs and adapted protocols adequately address safety in its work environment. Unfortunately, this interpretation places the obligation and blame on trainers for their own well-being, safety, and expertise, and provides a convenient scapegoat when training programs go awry and ‘predictable’ orcas go off behavior. It also fails to acknowledge that SeaWorld’s orca training program is not based in written protocols but rather peer-to-peer and hands-on training. By default, this interpretation once again unjustly places blame on Dawn Brancheau and Alexis Martinez for their own deaths.

Why does SeaWorld continue with the appeals process? It is not about the money or severity of the citation. The original citation was downgraded from willful ($75,000 fine) to serious by Judge Welsch, and the fine reduced to $7,000—a mere pittance.  There really is no conclusion other than the fact they seek to return trainers to the water to perform with orcas, to recreate the spectacles that it believes necessary to save their flagging business. Despite SeaWorld’s claims that they have no plans to return to water work, which would suggest their crusade against the OSHA citations are more about principle than reversing any current operational or program adjustments made in their aftermath, their arguments and actions in court suggest it is more than just corporate pride or resistance to regulatory intervention driving their investment in legal action against OSHA.

And what does this mean for the whales? Tilikum and his brethren at SeaWorld continue to languish in their tanks, unwitting victims of an ongoing tug-of-war between government regulators, corporate interests, and a public who increasingly seeks an end to their confinement.

Regardless of SeaWorld’s success in challenging OSHA’s authority to regulate its workplace environment, it is clear that they are losing the battle in the court of public opinion. SeaWorld stocks are sinking, attendance is on the decline, and insiders are selling stock even before third quarter earnings were announced, perhaps indicative of deeper concerns over the future earning potential of the now-beleaguered company.

Until public display is no longer provided an exemption under the U.S. Marine Mammal Protection Act, we are stuck with captivity in the United States. This means we need to work to change the law to reflect a new era—one that recognizes the confinement of whales and dolphins in captivity can no longer be justified under claims of education or conservation. Through grassroots action and congressional interest, there may be hope for a new direction.

Other countries, states and counties have already taken the progressive step towards either banning captivity, prohibiting imports, or outlawing captures of whales and dolphins in their waters. South Carolina in the United States did so in 1992; Maui County in Hawaii in 2002; Costa Rica and Chile in 2005; Croatia and Hungary in 2009; and India in 2013. Switzerland banned the import of dolphins in 2012. Antigua is currently in the process of evaluating legislation to ban captivity and captures. Given these trends, whale and dolphin captivity is looking increasingly obsolete.

As we look towards ending the lifecycle of captivity, WDC calls on all captive facilities to voluntarily commit to not acquiring or importing whales and dolphins from the wild as a first step towards stemming the international trade which continues to devastate local populations. Some facilities, such as the National Aquarium in Baltimore, have already committed to such policies. From there, captive collections can be phased out through the elimination of captive breeding and retirement of surviving individuals to sanctuaries.

Perhaps SeaWorld’s staunch resistance and perseverance against regulatory oversight signal the death throes of an industry whose time is running out. Defiant and defensive until the end, SeaWorld can no longer rely upon its tired arguments to defend its practices. The world has awoken to the possibilities of a new paradigm, and one that does not include whales and dolphins in small concrete tanks. Although the battleground is occurring in the U.S., the ripple effects will extend throughout the captivity industry as facilities realize it is no longer business as usual.

Together, we can do this, and end this cruel and outdated practice.