WASHINGTON — The case of the killer whale that dragged a SeaWorld trainer to her death seemed to divide a top appeals court Tuesday.
In a closely watched challenge to federal safety rules, at least one of three appellate judges sounded explicitly sympathetic to Florida-based SeaWorld. The company that also runs marine parks in Texas and California is fighting the rules imposed by the Occupational Safety and Health Administration following the February 2010 death of trainer Dawn Brancheau.
“It does seem the authority being asserted here would give OSHA considerable power to change the sports and entertainment industry,” Judge Brett Kavanaugh said.
A generally conservative appointee of President George W. Bush, Kavanaugh repeatedly questioned during the 30-minute oral argument whether federal safety officials went too far in their actions against SeaWorld. To prevail, though, SeaWorld needs at least two members of the three-judge panel from the U.S. Court of Appeals for the District of Columbia Circuit, and the company faced some doubts as well as support Tuesday.
In particular, Chief Judge Merrick Garland pushed back against SeaWorld attorney Eugene Scalia’s likening of the federal safety rules to federal officials ordering changes in inherently dangerous sports like football or ice hockey. Imposing new safety requirements, Garland said, has not changed the fundamental nature of the sports.
“I remember a time when ice hockey goalies didn’t wear marks,” Garland said. “They all wear masks now.”
Garland was appointed by President Bill Clinton. The third member of the panel hearing the case Tuesday at Georgetown University Law Center, Judge Judith Rogers, was also a Clinton appointee.
Sometimes called the nation’s second-highest court, the D.C.-based court of appeals is especially influential because it rules on a wide range of federal administrative actions. The eventual SeaWorld ruling, while it might be narrow, also could prove broadly significant for other companies in potentially hazardous industries that challenge safety efforts by federal regulators.
“The judge here,” Scalia told the panel, “inappropriately applied a 100 percent safety test.”
Scalia is the son of Supreme Court Justice Antonin Scalia.
The SeaWorld case involves the “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.” Federal officials used this authority to constrain SeaWorld following Brancheau’s death.
On Feb. 24, 2010, the 40-year-old Brancheau was leading an afternoon show at SeaWorld’s Shamu Stadium in Orlando, Fla. Brancheau, who weighed about 120 pounds, was reclining on a platform that extended into the pool and a few inches below the surface of the water. Tilikum, who weighs about 22,000 pounds, was supposed to mimic her behavior by rolling onto his back.
Instead, Tilikum grabbed Brancheau and pulled her into the pool.
Tilikum clenched onto Brancheau for about 45 minutes before other trainers could draw the animal into a smaller pool and retrieve the trainer’s body.
“The hazard we believe was obvious came to fruition when someone was killed,” Labor Department attorney Amy S. Tryon told the court. “SeaWorld’s training program does not take the predatory instinct out of these animals.”
It was the second fatality directly attributed to Tilikum.
In February 1991, while housed in Canada, Tilikum grabbed a trainer and kept submerging her until she was drowned. The next year, SeaWorld bought Tilikum and moved the animal to Orlando, where officials instituted special safety procedures.
In legal filings, moreover, Labor Department attorneys reported there have been “some 100 occurrences of killer whales biting, hitting, lunging toward, pulling on, pinning, dragging and aggressively swimming over SeaWorld trainers.”
“There have been deaths before,” Rogers noted Tuesday. “With this particular killer whale, there is a problem.”
Scalia, while acknowledging the “inevitable background hazard” of working with large marine mammals, also stressed that there’s been a marked reduction in safety incidents involving the killer whales. The company further contends that it shouldn’t be required to eliminate all risk associated with an activity that’s essential to the company’s work, any more than the Labor Department could post speed limits at Daytona or require two-hand touch in the NFL.
“OSHA is not empowered to order a stark change in the business practices (of SeaWorld),” Scalia said, explaining that “the premise of the business model of SeaWorld is to show close contact” between human and marine mammal.
Tryon on Tuesday countered that “SeaWorld is nowhere near being put out of business” by the imposition of additional safety requirements that include barriers, minimum distance requirements and a ban on in-water direct contact between human trainers and marine mammals.
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