SeaWorld appeals restrictions on its work with orcas

Hearing Tuesday at D.C. circuit court is likely to draw a large audience

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WASHINGTON — Florida's SeaWorld has a killer whale of a case coming before an influential court.

Represented by a high-powered attorney with a famous pedigree, SeaWorld is challenging a federal penalty imposed after the February 2010 death of trainer Dawn Brancheau. The veteran trainer died after being dragged underwater by Tilikum, a bull orca based at SeaWorld's Orlando, Fla. facility.

Animal rights activists and corporate officials alike are watching closely, as the U.S. Court of Appeals for the District of Columbia Circuit prepares for the crucial oral arguments Tuesday. More than a monetary fine is on the line.

"There are certainly broader implications for SeaWorld," Jared Goodman, an attorney for the PETA Foundation, an animal rights group, said Friday. "They're continuing to fight this, because they are trying to get their trainers back into the water with the whales."

The 30-minute argument Tuesday morning will itself be a bit of a show, as the appellate court has relocated it to the Georgetown University Law Center. Eugene Scalia, the Labor Department's former top lawyer and the son of Supreme Court Justice Antonin Scalia, is representing SeaWorld.

Substantively, the case involves the Occupational Safety and Health Administration's response to Brancheau's death. OSHA, which is part of the Labor Department, imposed what's now a $12,000 penalty, as well as additional safety requirements. The company's appeal of the OSHA penalty was directed to the D.C.-based appellate court.

For SeaWorld, the proposed fine amounts to a drop in the bucket. More troublesome for the company is the Labor Department's accompanying order prohibiting "close contact" between its staff and killer whales during performances. If it remains intact, that prohibition could sap some of the crowd-thrilling zing at SeaWorld shows.

"For us the case is about the safety of our trainers and the welfare of our animals. The ways in which we interact with these whales is critical for both," Fred Jacobs, a vice president at SeaWorld Parks & Entertainment, said in an email Friday. "It really comes down to what SeaWorld has done every day for nearly 50 years: share killer whales with our guests in ways that are enriching, educational and inspiring."

More broadly still, the case could set a precedent for other regulatory actions on the workplace. Rulings by the D.C. circuit court can be influential because they cover the broad range of federal government administrative actions.

The 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." A key question is whether SeaWorld violated this duty in having a 120-pound trainer become so intimate with a 12,000-pound, 22-foot-long marine mammal.

On Feb. 24, 2010, Brancheau, 40, was leading a routine afternoon show at SeaWorld's Shamu Stadium. As subsequently recounted by the Labor Department, she was reclining on a platform a few inches below the surface of the water. Tilikum was supposed to mimic her behavior by rolling onto his back. Instead, Tilikum grabbed Brancheau and pulled her off the platform into the pool.

Tilikum held on to Brancheau for about 45 minutes before other trainers could coerce the animal into a smaller pool and retrieve the trainer's battered body.

Labor officials want SeaWorld trainers to work behind barriers or maintain safe distances between themselves and the whales, which SeaWorld fears would undermine the show.