US Court of Appeals
District of Columbia
OSHA's Legal Brief vs SeaWorld
Beginning 12 November 2013
Incidents Occurred Regularly for Twenty Years Despite SeaWorld’s Efforts to Prevent Them
SeaWorld’s argument that its safety protocols and operant conditioning program provide sufficient protection to its employees is disproven by the 600 pages of incident reports documenting unanticipated and undesirable killer whale behavior with trainers. The reports describe some 100 occurrences of killer whales biting, hitting, lunging toward, pulling on, pinning, dragging, and aggressively swimming over SeaWorld trainers. SeaWorld claims the frequency of such incidents has tapered off over time, but there have been incidents every year but two since 1988, culminating in trainer deaths in 2009 and 2010.
The incident reports not only document harmful killer whale behavior, but also show that, time after time, SeaWorld had no explanation for why an incident occurred and was ineffective at preventing similar or even identical behavior from happening again. Although not all incidents resulted in serious injury, a number were chillingly similar to incidents with less happy endings. One example of whale aggression that continued regularly over twenty years is whales grabbing trainers’ feet or legs, often pulling them into or under the water.
Operant Conditioning Does Not Keep Trainers Safe
SeaWorld depends almost exclusively on operant conditioning to ensure safe
interactions with its captive killer whales. As the implementers of operant conditioning, trainers are thus responsible for their own safety and are “the primary source of management’s knowledge.
Through operant conditioning, trainers are expected to recognize precursors to aggressive or
unwanted behavior and to respond appropriately, whatever that may mean (when presented with unexpected behavior by a killer whale, “the trainer has to make a judgment there on the spot as to how to deal with a new scenario.”).
Unfortunately, operant conditioning is an imperfect system. It has 2 major flaws:
1. Killer whales do unpredictable things and
2. Trainers make mistakes
These facts are amply documented in the incident reports. Examples include:
A: “I think this is one of those situations where we will never quite understand the intent of [the whale’s] movement. I cannot rule out that it was done either on purpose or by accident. I think we have learned our lesson of our unpredictability of our animals even in the best of situations.”
B. “Knootka is a very unpredictable whale.”
C. “Because [the whale’s] never done anything like this, no one was expectingit.”
D. “As evident by this episode, our whales should never been [sic] viewed as routine, nor predictable.”
E. “I am still very confused that mistakes like this can be made by our senior trainers.”
F. “[The trainer] put himself in a very compromising situation.”
G. “[The trainer] should never have attempted to get out of the water while the whale still had a hold of her sock.”
SeaWorld argues that it learns from each incident and attempts to prevent similar
recurrences. However, as the incident reports demonstrate, SeaWorld is not as successful as it purports to be in preventing recurrences of dangerous killer whale behavior. In addition, SeaWorld’s “learn as you go” approach means that trainers are continually at risk from novel or unanticipated whale behaviors.
SeaWorld appears proud of the fact that its employees “controlled their own exposure to the alleged hazards,” calling this a “culture of empowerment.” However, placing the responsibility for employee safety on the employees themselves is, as the ALJ correctly pointed out, in contravention of the OSH Act. “An employer cannot shift [OSH Act] responsibility to its employees by relying on them to, in effect, determine whether the conditions under
which they are working are unsafe.” ("Final responsibility for compliance with the requirements of this act remains with the employer.”).
Likewise, the fact that some employees “testified that they felt safe” does not mean that they were safe. “The particular views of work[ers] are not necessarily, and often times are not the best determination as to what is safe and what is unsafe.”
Finally, SeaWorld contends that it cannot be held responsible for mitigation of the hazard posed by close contact with killer whales because all of the potential harm to its employees comes from “exceptional and unpredictable whale behavior.”
SeaWorld even suggests that Ms. Brancheau’s death was beyond the company’s control. (“SeaWorld could not have predicted this terrible incident”).
But the whole point is that SeaWorld knows killer whale behavior is unpredictable. Given the known unpredictability of killer whale behavior and the record of past incidents, it was entirely foreseeable that an event like Dawn Brancheau’s death could occur. That Tilikum attacked Ms. Brancheau without providing the “precursors” SeaWorld relies on shows the failure of operant conditioning to keep trainers safe; it does not render Ms. Brancheau’s death – or the hazard of close contact with killer whales – unpreventable.
SeaWorld’s Emergency Procedures Do Not Keep Trainers Safe
The second major failing in SeaWorld’s operant conditioning program is
that the emergency rescue procedures meant to “recall” or distract a whale from
dangerous behavior have proven to be grossly inadequate. The incident reports
document at least seventeen instances, dating to 1989, where killer whales ignored
attempts to “recall” them from unwanted behavior.
Most recently, recall attempts were useless in the deaths of both Alexis Martinez and
Dawn Brancheau. SeaWorld’s emergency procedures are contained in its “Animal Training
SOP.” When an emergency occurs, trainers are to sound a siren, after which “the senior ranking trainer should attempt to establish control of animal(s) in the environment with recall stimuli.” These “recall stimuli,” which SeaWorld has been using at least since the late 1980s, include trainers slapping the water and the sound of “recall tones.” The killer whales are supposed to respond to these signals by “calmly swimming to [the] stage.”
As the incident reports recount, however, and as SeaWorld employees admitted at the hearing, these procedures are ineffective in most serious emergencies. Kelly Flaherty Clark admitted that both a recall tone and recall slaps were attempted when Dawn Brancheau was in the water with Tilikum; she also admitted that there was no expectation that they would work.
Brian Rokeach agreed:
Q: So, Sea World knows from experience that emergency callback procedures performed while the whale is in a heightened state, if you will, will rarely succeed in getting the whale tocome back?
A: I guess – I’m sorry, there hasn’t been a lot of success in that specific scenario.
In an incident in 2004, killer whale Kyuquot repeatedly swam over trainer Steve Aibel. Mr. Aibel wrote: “[The whale] blocked my exit from the pool and sat in front of me. I asked for a recall tone and paired it with a point to control. There [sic] were both ignored. There were two more recall tones and three or four more hand slaps. All were ignored.” Ex. C-6 at 749. Indeed, SeaWorld staff apparently decided later that these recall tones and hand slaps did nothing but agitate the
One (unidentified) SeaWorld commenter observed, “Let’s face it, in these types of incidents, I don’t recall any whale responding to any hand slap, food bucket, or any other distraction we tried to implement.”
SeaWorld continued to use recall tones and hand slaps for more than twenty years even though such techniques were demonstrably unable to keep trainers safe. As the ALJ found, “[d]espite the repeated failures of the recall signals, SeaWorld continued to rely on them to protect its employees.”In short: Two killer whales trained under SeaWorld’s operant conditioning program killed two trainers two months apart. Under these circumstances it cannot be said that SeaWorld’s training program has reduced the recognized hazard to a significant degree. It clearly did
not eliminate the recognized hazard. The Secretary has established SeaWorld’s safety training program, both for killer whales and for its trainers, is inadequate as a means of feasible abatement.
This factual finding is supported by substantial evidence and should not be disturbed by the Court.
When compared to the actions of the four Orcas (Kotar, Canuck II, Kasatka and Katina) that had not yet been subjected to the operant conditioning and were placed in the public petting pool in 1980 where they interacted with thousands of park visitors with no trainer oversight for over a year and no one was ever hurt, it would appear that it is the operant conditioning of these whales in the 3 decades following this that changed them and actually is what put the trainers in danger.ReplyDelete
I spent thousands of hours getting to know the four during that year and was grabbed by the arm in the same manner as Dawn Brancheau over a dozen times by all of them while playing with them and earning their trust and was not injured in any way. One of them was Kasatka, the one in the first picture above dragging down Ken Peters in 2006.
According to Sea World records she is now considered a “problem animal” and I will attest that she wasn’t before 3 decades of operant behavior training.
Did Sea World place the public at high risk by putting these animals in a public display as they did? I was one of the public who was repeatedly exposed to them and I would say I did not feel I was in danger.
Sea World is at fault for the injuries to their staff because of trying to make these Orcas into something they are not, captive performing show animals forced to perform tricks for their daily food for human entertainment in undersized pools. It is actually surprising that more humans have not been killed or seriously injured in the last 3 decades by these highly intelligent animals.
I too got to know these Orcas across 1979 and 1980 and will add this specific example of their sensitivity and consideration at that time.Delete
On our first encounter, as I was hanging out over the water, Canuck II came up within inches of my face and opened that big toothy mouth. I felt intimidated but started rubbing and patting around the periphery, slowly working towards putting a hand inside. Every time the Orca disengaged, he would back away first, closing his mouth only after I was completely clear. This also happened for most of my 2nd visit, until I was confident enough to be playing with his tongue and rubbing his gums.
Then, the Orca started slowly closing his mouth, giving me the opportunity to leave my hand inside or withdraw. I decided to trust, and he gripped my hand hard enough to hold me firmly but without pain. He began slowly backing into the pool. I let my body stretch farther and farther until, just short of falling in, I resisted a bit. The Orca let off the pressure enough my hand slid out. This invitation to join them was repeated twice more over the course of knowing them.
In other words, the Orca gave me time to get over being intimidated while minimizing what had caused the intimidation. Only then did he test my level of trust. He allowed me opportunity to back out of the test, and he allowed me to decline his invitation to join him in the pool, even though he was in complete control.
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Treating all beings humanely is everyone's concern. Or should be.ReplyDelete
I say let them all go back to the sea where they belong, stop making money off of them . You have made them your slaves set them free.ReplyDelete
This is so ridiculously out of control and people continue to spend hundreds of thousands of dollars...thank you for your article!ReplyDelete
One incident is one to many. This company only cares about greed and profit with no account for the animals or the trainers. It is time to set them all free and stop this barbaric practice of using human or animals for entertainment, greed and profit. It is pure animal abuse and why $ea World has not shut down immediately after Dawn was brutally murdered (yes that is what it was) is a crime. Who is accountable for all these infractions. NO ONE.ReplyDelete
WHAT’S WRONG WITH SEA WORLD.ReplyDelete
Anyone in the dolphin training business knows that Sea World is the top of the pile, the Mount Everest of dolphin training facilities. Also known is Sea World has the most spectacular and highly trained shows in the captive dolphin industry. Sea World is known worldwide to have the ” best shows” in the world, there is no comparison to the caliber of the shows at Sea World to any other captive dolphin shows on the planet. All the performing animals at Sea World are considered the most highly trained, highly polished show animals to be seen. At Sea World the animals jump higher, do more and better flips and work together in the most highly synchronized manner not achieved at any other Dolphin Show. Sea World shows must be perfect; at least that’s what the front office thinks. This perfection comes at a price.
Making the animals perform to their maximum limit every show is extremely stressful and frustrating for any performing animal, especially marine mammals. Making an animal jump 15 feet into the air when the same jump at 10 feet is just as spectacular and the public doesn’t know the difference. The shows and the training system at Sea World are very strictly controlled, extremely regimented and very demanding. Former trainers and other employees have described working at Sea World as almost being in the military where every minute of everyday is tightly controlled and totally scripted. Former trainers also described a training system that will tolerate nothing less than perfection. Animals that do not measure up during shows are worked between shows until they get it right. Sea World performers can be compared to Olympic athletes that must perform to their maximum each time they are called upon. This constant performing at the very physical limits of any animal exacts a heavy toll both physically and mentally. The amount of energy expended to lift an 8000 pound animal 15 feet out of the water instead of just 10 feet is probably close to 50 percent higher for the animal. And the public wouldn’t notice the difference! If the trainers at Sea World had to do the tricks instead of making the animals do the tricks, and they are tricks not behaviors, the shows would be a lot different. Usually only the trainers know when something doesn’t go just right during the show the public usually doesn’t have a clue unless it’s something very very serious. The shows are all written, choreographed and scripted by management, with only the final product in mind. The trainers just make it happen!
Lolita, the killer whale at the Miami Seaquarium does one of the most pathetic shows I have ever seen. Lolita only does a handful of very simple tricks; she breaches but does not get her whole body out of the water. She does a few speed runs the twirling trick called dancing and at the end of her show she does her slide out onto the stage and she only does two shows a day. And yet the paying guests still have a wonderful time and seem to enjoy the show very much, so that proves the public doesn’t expect that much for a show. So why overwork your animals? Maybe that’s why Lolita has survived as long as she has in that tiny tank! The entire show presented by the Miami Seaquarium is a
joke. The Flipper show is sophomoric at best. The top deck show is a few jumps a few vocalizations and some fluke slaps. The Golden Dome Sea Lion show is the worst I’ve ever seen it is truly pathetic! The rest of the captive dolphin facilities shows all around the country are just as bad and some even much worse than the Miami Seaquarium.ReplyDelete
So why does Sea World try so hard to be perfect? To have the highest jumps and flips the most synchronized performances when the rest of the industry is so far beneath them? If Sea World would just dial it back a bit maybe the attacks would stop or at least lessen. To much pressure and stress is being created by the attempt to achieve perfection, the animals are paying the price and displaying the consequences. How many more dolphins at Sea World have too “get up on the wrong side of the tank” and hurt or kill a trainer too be heard?
Thank you for sharing this. It is a great argument on why the trainers should not be allowed back in the water. I hope the Appellate Court sees it the same way. If not, there will be more deaths.ReplyDelete
tilly will kill again given the chance.....ReplyDelete
Tilly will be lucky if he ever gets to even see any living creature one mile from him again. It would not surprise me if SeaWorld were adding extra chemicals to his tank with the pool filtration system... wait and see, one day he will die of liver failure or something. One less problem for them...Delete
I´m sure thats why Keiko died. Most pro-captivity call the Keiko effort a failure but his death must have been the long term consequences of living in the conditions and water he was living in... nothing to do with him being in the ¨scary ocean¨.
I agree that SeaWorld had subjected its trainers to very dangerous conditions, as they force them to make Orca perform tricks perfectly or not be fed,and to keep Orca captivity in pools that are too small, dangerous, not enriching and isolated from their family and forced to breed with other Orca. But I am more concerned about the state of mental and physical health of the Orca themselves, rather than safe working conditions for trainers, of which the trainers have a choice to be there or not.Sure I want the trainers safe, but most I want NO trainers and want the Orca released, into sea pens and rehabilitated for release to the ocean. If SeaWorld shows this little respect for its employees then imagine how they treat their animals. It appears Orca are stressed, food deprived, over worked, underfed, forced to beach themselves for extended periods of time. raped, kidnapped from their mothers, bred too young, not protected from attacks by other Orca, not cared for properly, and kept in inadequate pools and more. No SeaWorld employee should ever get in the water with the Orca ever again and the Orca should be retired from it forced slavery by Seaworld. No less would be acceptable. Please advocate for these animals. Write letters, sign petitions, comment on posts, watch the documentary Blackfish, buy the DVD and share it with friends to educate them on what has been kept secret and hidden by Seaworld for years, and please tell everyone you can the truth and get them to advocate too.ReplyDelete
I think everyone would like all Cetaceans and not just the Orcas retired to sea pens and those that are fit to be released, or that can be rehabilitated for release get released. I would be very happy to see the cetaceans I know be able to 'retire' and never perform another silly non educational show and be able to live out the remainder of their lives in relative peace with those that cannot be released being taken care of by those they know and love them.ReplyDelete
The problem I see to that end is moving them. The larger individuals like Katina, Kasatka and Tilikum have not been moved from their current locations in years or even decades and they have grown since then.
Is it even possible, or more importantly safe for the cetacean as large as them to get them into a sling and move them as has been done in the past? If not, what then? Does Sea World San Diego [ or some other park ] dig a canal across their park to the ocean [ as many are right next to the ocean ] and into a floating pen that is then towed to the final sea pen location? The cost of doing something like this is immaterial to me so long as the welfare/safety of the cetaceans comes first.
If it turns out that it is not possible to move some of them, what happens to them then ?
These are questions that need to be answered before moving them
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