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D.C. Circuit Weighs In on "Blackfish" and SeaWorld's OSHA 'Tale'

By Aditi Mukherji, JD on November 19, 2013 | Last updated on March 21, 2019

The CNN-produced documentary "Blackfish," premiering at the Sundance Film Festival, is a whale of a tale landing SeaWorld in a sea of legal woes.

The film traces a 39-year history of killer whales in captivity leading up to the graphic 2010 killing of SeaWorld trainer Dawn Brancheau by the 12,000-pound orca, Tilikum, a whale previously associated with the deaths of two other people.

A cautionary tale, "Blackfish" highlights the captivity of orcas, the chilling danger it poses to whale trainers, and the wave of legal liability in which SeaWorld is now drowning.

Floundering in OSHA Violations

Though captive killer whales don't have standing to bring Thirteenth Amendment claims, advocates have managed to float a more viable legal argument: Hurting orcas hurts humans.

As one of the most intelligent and social species in the animal kingdom, orcas thrive on familial interaction and open water. Being kept in isolation or in constant close proximity with unrelated orcas can stifle an orca's emotional and physical development and actually breed significant aggression. That aggression, in turn, poses serious safety risks to SeaWorld's whale trainers.

This issue came to a head after the gruesome death of SeaWorld trainer Dawn Brancheau. The Occupational Safety and Health Administration (OSHA) sued SeaWorld after it uncovered forty years-worth of evidence demonstrating a chilling pattern of orcas attacking -- and sometimes killing -- trainers.

A federal judge upheld OSHA's claims -- that SeaWorld willfully violated the Occupational Safety and Health Act's "general duty" clause and put their trainers in danger -- and ordered a ban on direct contact between trainers and orcas.

D.C. Circuit Gets Its Feet Wet

The U.S. Court of Appeals for the D.C. Circuit is now being asked to decide if requiring barriers and minimum distances between orca and human performers is a sensible safety measure imposed by OSHA, or a crippling curtailment of Orlando-based SeaWorld's main attraction.

SeaWorld Entertainment's attorney Eugene Scalia -- son of U.S. Supreme Court Justice Antonin Scalia -- is arguing that the Occupational Safety and Health Act's "general duty" clause was misconstrued.

The "general duty" clause requires that employers provide a workplace that's free from hazards that could cause death or serious physical harm to employees. However, Scalia argued, the clause "cannot be used to force a company to change the very product that it offers to the public, and the business it is in."

After all, SeaWorld's (soggy) bread and butter is close contact between humans and Shamu. Likening SeaWorld to the NFL, Scalia argued the very premise of the business is close contact. For that reason, OSHA can't ban SeaWorld's practice of such contact.

But Amy Tryon, an attorney representing the Department of Labor, argued that close contact is too dangerous for trainers. She also pushed back and argued that, unlike the NFL, close contact is not essential to SeaWorld's product. Indeed, no close contact between trainers and orcas, SeaWorld's attendance is up by 30%, according to The Wall Street Journal.

In the meantime, as SeaWorld deals with a new fine of $38,500 for yet another OSHA violation, perhaps they should meditate upon the image of Free Willy.

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