With OSHA and SeaWorld headed back to Judge Welsch’s court in January to discuss the timing and specifics of the abatement of the dangers OSHA identified in its 2010 citations of SeaWorld Florida, I thought it would be interesting to take a look at what protocols SeaWorld has been using to define how trainers should interact with killer whales since Dawn Brancheau was killed in February 2010.
The protocols will presumably be a part of the January hearing. And what comes out of that hearing–what Judge Welsch decides regarding SeaWorld’s desire for more time to work out a comprehensive abatement plan and what he does in response to OSHA’s contention that SeaWorld has not been adequately abating the dangers and needs to be in compliance–could have a big impact on what SeaWorld’s killer whale shows will look like in the coming year and beyond, particularly if Welsch decides that the practices that are in place right now are not adequate protection for trainers.
Moreover, as a backdrop to the approaching abatement hearing, SeaWorld continues to move steadily forward in its waterwork desensitization program. I reported over the summer that SeaWorld was going to initiate waterwork desensitization in its medical pools, where the floors can be raised. And I also pondered SeaWorld’s potential strategy and timeline for trying to restore waterwork to its shows. That waterwork desensitization has now progressed to the point where the med pool floors have been left completely down, so that both killer whales and trainers are not beached or standing, but swimming. In California, for example, at least four whales (including Orkid) have been in the med pool, and held under control on a hand target, while a trainer floats nearby. In Texas, they have had Tuar, for one, conduct a perimeter swim past a floating trainer. SeaWorld management has told trainers it will not conduct waterwork in a pool that doesn’t have a rising floor. That makes me wonder whether and when SeaWorld Florida might consider moving waterwork desense and training to G pool (which is where the first rising floor was installed).
But back to the January abatement hearing. To set the context, here are some excerpts from Judge Welsch’s ruling last May upholding OSHA’s citations of SeaWorld:
As with Tilikum, the Secretary proposes that for performances, SeaWorld either install physical barriers between its trainers and killer whales, or require its trainers to maintain a minimum distance from the killer whales. This proposed abatement is technologically feasible; SeaWorld has been using it since February 24, 2010. SeaWorld has banned waterwork with its killer whales during performances, and trainers perform drywork from behind barriers.The proposed abatement is also economically feasible. SeaWorld did not argue that performing drywork from behind barriers or banning trainers from waterwork during performances affected it economically. SeaWorld’s killer whales, including Tilikum, have continued to perform in shows at Shamu Stadium without the presence of trainers in the water with them. Trainers perform drywork from behind barriers or at a minimum distance.
Later in his ruling he writes:
Prohibiting waterwork and using physical barriers and minimum distances eliminate the trainers’ exposure to the recognized hazard of working with killer whales. Proximity to the killerwhales is the factor that determines the risk to the trainers. Dr. Duffus stated, “The fundamental fact with captivity is the proximity. . . . The fact of the matter is simple proximity. . . If you’re close to a killer whale, they can potentially inflict harm” (Tr. 851).
Welsch, as far as I can tell, never defines a minimum distance the trainers should maintain if they are not separated from a killer whale by a barrier. But he clearly seems to believe that maintaining some sort of gap is both proper and feasible abatement. OSHA’s view seems to be that the minimum distance should be whatever distance is required to keep trainers safe. What that distance is, and what Judge Welsch believes it needs to be, presumably is something that the January hearing might clarify.
What Welsch might not know as the hearing approaches is that despite his apparent belief that SeaWorld trainers have EITHER been working from behind barriers during shows since February 2010 OR maintaining a minimum distance , the reality is not quite so clear-cut; that in fact there continue to be plenty of instances in which SeaWorld trainers have direct contact with the whales during drywork, with no barrier and no minimum distance. The Side By Side segment of the SeaWorld One Ocean show, for example, regularly features trainers rubbing down, and hugging, whales on the slideout.
Here’s a sequence from an August 2012 show at SeaWorld Florida:
This is from an October 2012 show, also at SeaWorld Florida.
So what are the protocols that trainers follow for such interactions? Interestingly, it is not at all clear that the OSHA citations and Judge Welsch’s ruling had much, if any, role in how SeaWorld protocols evolved. According to someone who knows: “[Judge Welsch’s] ruling was never, not even once, brought up or discussed with the killer whale staff in any way or format. It was completely ignored.”
What follows below is what I have been told about the protocols that have guided drywork since Brancheau’s death. The rules changed fairly often, and apparently they were not always consistently enforced (so it is hard to track them perfectly). But here is what I have learned about the some of the major evolutions and their timing.
In the immediate aftermath of Brancheau’s death, waterwork ceased and trainers were given the following protocols regarding whale interactions (this is not necessarily a comprehensive list of EVERY protocol, but a summary):
–in the show pool, stay 3 feet back from a whale chinned up on the pool side (i.e. 3 feet away from the whale’s head).
–in the back pools, trainers at SeaWorld California were already staying behind the pool walls following an incident that occurred prior to Brancheau’s death (during a sonogram, Orkid struck a trainer with her rostrum, knocking the trainer over the wall to a hard facial landing that briefly knocked the trainer out) . So they were not inside the walls, on the narrow pool decks (which are mostly less than 3 feet wide), when whales were chinned up in front of them. Following Brancheau’s death, trainers at SeaWorld Florida also stopped going over the walls in the back pool. SeaWorld Texas–after initially continuing to allow trainers over the walls in the back pools–eventually followed suit after SeaWorld management realized trainers were still going over the walls in the back pools and told them to stop.
–Trainers were told to stop touching whales’ heads (“head tactile”), though it was allowed for whales that needed tooth irrigations, with the trainer(s) working across a wall or safety barrier.
–if a whale was up on a slideout, trainers were told not to be positioned behind the pectoral fins, because SeaWorld recognized that it was pretty easy for a whale to pull a trainer into the water if the trainer was between the whales pectoral fins and the pool edge (especially if the whale turned its head and hooked the trainer as it slid back into the water). Any tactile (touching) was to occur behind the blowhole, and trainers were told to make sure they stayed in front of the pectorals during tactile.
–if a whale was up on a slideout, but turned sideways/lengthwise on the slideout (i.e. in profile) trainers could go behind the pectorals (presumably because it would be harder to get swept into the pool by the pectorals or head).
These protocols (or variations of them) applied for about a year after Dawn Brancheau was killed. Then the protocols were changed to:
–allow trainers to be within 18 inches of a whale chinned up in front of a trainer.
–allow head contact or tactile across a wall or mini-bar barrier (the stainless steel safety barrier than can be installed and removed from the pool deck); but initially not in shows.
Then a year later, this past Spring, the protocols changed again:
–the 3 foot minimum distance to a chinned up whale was restored.
–stepping over the wall in the back pools when there was less than 3 feet of pool deck was allowed IF the trainer first asked the whale to line-up along the pool side and the whale committed to the line-up (asking the whale to line up lengthwise along the pool side was preferable to asking the whale to chin up on the pool deck, because a whale chinned up on the narrow back pool deck gave a trainer very little separation, while a line-up kept the whale in the water while offering similar access to the head).
–head tactile in shows was allowed again if it was done across a mini-bar.
Then a few months later, which takes us into the post-Judge Welsch ruling era, the protocols changed AGAIN:
–the 18-inch minimum distance to a chinned up whale was restored.
–trainers were allowed behind the pectorals for tactile during a normal slide-out.
–head tactile was still allowed in shows and sessions across a safety barrier.
The most notable point about this last protocol change is that, if anything, protocols EASED in the aftermath of Judge Welsh’s decision upholding the OSHA citations. In particular, the 3 ft minimum separation from a chinned up whale was reduced (again) to 18 inches, and trainers were allowed to position themselves behind the pectoral fins of a slid out whale. And while at times there were restrictions on where a trainer could be positioned in relation to a whale on the slideout, and restrictions on where they could touch the whale, there appears that there were never minimum distance requirements on the slideouts. That allowed, and allows, close contact (including hugging) during performance “drywork.” And in that situation it does not seem that it would be very hard for a whale to strike a trainer, or pull a trainer into the water, if it chose. (See below, or here, here, here, and here).
You can see in these protocols that SeaWorld paid a lot of attention to the position of whales and trainers, the distances involved, and whether certain positions made a trainer more vulnerable or not. But that judgment is clearly very subjective, even for SeaWorld, which in particular went back and forth quite a bit on the 3 feet vs. 18 inches minimum distance. And enforcement or application of protocols that did get defined appears to have been somewhat inconsistent. During the period when head tactile was mainly restricted to husbandry, for example, some trainers who simply wanted to give head tactile to a whale would categorize the head tactile as a “desense approximation” and label it a husbandry procedure. In addition, tactile and distance restrictions didn’t always get applied to young whales that were considered “small.”
While trainers may have manipulated or skirted the safety protocols on occasion, it seems they were under no illusion that 18 inches additional distance–or the mini bars–would somehow protect them from a whale that really wanted to go after them.
Here’s what one source told me:
The 3ft/18 inches/3 feet/ 18 inches back and forth was how far back from their head they [management] determined for a trainer to have enough reaction time to move if the whale slid out at and tried to grab the trainer, which of course is total bullshit because from that distance they can get the trainer if they choose to do so. It was also commonly discussed that the bars used as make shift barriers were strictly for perception and would not stop a killer whale.
(photo via Whale And Dolphin Conservation)
Even SeaWorld management, I am told, frequently described the bar barriers for head tactile as “for show,” and as a quick fix that was important to make it appear that guidelines and safety were being taken seriously.
To the extent that SeaWorld’s protocols, and handling of shows since Dawn Brancheau died, is a focus of the January hearing before Judge Welsch, I think Judge Welsch will find interesting the degree to which the reality of SeaWorld’s shows since Dawn Brancheau’s death, OSHA’s citation, and his OSHA ruling, is quite different from what he assumed has been happening (minimum distances and meaningful barriers during show drywork) in his ruling. I am not a labor lawyer (thankfully) so I don’t really know what he might do if he feels that there is a disparity between what he assumed has been happening at SeaWorld and what in fact has been happening. But it should make for an interesting hearing, for sure.
Finally, if Judge Welsch becomes unhappy about all the close contact going on during drywork in SeaWorld shows, and takes any steps to ensure minimum separations and meaningful safety barriers, SeaWorld’s shows will feature even less of the contact and connections between trainers at whales that crowds love to see (and which waterwork brought to a high art). That will make SeaWorld’s efforts to restore waterwork to its shows even more important. And I still believe the gameplan to do that (particularly if SeaWorld’s next appeal of OSHA’s citations, in federal court, fails) is to try and argue that fast-rising floors, along with other safety measures and protocols, are sufficient to abate the danger of SeaWorld trainers being being injured or killed by a killer whale. If that argument succeeds, then waterwork could resume in pools that have the fast-rising floor installed. That gameplan fits with SeaWorld’s desire to be given more time to commit to an abatement plan. It also fits with the resumption of waterwork in medical pools, which could move into the show pools for training sessions once the floors are installed.
It is important to emphasize that there is nothing in Judge Welsch’s order that prohibits waterwork, or waterwork desensitization, outside of shows (though OSHA, could, I presume, go in and cite waterwork desensitization over the same dangers it identified after Dawn Brancheau died, if OSHA chose). But the waterwork desensitization progress is an important indicator, I think, that SeaWorld is going to do everything it can to re-institute full waterwork if at all possible. If OSHA and Judge Welsch further restrict the close contact that continues to occur in shows, winning the federal appeal, or making a convincing case that rising floors and other safety innovations are sufficient to allow trainers back in the water in shows, will be the only hope SeaWorld has of restoring its killer whale shows to some semblance of their former entertainment glory.
So stay tuned…