Been getting word that at least one SeaWorld Shamu stadium has called a meeting for Monday to discuss beginning waterwork desensitization in the medical pool. That’s the first step to resuming waterwork with SeaWorld’s killer whales, which was stopped in the aftermath of Dawn Brancheau’s and stayed on hold through SeaWorld’s appeal of OSHA’s citation of SeaWorld Florida for exposing trainers to injury from orcas.
I don’t know if all of SeaWorld’s parks are planning to begin waterwork desense training, or whether the training will lead to the resumption of waterwork outside of shows (which Judge Ken Welsch’s OSHA ruling allows) or even in shows that either take place outside of Florida (which was the only park OSHA cited) or in shows everywhere based on a claim that fast-rising floors and other safety measures mitigate the dangers OSHA cited.
But I do know that SeaWorld management, including Brad Andrews and Jim Atchison, have for a while been telling trainers–many of whom have been discouraged by the lack of waterwork and considering moving on from Shamu Stadium–that, despite OSHA, waterwork will be back. And also that plans to install fast-rising pool floors will continue.
SeaWorld management has also been telling trainers that Judge Welsch erred in his ruling, so it seems likely that SeaWorld will appeal his ruling further (it has 60 days to file). In the meantime, SeaWorld is within days of having to demonstrate to OSHA the steps it will take to mitigate the dangers to trainers OSHA identified.
So lots of pieces are in movement, and only SeaWorld knows where it hopes to take them. But a plan to begin waterwork desense shows that waterwork in some form is still very much part of SeaWorld’s plan.
SeaWorld Parks And Entertainment President and CEO Jim Atchison
Wow, that was fast. The trainer comment on the OSHA ruling I just posted made mention of an e-mail to employees from SeaWorld Parks & Entertainment President and CEO Jim Atchison. And, poof, someone sent me an e-mail to employees from Jim Atchison.
This is not the original e-mail in response to Judge Welsch’s OSHA ruling, mentioned by the current trainer in the previous post, but apparently a follow-up e-mail Atchison sent employees regarding news coverage of the OSHA ruling. If the tone of the original e-mail was similar, you can see why some employees might have got the impression that the OSHA ruling was favorable to SeaWorld. (Side question: Was Atchison simply counting on them not to read Judge Welsch’s decision, or believe the news coverage because he says different?]
As I wrote at Outside Online, Judge Welsch’s decision could sharply limit SeaWorld’s famed Shamu Show by preventing SeaWorld from returning to its most famous show practice: swimming and performing in the water with its killer whales, or waterwork. The decision also limits drywork contact with Tilikum, who was always subject to a waterwork ban due to his involvement in previous deaths, but was a popular star in side shows, such as the Dine With Shamu show which got Brancheau killed. And it similarly restricts close contact with the rest of SeaWorld Florida’s killer whales, even when trainers are on shallow ledges or at poolside, i.e. “drywork.”
But the language of the OSHA citation, which was issued in August 2010, for some reason references “waterwork” and “drywork” performances, as opposed to simply applying to any and all waterwork and drywork killer whale interactions involving close contact. Non-performance waterwork and drywork that occurs during training, exercise and (to an extent) animal care is virtually identical to that which is performed in the shows. And Atchison’s e-mail to SeaWorld employees suggests that SeaWorld may try to exploit that distinction.
Here is the text of Atchison’s internal e-mail (emphasis added):
To: All SeaWorld Parks & Entertainment Team Members
You may have seen news coverage over the last 24 hours concerning a ruling on OSHA’s citations against SeaWorld. While there has been much discussion of the implications of the decision, we view it as a positive that both the citation and the related fine were reduced substantially.
It is important to note that the judge agreed that caring for these animals requires contact between trainers and whales. As the judge indicates in his decision, the ruling applies only to show performances, and not to husbandry, exercise, learning, play and relationship activities.
While we view the overall decision as positive for us, we do disagree with some of the judge’s interpretations. We have every confidence in the safety of our extraordinary killer whale training program. Protecting the safety of our team members is a core commitment for SeaWorld, and our record in this area is exemplary.
The current show already includes many of the safety enhancements noted in the judge’s report. When we introduced the new “One Ocean” killer whale show, we voluntarily incorporated additional safety enhancements, such as barriers and proximity changes, which have now been in place for more than a year.
Our killer whale program is a model for marine zoological facilities around the world, and the additions we have made in the areas of personal safety, facility design and communication have enhanced this program further still. In addition to these existing safety measures, we also continue to progress on the development of prototypes such as a lifting pool floor.
I am extremely proud of the many men and women throughout our company who have represented and assisted us in this matter. They have demonstrated an unwavering dedication to safety, animal welfare and upholding our company’s long-standing reputation for excellence.
Jim Atchison
Dawn Brancheau and Alexis Martinez
Apart from the oddity of describing the “overall decision,” which was in essence a denial of the key elements of SeaWorld’s appeal, as “positive for us,” what stands out is Atchison’s language regarding the scope of Welsch’s ruling.
Since Brancheau’s death, and during the lengthy process of appealing the OSHA citation, SeaWorld ceased waterwork at all its parks, and also changed how close trainers could get to killer whales, and how they would interact with them, during drywork (the “barriers” and “proximity changes” that Atchison mentions). But as Atchison notes, Welsch’s decision applies only to performances (following the language of the citation). So SeaWorld could in theory resume waterwork and close contact drywork with its killer whales outside of performances, and be in compliance with Judge Welsch’s decision.
If SeaWorld goes this route, which would help SeaWorld maintain its waterwork training even as it continues to hope to find a way to return waterwork to its shows, there will be risks. While Brancheau was killed while performing with Tilikum, Alexis Martinez was killed by a SeaWorld killer whale at Loro Parque two months earlier during a waterwork training session. So the same risks and dangers to trainers apply regardless of whether there is an audience or not. All that really matters is proximity. And the liability exposure if SeaWorld resumed non-performance waterwork and/or close contact drywork, and another trainer was injured or killed by a killer whale, would presumably be very high.
In addition, OSHA would be very unlikely to stand by if SeaWorld resumed the very practices–albeit not during performances–that OSHA deemed dangerous when it cited SeaWorld Florida in the first place. Les Grove, Area Director of OSHA’s Tampa Area Office, which issued the original citation, addressed this potential performance loophole during the hearings before Judge Welsch, when pressed by SeaWorld’s lawyer on whether the citation applied to non-performance waterwork and drywork, or just performances. Grove said that the citation applied only to performances, and added “But as a responsible employer, if you are aware of other interactions, where they’re exposed to the hazard, you should look at that and take action to materially reduce the hazard.”
In other words, if SeaWorld resumed waterwork and close contact drywork in exercise, play, and relationship-buuilding sessions that take place outside of performances, OSHA would view that as a danger to employees, and would almost certainly conduct a follow-up inspection that could result in another round of citations for endangerment of employees. SeaWorld, of course, could appeal those citations as well, which presumably would mean another lengthy legal proceeding.
It will be interesting to see how this all plays out, and how SeaWorld in the end chooses to address Judge Welsch’s decision. Atchison also mentions safety enhancements, including the fast-lifting pool floor that SeaWorld Florida is prototyping (which in theory could be used to beach a killer whale acting aggressively or attacking a trainer). The OSHA citation says that SeaWorld can abate the dangers cited through safety modifications, as long as the modifications “provide the same or a greater level of portection for the trainers” as avoiding close contact or staying out of the water. That is a very high standard, but SeaWorld has invested millions in developing the lifting pool floor, and has also been working on, and practicing with, personal air supply systems that trainers could wear in the pools. Making those investments doesn’t make much sense if SeaWorld doesn’t have plans to try and put trainers back in the water one way or another.
To close, here’s Atchison discussing SeaWorld’s plans, and press coverage, in the immediate aftermath of Dawn Brancheau’s death, just as the OSHA investigation was about to start. Amazing what a long and winding road has been traveled since then:
Over the weekend I opened my e-mail to find this reaction to Judge Welsch’s OSHA ruling from a current SeaWorld trainer with many years of experience. It has always been clear that some (though not all) trainers have to deal with a number of contradictory feelings about working with orcas in captivity. But I thought this revealed the bitter honesty of at least one person’s mindset, and I wonder how many other trainers think like this:
I read the 47 page ruling and thought his sharp criticism of the culture and upper management was awesome. And to be honest with you, it made me sick to my stomach. I have known these abuses for years but to see it in affirmed in black and white was sickening. I’m a little ashamed that I allowed this company to take advantage of and abuse me (and the whales) for years because of my own selfishness to want these experiences. It reminded me of how an abused person behaves and justifies the actions of their abusers. Even the fact that SeaWorld testified that they had no knowledge that it was dangerous for us to work with the whales. I love that the judge pointed out how ridiculous it was for them to say that. But all of us trainers sat back and allowed them to say such disgusting things because we wanted to swim, we wanted to keep our jobs, etc.
His ruling finally called bullshit on this cult-like atmosphere we live in and ultimately support as killer whale trainers for SeaWorld. Even the spin machine that has begun is mind blowing. Jim Atchison’s email to all employees is unbelievable. Trainers at the killer whale stadium who had not seen the news yet and only had information from his email actually believed we had won! Some trainers found a lot to be concerned about in the ruling, but aren’t getting many answers from upper management. A Curator even said that this doesn’t mean anything and that they would continue on as they have been and continue to progress as they see fit. And some trainers didn’t even want to know any details because they love the job so much they didn’t want to hear bad news. Some are senior people and supervisors, which just shows how incredibly brainwashed many still are.
I’ve long felt that trainers at SeaWorld have to be able to achieve a certain degree of cognitive dissonance to be able to say on the one hand that they love the
Or this?
killer whales, and on the other hand be witness to the early deaths, the tooth drilling, the sunburnt skin, the social instability and aggression. and all the other chronic effects of captivity. And I have always suspected that many were able to achieve this cognitive dissonance because what killer whale training is really about for them is the sheer exhilaration of experiencing, bonding with, and swimming with, one of the planet’s most extraordinary animals. In other words, it was about the trainers’ fantasies and trainers’ desires–no matter how much spin and PR would try to convince you otherwise–not the needs and well-being of the killer whales in their care.
If Welsch’s ruling stands, perhaps it will be harder to maintain this cognitive dissonance, because the ultimate experience of working with a killer whale–waterwork–could be gone. So maybe the reality will start to trump the fantasy for more trainers. Already I am hearing lots of noise about trainers moving out of various Shamu stadiums, to stadiums such as Whale and Dolphin where there continues to be waterwork. Though I don’t know the motivation or reasons for any trainer movement, I have had some people tell me that work at Shamu Stadium without waterwork can be kind of a grind. So maybe more trainers will seek work away from Shamu Stadium, or even start thinking about moving on from SeaWorld altogether.
One more note: Last Friday I was on the Sam Simon show, which is always an interesting discussion because Simon (follow him on Twitter here) is passionate about the topic of orcas. Former SeaWorld trainer Jeff Ventre, over at Voice Of the Orcas, posted the audio.
As a follow-up to my Outside post, I want to call out Judge Welsch’s decision, and urge you to read it. I don’t want it to get lost in all the back and forth over SeaWorld and the future of waterwork, and whether SeaWorld can successfully appeal or implement sufficient safety measures to allow trainers back in the water.
It is 47 pages, and in my view a relentless and powerfully argued deconstruction of SeaWorld’s corporate culture, training regime, and safety strategy. And because, for the first time, SeaWorld was compelled to put on the record its personnel and its internal documents, it is one of the most revealing looks inside killer whale captivity that you can read. If you have any interest in this topic you will find it a fascinating document.
Administrative Law Judge Kenneth Welsch released his decision in SeaWorld’s appeal of OSHA’s 2010 citations regarding the safety of SeaWorld’s killer whale program.
A decision released yesterday by Administrative Law Judge Kenneth Welsch in Florida will fundamentally change SeaWorld’s killer whale shows. In a landmark case, Judge Welsch ruled in favor of the Occupational Safety and Health Administration (OSHA), concluding that the only way to keep Seaworld trainers safe is to either keep them away from close contact with the killer whales (which means no waterwork in the pools with them during shows), or to use physical barriers or other safety modifications to provide the same level of protection. Unless SeaWorld appeals Welsch’s ruling and manages to win, the Shamu Shows as we know them likely just came to an end.
OSHA’s case was prompted by the death of SeaWorld trainer Dawn Brancheau, who, on February 24, 2010, was pulled into the water and brutally killed by SeaWorld’s largest killer whale, a male called Tilikum who weighs about 12,000 pounds. After Brancheau’s death, OSHA took a hard look at the safety of SeaWorld’s killer whale training methods and high-intensity killer whale shows, which feature trainers swimming with, riding, and leaping off whales. Following a detailed investigation, OSHA hit SeaWorld with a series of safety citations, the most serious of which said SeaWorld knowingly exposed killer whale trainers to being struck or drowned by killer whales when it had them work closely with Tilikum and other killer whales. The only way to abate the dangers, OSHA said, was to either stop working in close contact with the killer whales, or keep physical barriers (or equivalent measures) between trainers and killer whales. In short, OSHA said that SeaWorld’s killer whale program was dangerous and needed radical changes.
SeaWorld hotly contested OSHA’s conclusions, which it called “unfounded,” and launched an appeal. After a series of hearings that took place last fall, Judge Welsch issued his ruling this week. The verdict: OSHA’s conclusions stand. In his decision (available here), Welsch systematically picked apart SeaWorld’s arguments that its training methods, and ability to predict dangerous or aggressive killer whale behavior, are protection enough for trainers.
Welsch reduced the nature of the OSHA’s citation from “willful” (the most severe) to “serious,” and reduced Seaworld’s fine for the critical citation from $70,000 to $7,000. Then he set about sytematically dismantling SeaWorld’s arguments. Read the whole thing…
Bonus: Here’s a video, shot by a Shamu Stadium audience member, which shows SeaWorld raising the fast-rising floor in the Orlando G Pool. This floor design is one of the innovations that SeaWorld is developing, and could be used to try and convince OSHA that it is safe to put trainers back in the water. The challenge is that such measures have to provide an equal or better level of protection for trainers than simply keeping them away from close contact with killer whales. And that’s a pretty hard case to make.
Getting word that the fast-rising pool floor that SeaWorld has been tinkering with for months, in the “G” pool at SeaWorld Florida, is about to go operational. And that construction to install similar floors at SeaWorld Texas and SeaWorld California will begin in earnest late this year or over the winter.
The fast-rising floor and “spare air” for trainers have been the two most prominent safety upgrades that SeaWorld has pursued in the aftermath of the death of trainer Dawn Brancheau. Getting these complex technologies to work properly could be the key to SeaWorld making a case to OSHA that it is safe for trainers to go back into the water. That is a case that SeaWorld presumably would have to make if its appeal of OSHA’s citation regarding waterwork, which is in the hands of a judge at the moment, is denied.
Just a couple of pics of what the SeaWorld Florida G-Pool prototype rising floor is looking like these days.
These were taken November 13, by a Flickr user who comments:
Shamu Stadium at SeaWorld
Orlando, Florida
Has water in it and the back pathway is open, but not underwater viewing. Pool between underwater viewing and “ready pool” is still drained.
It’s interesting to note that the faux-rock features of G pool, which may have slowed the net deployment during the attempt to rescue Dawn Brancheau (and presumably would prevent use of a rising floor), are gone.
One other feature of the planned fast-rising pool floors is that they require the retrofitting of air lines under the pool to help drive the floors toward the surface in an emergency.
My report on Round 2 of the SeaWorld appeal of OSHA’s citation against SeaWorld Florida is up over at Outside Online. Here’s the lead-in:
The security guards screening visitors to the Seminole County Criminal Justice Center in Sanford, Florida, jokingly called it the “Flipper trial.” But when nine days of courtroom testimony on the intricacies and risks of working closely with killer whales drew to a conclusion on November 18, the federal administrative-law judge tasked with ruling on SeaWorld’s appeal of an OSHA citation knew he had a tough decision before him. “This is one of the most unusual OSHA hearings I have had,” said Judge Kenneth Welsch, explaining that most of the dangers he’d deliberated during the past 15 years were more commonplace, like employees tripping and falling. “I will have to consider it very carefully.”
Welsch will likely deliver his verdict sometime next Spring, so the case is now on hiatus as both sides sum up their arguments in legal briefs, and then Welsch plows through them and the hearing record to make his decision. It’s likely that whatever Judge Welsch decides, it will will be appealed further, so this movie could run for ages. But given the stakes for both sides, that is not surprising.
It is key, because it goes to the question of whether SeaWorld was indifferent to the risks waterwork and close contact with killer whales posed to its trainers. Mike Scarpuzzi, SeaWorld San Diego’s vice president of zoological operations, testified yesterday (according to my notes) that SeaWorld Florida, where Brancheau was killed two months later, took its trainers out of the water on Dec. 25, and returned them to waterwork on Dec. 27th or so.
Today, SeaWorld Florida animal-training curator Kelly Flaherty-Clark also discussed the death of Alexis Martinez. She discussed the corporate incident report and talked about reviewing the video of Alexis’s death, captured by an underwater camera. She was critical of how Brian Rokeach handled the moments leading up to Alexis’ death, saying: “He made decisions spotting the session that I would not have made, that my team here [at SeaWorld Florida] would not have made.” Flaherty-Clark also was critical of the general level of experience of the trainers at Loro Parque, saying “I understood that the level of experience of trainers at that park did not mirror the level at my park.”
It was against this background that Flaherty-Clark said she, in consultation with SeaWorld Florida management, made the decision to return SeaWorld Florida’s trainers to the water.
When I reported the story of Alexis’ death I went to great effort to try and figure out when SeaWorld’s parks removed trainers from the water in the aftermath, and for how long. Since SeaWorld would not tell me, with the help of a friend who is a master of Flickr searches, I turned to photo evidence. What Flickr photos of SeaWorld Florida’s Believe shows, in the days after Alexiss Dec. 24 death, seem to show is that SeaWorld Florida continued waterwork on Dec. 25 and 26, removed trainers from the water for one day, Dec. 27, and had them back in the water on Dec. 28.
Of course, it is possible that the date setting on a camera might be wrong, but this photo of Dawn Brancheau, for example, explicitly says it was taken on December 25 (see the caption).
Seaworld Trainer - Dawn Brancheau This is a picture I took on Christmas day 2009 whilst on holiday with my family in Florida. It was a great show and we were really impressed with the whales and trainers. This is Dawn Brancheau who was tragically killed during an accident at the park Wednesday, February 24th, 2010
I’ve published the full list of photos at the end of this post so you can see what you think of them, and decide what they show, yourself.
If these photos show what I think they show, then Scarpuzzi’s testimony about when SeaWorld Florida was out of the water was not quite accurate, and SeaWorld Florida waited two days after Alexis died to pull its trainers from the water, and then kept them out of the water for only one day (the other parks waited longer).
The other thing I have been wondering about how SeaWorld Florida handled the suspension and resumption of waterwork in the aftermath of Alexis’ death is: how much could Flaherty-Clark and SeaWorld Florida management have known about what happened at Loro Parque just two days after Scarpuzzi arrived in the Canary Islands to help Rokeach handle the tragedy and find out what happened?
In her testimony Flaherty Clark discussed the incident report and video, but Scarpuzzi testified (according to my notes) that he left Loro Parque, to return to the United States to brief the parks on his investigation and show the video, on Monday, Dec. 28. So by the time he arrived in Florida, it appears that SeaWorld Florida trainers were already back in the water with the killer whales. And the decision had been made, it seems, before Scarpuzzi had made his full presentation on the incident, which included the underwater video, to the training team at SeaWorld Florida.
Of course, Flaherty Clark and the management team at SeaWorld Florida may have seen a draft of the incident report before Scarpuzzi returned, or may have discussed its content with Scarpuzzi by phone. But it seems unlikely they had seen the video before ordering trainers back into he water, unless Scarpuzzi e-mailed it somehow over the weekend. I’d love to know when Flaherty-Clark first saw a draft of the incident report, and when she first viewed the video.
Flaherty-Clark also testified that she discussed the decision to return to the water, which presumably occurred Dec. 27 or the morning of Dec. 28, with the trainers who would be going back in the water. But how much could they have known about what happened at Loro Parque if they hadn’t yet been briefed by Scarpuzzi, and hadn’t yet viewed the video, as appears to be the case? And from what I learned in my reporting about how SeaWorld handled Alexis’ death, trainers learned what they know about the incident from Scarpuzzi’s briefing and the viewing of the video. I don’t believe that the corporate incident report was shared widely with trainers, or made available to trainers in the way that SeaWorld incident reports normally are.
Perhaps there are good answers to these questions. SeaWorld did not want to talk about this when I was doing my reporting, so I am piecing a timeline together from a variety of sources, and sharing the questions the timeline, if I have it straight, raises. It is a critical timeline, and the issues go straight to the heart of the courtroom battle between SeaWorld and OSHA.
Here are the photos of waterwork at SeaWorld Florida in the aftermath of Alexis Martinez’s death:
I’m down in Florida this week, sitting in on the court hearings in which SeaWorld is challenging OSHA’s Dawn Brancheau-related citation of SeaWorld Florida for willfully disregarding the safety of its trainers. That means limited blog posting this week. But you can find (right here) a post I wrote for Outside online summarizing where the case stands.
Alexis Martínez, left, and Dawn Brancheau at Loro Parque in 2006. Martínez was killed by an Orca in December 2009. Brancheau died two months later, in February 2010. Photographer: Courtesy of Estefanía Luis Rodriguez
My report on Round 2 of the SeaWorld appeal of OSHA’s citation against SeaWorld Florida 
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