As many of you might know, for the past 18 months I’ve been helping documentary film-maker Gabriela Cowperthwaite make a documentary about Tilikum, Dawn Brancheau and SeaWorld. She first contacted me about the idea after reading Killer In The Pool, and the aim of the film is to try and help people understand why Tilikum’s life resulted in Dawn Brancheau’s tragic death.
Now the film is finished. It’s called Blackfish, and it will be shown to an audience for the first time on Saturday evening at the Sundance Film Festival (here’s the film’s page).
I just arrived in Park City for Sundance, and will soon be joined by the full production team as well as many of the trainers interviewed in the film. I’ll be posting about the premiere and the Sundance experience over the coming week, so stay tuned. In the meantime, here is Gabriela talking about Blackfish:
First aired in 1997, PBS Frontline’s A Whale Of A Business was the pioneering investigation of the business and practices of marine mammal parks. The reporting and materials Frontline gathered and put online were invaluable when I first started to report Killer In The Pool.
Now the documentary has been uploaded to YouTube and you can watch the entire report PBS aired.
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.
Here is what I have learned so far, and maybe all you smart people out there–regardless of your views on captivity–can help figure out the strategy.
Waterwork desense will officially begin today (Monday) in the med pool at SeaWorld California. I don’t know if the other parks also have whales and trainers lined up to begin desense work, and are also starting today, but it seems likely, given that the SeaWorld parks tend to work in synch with one another on major program changes like this.
Apparently, this commencement of waterwork desense (the first step toward getting trainers and orcas back on track toward full waterwork capability in the big show pools) follows a tour of the parks that SeaWorld’s chief zoological honcho, Brad Andrews, conducted earlier this year. Andrews and a SeaWorld management team met with the Shamu trainers, and showed them a video of the prototype fast-rising floor that has been installed in SeaWorld Florida’s G pool (the Dine With Shamu pool in which Dawn Brancheau was killed). The floor took just under a minute to surface, and Andrews told the trainers that similar rising floors would be installed in the show pools at all the SeaWorld parks, a major construction program that could take something like 12 to 18 months.
In the meantime, Andrews said, waterwork desense would start up in the med pools. Normally, waterwork desense (for an animal that has been removed from waterwork, say for being too aggressive) is initiated in the med pool with the floor raised up high. Trainers work with the animal through a series of behaviors, and with each successful evolution the floor is lowered a bit, until the waterwork is in fact taking place in the water. From there, the desense moves into one of the smaller back pools alongside the med pool. That way, if anything goes wrong nets can be used to try and corral the orca back into the med pool, where the floor can be raised. And if the back pool desense regimen is successful, and the orca consistently executes the behaviors asked, the desense program moves back into the show pool. This process can take a number of months.
With the current desense program, however, Andrews told Shamu trainers that no waterwork would be performed in a pool that does not have a fast-rising floor. So desense will be conducted in the med pool, and then jump directly to the show pools once the floors are installed there (though Florida, with the G pool floor, will presumably have the option of using G pool as a bridge to the show pool). That means that the desense work with the whales and trainers selected, will progress very slowly and carefully in the med pools for a year or more, so that the orcas and trainers are ready to move into the show pools when they have fast-rising floors.
The big question, assuming my information is solid, is what SeaWorld’s waterwork gameplan is. Unless SeaWorld successfully appeals the OSHA ruling (the next step would be to file an appeal with the US Circuit Court Of Appeals), Judge Welsch’s decision means that waterwork is effectively banned from performances at SeaWorld Florida (the park cited by OSHA following Brancheau’s death). If they are successful, then all of SeaWorld’s parks, having desensed selected orcas, will be in a position to resume waterwork.
If the appeal fails (or is not filed), then it gets more complicated. The OSHA ruling applies only to performance waterwork, so SeaWorld is in theory free to resume training waterwork in all its parks whenever it likes. OSHA could, however, conduct a follow-up inspection and try to get the ban on waterwork applied to training as well. That would, no doubt, be a similarly contentious and drawn-out legal process.
But training waterwork does not really get SeaWorld back into show waterwork, which presumably is the goal. So another possibility is that SeaWorld finishes installing the fast-rising floors, and whatever other safety measures SeaWorld hopes will protect trainers (like spare air systems), and then goes before OSHA to argue that these safety innovations “mitigate” the dangers that OSHA identified. The mitigation measures have to provide protection that is equal or greater than maintaining distance between trainers and orcas, or the use of physical barriers between trainers and orcas. So that might be a hard case to make. But just because it is hard does not mean that it is unwinnable. And if SeaWorld succeeds in winning a decision that says the floors, spare air, and any other safety measures, mitigate the dangers, then they are back in the waterwork business.
The final, seemingly problematic, scenario that I can come up with, addresses what happens if SeaWorld DOES NOT win either an appeal, or succeed in an effort to mitigate the dangers with the floors and spare air. In that scenario, SeaWorld could, in theory, simply resume waterwork at the SeaWorld Texas and SeaWorld California parks, since they were not cited by OSHA. That would obviously open SeaWorld up to a massive liability and PR hit if another trainer was injured or killed during waterwork. And OSHA could, and likely would(?), move to try and cite those parks for exposing tariners to dangers as well. So this scenario has lots of problems and risks for SeaWorld, and seems unlikely. But it is at least in theory possible.
So, that’s all my thinking on where this med pool desense work could go. Anyone else out there have thoughts, insights or comments on how this could all play out?
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.
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.
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:
The story of how the life of Tilikum, the SeaWorld orca, came to mean the death of Dawn Brancheau, is complex and takes some telling. So I am glad to say that the uncut version of the story, which was originally published in Outside, is now available in e-book format.
This version is based on the original 11,500 word draft I wrote of the story, which chronicles Tilikum’s capture and separation from his family, and the physical and psychological stress he experienced in marine park pools over some 30 years. It explores Tilikum’s involvement in two previous deaths. And it details the history of the killer whale industry and the inherent risks of using captive killer whales for human entertainment.
The e-book version is available at the iTunes store, for iPad, iPhone, and iPod Touch.
As many of you might know, for the past 18 months I’ve been helping documentary film-maker Gabriela Cowperthwaite make a documentary about Tilikum, Dawn Brancheau and SeaWorld. She first contacted me about the idea after reading Killer In The Pool, and the aim of the film is to try and help people understand why Tilikum’s life resulted in Dawn Brancheau’s tragic death.
With OSHA and SeaWorld 
Since hearing 
pools at all the SeaWorld parks, a major construction program that could take something like 12 to 18 months.
But training waterwork does not really get SeaWorld back into show waterwork, which presumably is the goal. So another possibility is that SeaWorld finishes installing the fast-rising floors, and whatever other safety measures SeaWorld hopes will protect trainers (like spare air systems), and then goes before OSHA to argue that these safety innovations “mitigate” the dangers that OSHA identified. The mitigation measures have to provide protection that is equal or greater than maintaining distance between trainers and orcas, or the use of physical barriers between trainers and orcas. So that might be a hard case to make. But just because it is hard does not mean that it is unwinnable. And if SeaWorld succeeds in winning a decision that says the floors, spare air, and any other safety measures, mitigate the dangers, then they are back in the waterwork business.
My report on Round 2 of the SeaWorld appeal of OSHA’s citation against SeaWorld Florida 
The story of how the life of Tilikum, the SeaWorld orca, came to mean the death of Dawn Brancheau, is complex and takes some telling. So I am glad to say that the uncut version of the story, which was originally published in Outside, is now available in e-book format.
The Earthist Chronicles 