Well, we knew that already. What’s new is that Judge Welsch–the Administrative Law Judge who upheld OSHA’s prescription that SeaWorld’s trainers maintain a safe distance from the killer whales unless there was a safety barrier between them–and local Florida media just noticed:
A federal judge believes SeaWorld had a duty to begin implementing new safety improvements required by workplace safety regulators last July, even while the theme park was fighting the Occupational Safety and Health Administration in court.
Meanwhile, Local 6 has learned SeaWorld trainers continue to have extremely close physical contact with the killer whales, despite new OSHA requirements that trainers must remain behind a barrier when interacting with the animals during performances…[snip]
…Yet since July, Sea World trainers have continued to have close physical contact with killer whales. During Tuesday’s 2:30 p.m. performance of “One Ocean” at Shamu Stadium, Local 6 cameras recorded SeaWorld trainers touching, petting and dancing alongside killer whales without any barriers separating them.
In one segment of the show, a trainer standing on a submerged ledge leans his entire body on the killer whale and rubs its back with both arms.
Whew, it’s a good thing Local 6 finally “learned” what everyone who has been to a SeaWorld show has known since Welsch’s order was issued. And you have to wonder about a regulatory system that SeaWorld has been so good at either manipulating or ignoring.
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.
One of the key questions that I wasn’t able to resolve in Killer In The Pool was: given the fact that Tilikum had been involved in two previous deaths, and had been deemed unsuitable for waterwork and desensitization training, why was Dawn Brancheau lying down so close to him on a slideout following the Dine With Shamu show?
Dawn Lies Down With Tili Moment Before He Grabs Her
This is clearly a vulnerable position, and she was a very experienced trainer who presumably knew how to take care around Tilikum. So it seems puzzling.
SeaWorld repeatedly said that it had very specific protocols when it came to working with Tilikum, but declined to detail what the exact protocols were (beyond that fact that no one was allowed to get in the water with him; being on a slideout apparently was not defined as in the water). SeaWorld also declined to say whether Dawn Brancheau had violated any of those protocols by lying down with Tilikum in that manner.
Without knowing the details it was not possible to determine whether Dawn Brancheau was violating SeaWorld’s protocols for working with Tilikum and had made a mistake, or whether she WAS NOT violating protocols and in fact was in fact doing something which she and other trainers had done before with Tilikum.
My gut leaned toward the latter: that the position Dawn took with Tilikum on the day he killed her was similar to positions she (and maybe other trainers) had taken with him before, for two reasons: 1) Everyone who knew Dawn that I spoke with, said she was very committed to her job and known for following the rules; and 2) SeaWorld runs a pretty tight ship, and it seemed unlikely to me that Dawn would suddenly be doing something that she and others had never done before (and if she had, how come the other trainers acting as her spotters didn’t flag it?).
Still, Thad Lacinak, who was part of the killer whale management team at SeaWorld Orlando until 2008 and often seems to act as a surrogate spokesperson for SeaWorld, told me (and other journalists) that Dawn had made a mistake and that she never should have put herself in such a vulnerable position with Tilikum. Here is how the AP reported his view right after Dawn died:
Thad Lacinak, who helped train Dawn Brancheau, said she was very good but made a mistake by lying down on a watery shelf next to the 12,000-pound animal and letting her long hair get in front of the 22-foot orca named Tilikum – the largest killer whale in captivity…
Lacinak said he’d been told how the attack happened by other trainers who were at the scene Wednesday, when Tilikum dragged Brancheau into the water as she gave him pats and other rewards after a midday show. Based on their description, he said the rules for handling the giant orca that were in place during his tenure had either been broken or changed.
He said the same thing to me, and added: “Staying on your feet and avoiding proximity around the mouth is better.”
SeaWorld–Dawn’s employer for 16 years–has said nothing to dispute his judgment. Thus, the prevailing outside view of what happened was that–experienced as she was—Dawn Brancheau made a mistake that got her killed.
The photos are in an album devoted to Tilikum, and were shot over the past few years. You can peruse the whole thing here. But I have selected a series of photos that appear to make clear that SeaWorld trainers had been getting very close to Tilikum on slideouts well before the day Tilikum grabbed Dawn, pulled her into the pool, and killed her (one caveat: I am trusting the photographer correctly identified Tilikum and placed only pictures of Tilikum in this album).
Here is one photo, which is a haunting reminder of the position Dawn was in when she was grabbed. It was taken in July 2008:
A trainer, with a ponytail, lies down with Tilikum
With OSHA and SeaWorld 
The Earthist Chronicles 