David Kirby On Captive Orcas and His Book, ‘Death at SeaWorld’ – Part 2

Written by on January 10, 2014 in Interviews, Other News, Whales & Dolphins

This is part two of MST contributing writer Michael Bear’s interview with bestselling author David Kirby about the captive orca industry, and Kirby’s book, ‘Death at SeaWorld’. Read part one here.

David Kirby's Death at SeaWorldQ: As you recounted in your book, on February 24, 2010, the killer whale named Tilikum killed one of SeaWorld’s most experienced trainers, Dawn Brancheau. Witness accounts differ as to exactly what happened first. Some say the version which says he grabbed her by her long ponytail was an attempt by SeaWorld to lay blame on her for the fatal event. Other witness accounts say that he pulled her in by her left arm. Was it ever determined which version was correct?

A: This remains a contentious point. SeaWorld first let the Orange County Sheriff’s Office declare that Dawn Brancheau fell into the pool. When this was debunked by eyewitnesses, the company trotted out the so-called “ponytail defense,” claiming that Brancheau’s long hair drifted into Tilikum’s mouth, and he found it a novel toy. This scenario was established by one of the trainers on scene at the time, though he later said he did not see the exact moment when Tilikum grabbed Brancheau. Other witnesses, including a security guard, said Tilikum grabbed Brancheau by her left arm and took her down that way. Both witnesses testified in court to their own recollections. The judge wrote that the ponytail theory, “was not established as a fact at the hearing, and it is in dispute”. We will probably never know, unless, perhaps, the underwater video of the attack is released to the public, which is unlikely.

Tilikum during a 2009 performance.

Tilikum during a 2009 performance. Photo credit: David R. Tribble, CC BY-SA 3.0.

Q: In your book (p.305), you refer to something that SeaWorld made mandatory reading for all new trainers, called the ‘Tilikum Safety Protocol.’ Part of that procedure included giving them what was casually referred to as the ‘Tilly talk.’ The talk was short and simple: If you get in the water with Tilikum, you will likely not survive. It seems pretty clear from this that SeaWorld was not only aware of Tilikum’s violent past, but that it had devised special procedures for dealing with him that they did not apply to other whales. Do you consider this prima facie evidence that SeaWorld knew Tilikum was a danger to trainers, since he had killed two people before he killed Dawn Brancheau?

A: Of course they knew. How could they not? Before he was moved to Orlando, Tilikum lived at a former park in British Columbia called SeaLand, which wanted to get rid of all three of its killer whales after trainer Keltie Byrne was killed there in 1991. SeaWorld knew full well what the reason was, but they desperately needed a new breeding male – and fresh DNA. Management knew Tilikum was truly a killer, but they did not let the rank and file know this for many years. And when they allowed trainers like Brancheau to be up close with him in shallow water, they committed an act of “willful” negligence, according to OSHA. The judge in the case reduced the violation to “serious,” but that is still a significant abuse of worker protection laws.

Q: In your book (p.344), you also say that the Occupational Safety and Health Administration (OSHA) has no ‘specific’ safety regulations on working with animals, wild or otherwise, in the workplace–only a ‘general duty’ clause, instructing employers to provide a safe working environment. Do you think lack of marine mammal-specific safety rules hampered their investigation at SeaWorld?

A: I don’t think it hampered the investigation, but the general duty clause was a major factor when SeaWorld appealed the OSHA ruling in November in the Federal Court of Appeals in Washington, DC. Attorney Eugene Scalia (son of the Supreme Court Justice) argued that OSHA exceeded its legal authority by undermining the “intrinsic premise” of a company’s business model, in this case, humans interacting up close and personal with killer whales. Scalia also argued that the company, “believed its protocols controlled the hazard” and thus “satisfied the general duty clause.” He added that physical contact with orcas was as critical to SeaWorld’s core business as blocking and tackling are to professional football. The feds’ restrictions to keep away from the whales, he contended, were the same as ‘telling the NFL that close contact would have to end,’ adding that the NFL saw more player injuries on any given Sunday than had occurred at SeaWorld in the past 22 years. It was a good argument, but whether the three judges accept this reasoning remains to be seen.

"If SeaWorld wins...expect trainers to be back in the water with orcas by year’s end."

“”If SeaWorld wins…expect trainers to be back in the water with orcas by year’s end.” Photo credit: eschipul via photopin cc.

Q: As of this writing, SeaWorld is contesting OSHA’s ruling that they had violated safety standards and its order that trainers ‘abate’ the hazard by maintaining a minimum distance and/or a physical barrier between themselves and orcas. SeaWorld has said that OSHA overstepped its authority in finding safety violations under its ‘General Duty’ safety clause. You were present recently when SeaWorld made their arguments before a Federal Appeals court in November of 2013. What is your sense as to how this will play out?

A: As I mentioned, I think Mr. Scalia did a good job arguing SeaWorld’s case, but I am not convinced the company will prevail. Two of the three judges are Democratic appointees, and seemed to be more concerned about worker safety than corporate ‘rights.’ If SeaWorld loses at the Court of Appeals, it will be their fifth legal defeat in a row in five attempts to overturn the OSHA violation. That’s not a good record. If they lose, I am sure they will go to the Supreme Court to challenge the constitutionality of the general duty clause. Sadly, Justice Scalia does not have to recuse himself, even though his son argued the appeal. If SeaWorld wins, on the other hand, expect trainers to be back in the water with orcas by year’s end. They say they have “no plans” to resume ‘waterwork’ at this time, but then again, Hillary Clinton says she has no plans at this time to run for President.

Q: And finally, for those who are convinced that captivity is bad for orcas and other living things, like humans, what is the solution for orcas currently in captivity? There is a heart-rending video which shows a couple of professional orca trainers trying to teach a captive orca how to hunt fish–without much success. The death of Keiko (the orca in the film ‘Free Willy’) is often cited by the display industry as a ‘failure’ study on how ‘not’ to return orcas to the wild.

In a recent CNN column, orca expert Dr. Naomi Rose has proposed setting up large-area, enclosed sea pens where older captive orcas could be retired. A fundamental premise of these sanctuaries would be that eventually, they would no longer be needed. Breeding would not be allowed and captive orcas would no longer exist within the next few decades.

What do you think of her idea?

A: Dr. Rose is one of the most knowledgeable and experienced killer whale experts in the world, which is why she became the chief protagonist in ‘Death at SeaWorld.’ Meanwhile, there is no evidence to show that Keiko died because he was released into the ocean. I agree that ending the captive breeding programs and gradually retiring whales to sea pens is a wonderful idea. Most animals used in entertainment get to retire to a sanctuary at some point, after earning money for their owners. These captive killer whales have helped generate billions of dollars and kept tens of thousands of people employed. Don’t we owe them something in return? With sea pens, the orcas could live a more natural life, in the natural ocean, without having to perform tricks for food. Tourists could come observe the animals from a discrete distance, perhaps with a naturalist on site to explain the various behaviors (natural ones, not backflips) that the whales exhibit. And of course, SeaWorld would still own the orcas, and could charge admission for people to come view them. It would be a PR triumph for them, something they must desperately desire at this point. Retirement to sea pens would be good for the whales, good for the public, and good for SeaWorld. It’s a win-win-win that, I predict, may one day become reality. I certainly hope so.

Interviewer’s Note: I would like to thank Dr. Naomi Rose, Dr. Lori Marino and Dr. Jeff Ventre for their assistance.

If you missed part one, here it is.

Copyright © 2014 by Marine Science Today, a publication of Marine Science Today LLC.

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