by David Kirby
Back on the East Coast, Naomi watched the whole drama unfold with a boatload of aggravation. First of all, what did Scarpuzzi mean by “if this were to ever happen?” It had happened in the past, she thought, shaking her head in disbelief. And it was clearly going to happen again.
Only next time, someone might lose his or her life.
Naomi’s phone was now ringing constantly. She was the media’s go-to source for all things captive killer whale. She told reporters that the frightening attack was yet more evidence that orcas were unsuited for public display and performing tricks for audiences. “The risk of a tragic outcome is too great,” she told the Los Angeles Times, “for the trainers and the whales.”
But Mike Scarpuzzi “rejected Rose’s assertion and said that the public’s concern for the welfare of large marine mammals comes in large part from shows and research at SeaWorld parks,” the Times said. “He noted that although the whales are trained, they remain wild animals, with a degree of unpredictability. ‘They are killer whales. Even though we’ve had thousands and thousands of good interactions, we are going to have some that don’t go well.’”
Well, now there’s an understatement, Naomi mused.
When Jeff Ventre heard about the accident, he was a third-year medical student doing an internal-medicine rotation at St. Luke’s Hospital in Kansas City, Missouri. Ken Balcomb had referred a reporter from ABC News’ Nightline to Jeff. They wanted a former trainer to come on and talk about the dangers of working with killer whales. But Jeff declined the interview. Not only was he busy in school, he didn’t know Ken Peters, and he had never worked with Kasatka.
Meanwhile, the State of California had become increasingly interested in events at SeaWorld that did not “go well.” They opened an occupational safety investigation of the latest Peters/Kasatka encounter. The state agency in charge was the Department of Industrial Relations, Division of Occupational Safety and Health, otherwise known at Cal/OSHA. In 1970, when Congress created the Occupational Safety and Health Administration (OSHA) within the Department of Labor, lawmakers included a provision allowing states to opt out of the federal program, provided that their own workplace safety requirements and enforcement equaled or surpassed those of the feds.
The Cal/OSHA investigation was thorough, and Naomi and other SeaWorld opponents were pleased to discover its official findings hard-hitting. Cal/OSHA released its verdict on February 28, 2007, three months after the Peters/Kasatka incident. Naomi was sent a copy. The report was not exactly a full condemnation of SeaWorld, but its implications were still something the multibillion-dollar industry would find disturbing, if not outright threatening.
The agency issued two documents: a two-page Information Memorandum, and a more detailed eighteen-page Narrative Summary of the attack and its historical context.
The best news for SeaWorld was that Cal/OSHA did not issue citations for any serious safety violations. “The employer has taken reasonable and responsible steps to correct the hazard in accordance with industry practices,” the agency said. “Suggested modification of existing emergency procedures and training responses were also identified.”
But the Information Memorandum drew SeaWorld’s ire. Cal/OSHA duly noted that SeaWorld had relied on training to reduce aggression and developed emergency procedures for employees who became endangered. “The employer has been following industry standards and is recognized as a leader in training killer whales for performance. The employees are well trained and followed existing emergency procedures in this instance.”
But then the agency stated the indisputable: “These procedures were not entirely effective at stopping the unwanted behaviors of the killer whale during this attack.”
If the procedures weren’t effective, Cal/OSHA concluded, then being in a pool with killer whales could not be classified as a safe work environment.
“Short of eliminating all of the water work in interactions with the killer whales, there is no guarantee that employees can be kept safe from an attack by a killer whale once they get in the water with the animal,” Naomi read. She took that sentence to mean that the only true remedy to the hazard was an end to water work, period—something she felt would carve deeply into SeaWorld’s thrill-driven bottom line.
Instead of a fine and a citation, however, Cal/OSHA’s Information Memorandum offered eight “suggestions” for improving safety. Some of them SeaWorld was already implementing, or at least considering. Others, to the industry, were outrageous and out of the question:
1. Improve control of the behavior of the killer whales by reducing their environmental stressors and stresses from performances, interactions, and activities that take away from the time that the trainers and the whales need to reinforce social bonds, and allow the trainers sufficient time to focus on the whale and training of the killer whales.
2. Having more orcas within the population to choose from for various interactions would reduce the stress on individual animals and help to keep the trainers from having to rely on one or two animals for the majority of their performance tasks.
3. The presence of calves within the population can be a stressor both to the mother and to the other whales. A separate, non-performing population used for reproduction only could eliminate this stress within the performing population.
4. Animals not used for reproduction may benefit from surgical or chemical sterilization, demonstrated as effective in controlling unwanted behavior, particularly aggression, in a variety of domesticated mammals.
5. Additional shepherd’s hooks and/or rescue and resuscitation devices should be located at the slide-out with the emergency net.
6. The employer should continue to investigate portable breathing devices such as but not limited to the “Spare-Air” model that could be worn by any trainer before they enter the pool with a killer whale.
7. Improve communication methods in the stadium so that trainers located at the slide-out and trainers on the stage can effectively communicate with each other during a show.
But this suggestion was what most alarmed SeaWorld officials:
8. The employer should also consider that lethal force against a killer whale may have to be used to save the life of a trainer where an aggressive whale is out of control and not responding to other available control measures. This could be either above the water or in the water by means such as but not limited to a bang stick deployed by one or more divers in scuba gear.
Cal/OSHA’s Narrative Summary provided fascinating insight into what went on backstage at SeaWorld, including the factors that drove captive killer whales to aggression—and how SeaWorld planned to combat the problem. It suggested that the SeaWorld parks had been pushing their killer whales and trainers too hard to continually outdo themselves in their daring water work feats—all for the purpose of drawing crowds back to the park each year. The report also included a blow-by-blow description of the Peters attack. It read like the shooting script of a Hollywood horror movie.
A leading cause of aggression in captive orcas, of course, was stress. “Common environmental stressors are food, territory or space, reproduction, and social interactions,” the summary said. “Of great concern in any captive population is the lack of activity and a sterile, unchanging environment. These are stressors that can result in boredom and subsequent abnormal behaviors.”
If killer whales do not have enough to do, the tedium will cause stress and aggression. But the opposite extreme might be true as well. All of the trainers interviewed by Cal/OSHA officials complained that the extra workload created by special VIP events and other interactions outside the regular shows were reducing the time they could spend on enrichment activities.
The relatively small tank size might also be stressing the whales. “These animals have responded and adapted fairly well to their spatial limitations,” the summary said. “But the extent to which it is a stressor cannot be entirely known. An animal capable of traveling hundreds of miles is going to have some physical and psychological
issues with being confined to a swimming pool. The drooping dorsal fin of a captive male orca (as seen in Ulises, San Diego’s only adult male) has been attributed to a lack of long distance swimming and reduced muscle strength.”
The presence of orca calves within earshot of performing whales was also deepening the dilemma. Some trainers told investigators that 90 percent of the problems they had with orcas were caused by calves. “The dam is always going to be protective of her calf,” the report said. “And that kind of behavior is instinctual, and no amount of training is likely to supersede those instincts.”
The criticism of SeaWorld’s killer whale program only got worse from there. “Orcas are still wild, whether they were captured in the wild or bred in captivity, and as wild animals they can be completely unpredictable and unpredictable is dangerous. It is true that dangerous wild animals are often kept in zoos all over the world, but their keepers aren’t at risk of being attacked because they don’t perform, interact or get in a cage with the animals in a zoo.” The show-business glitz of SeaWorld made it “closer to a circus than a zoo,” Cal/OSHA said. “And yet even a six ton tiger might not be as fearsome if you didn’t have to swim with it. The humans that swim with and perform with orcas in this setting are putting their lives in danger every time they jump into the pool.”
Though only a tiny fraction of interactions had resulted in orcas going “off behavior” and threatening or attacking their trainers, “these two incidents in one month alone are somewhat alarming,” the report warned. “In combination with the attack in Texas in 2002 [it] might be indicative of an alarming trend, possibly related to the demands of the new show and increased water interactions.”
All of those incidents offered another frightening lesson: “Once the animal goes ‘off behavior,’ they are essentially out of control of the trainers.” As one employee put it, trainers lose control of the whales until “they are done being off behavior.” In other words, the whales, not the trainers, decided when the danger would pass.
Fortunately for Ken Peters, his “training and sense of calm” allowed him to wait out the rampage and finally escape. But “not everyone would be able to have such an extraordinary presence of mind while in the jaws of an animal that is capable of killing him,” Cal/OSHA said. It was foolhardy and dangerous to “disallow our own primal fears [that is, the fear of being killed] to entirely rely on the actions of the victim to free himself.”
The report minced no words in questioning the financial motives for SeaWorld’s tolerance of water work hazards to its employees:
This is a marine park with a goal of conservation and education, but it is also in the business of entertaining. Shamu the killer whale has always been at the forefront of their marketing and advertising and is probably the main reason why people visit the park.… In order to maintain interest in the Shamu show, the employer has to make sure that they are doing something that the audience hasn’t seen before. So each year is bigger, brighter, more spectacular, etc. Part of that is marketing but they have also increased their demands on both the orcas and the trainers to bring in something new and exciting each year in order to keep audiences coming back year after year.
Cal/OSHA knew that the use of lethal force to stop an attack would not be adopted at SeaWorld. “Animal trainers believe that they know the animal, and they also believe that they can control the animal. This is an emotional response to their close association, bonding and training with the animal. It is clear that they have not considered use of lethal force as an option. However, at some point they may have to make a choice between a dead human or a live animal.”
But even if trainers did make that choice, how would they kill an incensed orca with a trainer in its mouth? (It was hard to shoot an animal underwater, and the bullets might strike the victim.) Loud explosives (which can kill cetaceans but spare humans) were one option. “Bang sticks of sufficient caliber could be used by a scuba diver if he could get close enough,” Cal/OSHA said, adding that such an extreme step would “naturally” come as a last resort.
Of course, that was assuming that SeaWorld allowed its trainers to resume water work, the report stated, “because the best solution is to not get in the water.”
The report’s final conclusions were damning:
The contributing factor to the accident, in the simplest of terms, is that swimming with captive orcas is inherently dangerous. The trainers recognize this risk and train not for if an attack will happen but when. The orca is capable of tearing off an arm, a leg, or a head, and if that is against its nature it could easily drown a human or trap it in the cold waters of the tank until the human expires from hypothermia. Even if the animal does not have the intent to kill, the bulk and weight of its body is enough to smash a person against the sides of the pool, knocking them unconscious or crushing them to death. Unfortunately, even with the best procedures and the best trained staff, there was little that the employees in this case could do to rescue their coworker when the tools they had at their disposal failed to sufficiently distract the orca or cause it to return to normal behavior.
In both the Orkid and the Kasatka incidents, the animals “were probably gentler in these cases than they would be in the wild,” the report surmised. “But even their ‘gentle’ bites still managed to do considerable damage to frail human flesh. Any less gentle and these injuries would have been much worse.” For example, if the orcas shook trainers underwater and caused their heads to be “smacked against the sides of the pool,” Cal/OSHA said, “they might not have even survived.”
The safety agency then issued a highly prophetic warning: “If someone hasn’t been killed already, it is only a matter of time before it does happen.”
Extraordinary as the document was, the political maneuvering and corporate cloak-and-dagger intrigue that ensued was even more dramatic. Naomi learned from a friend and colleague, Bill Rossiter, of Cetacean Society International (CSI), that SeaWorld was trying to get as much of the Cal/OSHA citation overturned as possible. CSI had been following the entire Cal/OSHA investigation since November, and Bill was incensed at the undue influence SeaWorld was exerting to dilute the report.
SeaWorld was strongly objecting to the entire “Information Memorandum” and demanded its withdrawal, arguing that such a document should only be authorized when an actual violation of safety standards was identified. As for the “Narrative Summary,” company officials complained that most of its contents went far beyond the expertise of the investigators and should likewise be deleted (even though it was based on interviews with SeaWorld’s own trainers).
Bill and Naomi were contacted by a Cal/OSHA supervisor, who told them how adamantly the company was fighting to have as much of the report retracted as it could. “This whole request seems so stupid to me,” the supervisor said. Even if the document was redacted and vastly changed, the original document would remain online for all to see, he said.
SeaWorld met in San Diego with Cal/OSHA officials to launch objections to the report. During a follow-up conference call the next day with senior Cal/OSHA leadership in Sacramento, the state agreed to revise the document. “Much of the information in the report reflects a complete lack of understanding of the complexities of marine mammal biology, behavior, and husbandry,” Mike Scarpuzzi told reporters.4
Even so, he said, SeaWorld was reviewing safety procedures and had already adopted three of the eight recommendations: installing shepherd’s hooks, an emergency intercom system, and the exploration of emergency “spare-air” supplies that could be carried by trainers while in the water with killer whales.
On March 2, 2007, Cal/OSHA sent out a press release announcing it had “revisited” the Peters attack reports. The agency had issued the Information Memorandum “in violation of its own policies and procedures,” the statement said. “This error is being addressed and Cal/OSHA regrets the difficulties it may have caused SeaWorld, its staff, and its patrons.”
The turnabout was not only breathtaking, it was u
nprecedented.
“Cal/OSHA realized its error when it met with SeaWorld officials yesterday to discuss these reports,” the state’s mea culpa continued. “As a result, Cal/OSHA will take corrective action, including withdrawing the ‘Information Memorandum.’” The agency added that it would “thoroughly review” the Narrative Summary and make any revisions to that document as needed. “Cal/OSHA acknowledges that many of the statements made in the ‘Narrative Summary’ require expertise in animal behavior, which Cal/OSHA does not have. Also, some of the expressions of opinion and other statements contained in the report stray from describing the evidence and are clearly inappropriate.”
The official about-face in just two days was a staggering triumph for SeaWorld and Anheuser-Busch. Naomi would later be told that SeaWorld had put extraordinary pressure on the state to rein in what the company felt was the excessive meddling of Cal/OSHA. Governor Arnold Schwarzenegger, a friend and political ally of August Busch III’s, reportedly intervened personally to ensure that SeaWorld got what it wanted.
Naomi learned that the withdrawal of an Information Memorandum was not unprecedented at Cal/OSHA, but the rewriting of a Narrative Summary was positively unheard of. It was time to fight back. Bill Rossiter told Naomi he was determined to keep the Narrative Summary of the Peters case intact, and he wanted her help.
On March 12, Bill wrote to Cal/OSHA’s San Diego district supervisor, Luis Mireles, in a letter of protest signed by thirty-nine organizations in the United States, Canada, Japan, France, Mexico, and elsewhere, urging the agency not to retract any of the Narrative Summary.
“This event was neither unique nor unusual,” Bill wrote. “We urge Cal/OSHA to maintain a strong position on the issue of trainer safety. If Cal/OSHA fails to act for human safety, the agency becomes complicit in the next tragedy, which is, as initially stated, ‘only a matter of time.’”
