by David Kirby
Meanwhile, the SeaWorld parks would continue the vital work of rescuing wild animals in distress. More than fifty rescued animals were being treated by SeaWorld vets at that moment, Atchison said. In the past nine weeks alone, SeaWorld had rescued, treated, and released nearly a thousand animals.
Naomi noticed that Atchison did not specify what, if any, of that good work pertained to wild killer whales. She assumed that none of it did, or the CEO would have mentioned it. And, she asked herself, how many of those releases were successful? Did anyone monitor those animals to know if they survived?
“SeaWorld always uses its rescue operations as PR opportunities, rather than doing the right thing by animals and improving scientific knowledge about those species,” Naomi explained to people at the office who read the letter. “The work that they actually do isn’t as great as they claim. It looks good, but in the end, they can’t offer evidence of success because they don’t monitor most of the animals they release.”
SeaWorld and Stephen Schwarzman were clearly going to win this round. HSUS did not stand a chance against the Blackstone behemoth: Tilikum would remain in Florida.
* * *
John Kielty, the construction inspector from Massachusetts who was at the “Believe” show before Tilikum dragged Dawn into G Pool on February 24, decided it was time to speak up. He was disgusted with SeaWorld. First there was the misstatement about Dawn’s falling into the water. Now some of those same officials were trying to convince the public that there were no signs of anything amiss at Shamu Stadium prior to Tilikum’s rampage.
John figured the right thing to do was to contact the company directly. He wrote to SeaWorld via their website’s feedback forum and described the commotion he had seen during the “Believe” show that day, before it was abruptly ended. He also asked SeaWorld to share that information with the relevant investigative agencies working on the case.
The reply, a form letter, thanked John for his message and assured him that everything was being done to investigate the incident and prevent one like it from happening again. Nothing like it had ever occurred in SeaWorld’s history, the letter said. Nothing was more important to SeaWorld than the safety of employees and guests, and the well-being of the animals in the company’s care.
The nonresponse infuriated John. He would not be dismissed so lightly. Even though he was still in the final days of his vacation, back in Myrtle Beach, South Carolina, he reached out to media outlets to give them his account of the unrest during the “Believe” show. Several other witnesses, none of whom had been interviewed by the sheriff’s office, were also speaking out.
“SeaWorld, I know, has repeatedly said there were no problems with the animals prior to this event, and everything had gone according to schedule throughout the day leading up to Dawn’s death, and I disagree,” John told a local TV news station. “I know there’s hundreds of other witnesses who would agree with me that there was something wrong prior to her death.”
When not speaking with reporters, John spent hours on the Internet, researching which government agencies were investigating the Brancheau death, and came across the Orange County Sheriff’s Office, the Florida wildlife commission, the Commerce Department’s NMFS, the Department of Agriculture’s APHIS, and the Department of Labor’s OSHA. John wrote to them all.
“I am dismayed over reports that continue in the news media by SeaWorld staff (primarily … Chuck Tompkins) that there was no indication that the killer whales were behaving abnormally prior to Ms. Brancheau’s tragic death,” he said in his letter. “While this may be true of the few minutes immediately preceding the attack during the ‘Dining with Shamu’ segment, problems were evident during the ‘Believe’ killer whale show.” He then described what he had seen during the aborted splash section of the show and asked if SeaWorld had provided authorities with its own video record of what happened in the main pool just thirty or forty minutes before Tilikum went berserk.
Dawn might still be alive, John said, “if tighter restrictions were in place, and followed, when faced with this abnormal behavior.”
The only reply John got was from OSHA. The lead investigator on the case got back to him right away. Her name was Lara Padgett, a no-nonsense and highly trained safety and health compliance officer who had spent years in the air force protecting service members against the hazards of working in stressful conditions around weapons and live ammunition, among other duties. Lara knew little about killer whales—other than what she and her husband and kids had seen and enjoyed at SeaWorld—but she knew a great deal about workplace safety and employer negligence.
She thought she had a good case in Orlando.
Lara, a tall, forty-year-old strawberry-blond woman who favored sensible pantsuits when not on inspections, had arrived on the scene at SeaWorld at midafternoon on February 24. Lara was also OSHA’s lead inspector in the 2009 death of a monorail operator at Disney World. She immediately began collecting evidence for what would quickly emerge as one of the most complicated and contentious cases OSHA had tackled in recent memory. According to many accounts, SeaWorld would go out of its way to make the Brancheau inquest extremely difficult for the feds.
Lara began by asking to interview a large number of SeaWorld employees, including orca trainers both present and absent when Dawn died. She requested trainer records from all SeaWorld parks, but only received some of them, while SeaWorld executives denied the existence of Animal Profiles and “aggression incident books,” even though several trainers told OSHA they had personally seen them.8 SeaWorld had also said nothing about a disturbance during the 12:30 p.m. “Believe” show that day, nor the impact it may have had on Tilikum in one of the back pools, Lara told John. He was not surprised by their lack of candor and neither was Lara, who told him that SeaWorld was not very forthcoming with information.
“I’m leery of SeaWorld’s motives. They seem more interested in protecting themselves with mistruths than shedding light on this case,” John told Lara, adding that SeaWorld put profit above safety. By portraying Dawn’s death as an accidental drowning “they really downplayed the extent of her brutal death.”
Lara Padgett was not only interviewing park staff and guests—including Todd and Suzanne Connell, who reached out to her—she was consulting with as many experts on wild and captive killer whales as she possibly could. It didn’t take her long to find Naomi and allies such as Courtney Vail of WDCS and Bill Rossiter of CSI. They helped Lara and her investigation by providing her with published research on wild whales and their social behavior, with information on the stress of captivity in large, wide-ranging predators, and with contact information for cetacean specialists around the world.
Among the people on Naomi’s suggested list were Graeme Ellis, John Ford, and Peter Olesiuk of the Department of Fisheries and Oceans’ Pacific Biological Station in Nanaimo on Vancouver Island, Robin Baird of Cascadia Research in Olympia, Washington, and Dave Duffus of the University of Victoria, British Columbia, the professor who headed up the Keltie Byrne coroner’s inquest back in 1991. Lara also contacted industry experts from outside SeaWorld, including members of the independent panel the company had assembled to review its killer whale safety procedures and make suggestions for any needed improvements.
Most of the wild whale experts responded enthusiastically and sent Lara their professional opinions on the matter. In contrast, most of the industry experts begged off the request to assist OSHA in its inquest, usually by citing a lack of firsthand knowledge of the actual events. Privately, Lara would learn, many of them were complaining to SeaWorld about her outreach to them.
Some of the wild orca experts, however, were reluctant to get involved. In an e-mail to one of the foot draggers, Lara laid out her reasons for seeking help.
OSHA had no regulations on working with animals, Lara explained. If the agency were to pursue a violation, it would have to issue a “general duty clause” citation. Under that clause, Congress ordered every employer to create a place of emp
loyment “free from recognized hazards that cause or are likely to cause death or serious physical harm to employees.”
To prove such a violation, OSHA would have to show that “a condition or activity in the workplace presented a hazard to an employee,” Lara said. It had to be a “recognized” hazard likely to cause death or serious physical harm, “with a feasible means of eliminating or greatly reducing the danger.” Finally, the evidence had to show that the employer “knew, or with the exercise of reasonable diligence, could have known of the violative conditions,” Lara wrote.
Given all the previous human injuries and deaths involving its killer whales, Lara said she was “looking at recommending that SeaWorld should keep their staff out of the water and in the near proximity to the pools.” The company had already attacked her credibility, she added, “because I do not have expertise to express opinions on killer whales—they are right, all I have is a BA in Management and 17 years in employee safety—that is why I am reaching out to every orca expert that is willing to weigh in.”
Back in 2007, SeaWorld had cowed Cal/OSHA into rescinding its own reprimand of the company and even issuing a public apology. Lara Padgett and her colleagues were painfully aware of that. They were determined to prevent a repeat of any kind of capitulation. Naomi was equally determined to help them.
* * *
SeaWorld would need all the PR assistance it could muster if park officials were going to convince the public that Dawn’s death was a bizarre accident and that Tilikum was merely “playing” with her ponytail. That task became considerably more difficult on March 31, when Dawn Brancheau’s autopsy was released.9
In the opinion of the medical examiner, the death was the result of “drowning and traumatic injuries,” though there seemed to be far more evidence of trauma than of drowning.
According to the report, Dawn had sustained multiple blunt-force injuries of the head and neck, including the avulsion (ripping away) of the scalp and associated bleeding of the skull, lacerations of the right ear, abrasions of the left cheek, fracture of the mandible (lower jaw) with associated laceration and hemorrhaging of the oral cavity, fracture of a cervical vertebra, bleeding from the spinal-cord outer membrane, and softening of the spinal cord.
Blunt-force injuries of the torso included abrasions of the left upper back, fractures of three ribs, fracture of the sternum, lacerations of the liver, and blood in the abdominal cavity. The arms and legs also suffered abrasions, lacerations, and contusions (bruises), with a complete tearing away of the left arm and dislocation of the left elbow and left knee.
The evidence of drowning, listed at the end of the findings: approximately four milliliters (one-seventh of an ounce) of liquid in one sinus chamber.
Jeff Ventre and John Jett found the autopsy odd. To begin with, the evidence of drowning was listed almost as an afterthought, with nearly all of the evidence pertaining to traumatic injuries. Yet in the summary, which was picked up and repeated by media outlets around the world, the causes were put in reverse order.
“My gut reaction is that this is potentially misleading, though it may not have been written with that intention,” Jeff, the MD, said to his friend. “But why was drowning listed before trauma?”
What’s more, evidence of drowning was flimsy. Why was there no report of fluid in the lungs, which would have been a sure sign of asphyxiation by water? “The small amount of water in her sinuses could have been there from a regular show sequence,” Jeff said. For example, when trainers went to the bottom to prepare for a hydro maneuver, water was routinely pushed into their sinuses. “That helps create the perception that this was a tragic drowning, not a brutal killing.”
John agreed that four milliliters of liquid in one sinus was hardly enough to demonstrate that Dawn had drowned. “I probably use two milliliters of toothpaste on my toothbrush,” he said. “I routinely had that much water in my sinuses following water work, and I still do after scuba diving or snorkeling.”
Naomi was also disturbed by the autopsy. The attack was much more serious than she had thought. She mentioned her concerns to Lara Padgett at OSHA and also wrote them down for a small number of colleagues to consider.
“The number and type of injuries she had obviously set this incident well apart from the other two in which he was involved,” Naomi contended. “Rather than merely preventing her from leaving the tank (inflicting only minor cuts and contusions) and eventually holding her under until she drowned, this time Tilikum shook and slammed her around, inflicting several serious traumas (severing her spine, breaking her neck, breaking other bones—these are signs of serious intent of some kind, although I’m still not convinced he meant to kill her).”
Whatever he meant to do, Tilikum was “extremely agitated,” Naomi wrote. “What snapped in his brain that led him to beat her up so badly, after 27 years of never showing QUITE this behavior before, and after 11 years of relative calm?”
That answer might never be known. Even so, something was “seriously wrong here,” Naomi added. “Whether it was the result of her high energy behavior or whether he really has just had enough of small spaces—or whether he’s just finally gone mad—I don’t know.”
Some circles speculated about the feeding habits of Icelandic orcas. Was Tilikum actually raised to eat marine mammals, and not fish, like a Transient whale? Naomi didn’t think so. That sort of prey-handling behavior would have been learned in his first three years of life. If that was the case, it was “hard to explain why this would only come out now,” she said.
During her investigation, Lara would hear from a killer whale expert from the UK who could help shed some light on Tilikum’s natural diet and hunting instincts. Andrew Foote, PhD, of the University of Aberdeen, had studied Pacific and North Atlantic killer whales since 2000, including the population from which Tilikum had been taken, he told Lara in a letter to OSHA.
Foote wrote that fish-eating Resident-ecotype whales take marine mammals such as porpoises and “apparently ‘play’” with them. This involved dragging the animals underwater, tossing them in the air, and blocking any escape with their bodies until they drowned.
The Icelandic population, like the Pacific Resident ecotype, was known to feed upon herring, Foote said. But recent research found that certain whales photographed near the area of Iceland where many orcas were captured also hunt seals around the Shetland Islands of Scotland. “During summer months they specialize in taking these mammals,” he observed. Photo-identification and genetic testing suggested they were part of the same population seen feeding on fish. In other words, Tilikum might naturally have preyed upon herring and mammals.
Killer whales were “capable of causing injury or death to smaller mammals such as ourselves, either through predation or ‘play’ behavior,” Foote concluded. “The conditions under which they are kept at SeaWorld represent a severely impoverished environment and may be an additional factor that could cause unpredictable behavior.”
OSHA’s investigation attracted a lot of attention around Orlando. Before long, Lara was being contacted by people on all sides of the captivity issue. Some of them were trainers, still working at SeaWorld, who did not want to be publicly identified. One of them chided Atchison for telling the media that Tilikum was never separated from the female killer whales (something that even Thad had contradicted). “To put it bluntly, that is a lie,” the trainer wrote. Mostly, Tilikum was kept isolated from the females. “Jim Atchison knows this and yet he told the press the exact opposite.”
The trainer went on to say that Tilikum became agitated “when the females are out doing the shows and he is left completely isolated,” as was the case at midday on February 24. The writer also claimed that, up until a few years ago, trainers were never allowed in the water with Tilikum—even on a shallow watery ledge the way Dawn had done. All interactions with him had to be conducted from behind a wall in one of the back pools. They confirmed what Thad had told the media: Trainers never got that close when he was corporat
e vice president.
The trainer brought up another possible contributing factor for the attack, in addition to Tilly’s isolation and Dawn’s dangerous (and previously forbidden) proximity to him. “Potential corporate sponsors may have been in attendance at that Dine With Shamu show along with SeaWorld corporate staff,” the writer speculated. While Dawn was not told to violate any safety protocols, “she may have been asked to ‘get as intimate’ as you can with Tilikum to impress our clients.”
The trainer worried, “Our fear is that Dawn will get the blame for something when she was simply following orders.”
34
Oversight
Given all the news about SeaWorld, much of it unflattering, Naomi thought it was time to bring in the big guns of Congress—that is, if members of a key committee in Washington could be convinced to hold a hearing. Within a week of the incident, she began contacting sympathetic Capitol Hill staffers to gauge their bosses’ appetite for a hearing on the nation’s lucrative and underregulated marine mammal industry.
Naomi contacted a friend who once worked for the International Fund for Animal Welfare (IFAW) and was now on the majority staff (Democrats controlled the House in 2010) handling marine mammal issues for the oceans and wildlife subcommittee of the House Committee on Natural Resources. The contact asked Naomi if she would like there to be an “oversight hearing.”
That was the top item on Naomi’s wish list.
Most congressional hearings are related to particular bills or ideas for bills. But Congress can also hold oversight hearings on existing laws and policies. They are typically called after some issue makes big news—steroid use among professional baseball players, say, or cars with faulty brakes. Because this was the oceans subcommittee, its oversight was limited to the industry’s adherence to the Marine Mammal Protection Act, which since 1994 had been limited to the educational aspects of public display.
