by David Kirby
Finally, as for the “scary ocean” rhetoric, it was true: Pollution and other human-caused hazards were critical problems that demanded solutions. But, Naomi said, “I think the self-congratulatory tone of the public display representatives at this hearing is discordant with that.”
This was not to excuse the environmental protection community, Naomi assured the subcommittee. All sides were “missing the boat in getting people to adequately change their behavior and wake up and recognize how serious this situation is, and how much their individual behavior matters and counts. To be perfectly blunt, as someone who works in regulatory and legislative endeavors around the world to try to protect these animals, I don’t see this great education that is occurring, apparently, at these facilities.”
Naomi noted in closing that Britain had one of the “most staunchly conservation-oriented publics … they are strongly antiwhaling … they are an island nation who feel they must protect the marine environment.” Yet there were zero cetacean displays left in the UK. “Clearly they are getting their marine education, their marine ethic, from some other source.”
When the hearing adjourned, Naomi was told by the HSUS public relations representative who attended the proceedings that she had overheard an industry representative on his cell phone out in the hall. “Yeah,” the official had said, “that woman who testified for the Humane Society … she was pretty articulate.”
Naomi was energized by the event. The opposition was not used to being under a microscope. A few years earlier, this inquiry would never have taken place: The display industry would have brought out its big guns and killed the very idea of an oversight hearing long before it gained a foothold on the Hill.
A few days later Naomi sent an e-mail message of hopefulness to some HSUS colleagues. The majority staff wanted to introduce a bill to address all issues related to public display—including educational oversight. “I am working with my colleague on public display lobbying, Courtney Vail of WDCS, on an outline of a possible bill,” Naomi wrote. “I don’t want to be overly optimistic, but the momentum on this issue seems to be in our favor for the first time in a long time … maybe ever.” At the very least, she said, “We may finally convince the public to question the value of orcas on display, which might affect the marine theme parks’ bottom line.”
Six months later, voters would sweep the Republicans into power in the House in a stinging rebuke to President Obama’s economic and health-care policies. With the environmentally friendly Democrats now banished to the minority and the pro-business, anti-regulation GOP in control, Naomi’s hopes of amending the MMPA would have to wait at least two years—if not more.
35
Citation
After the congressional hearing in late April 2010, the Dawn Brancheau controversy shifted onto the back burners of American conversation and media scrutiny. But by no means did it fade away.
As the spring and summer swept by, combatants on all sides of the reinvigorated anti-captivity issue braced themselves for the findings of the OSHA investigation. The stakes could not have been higher. If OSHA found that SeaWorld had willfully violated federal worker safety laws by allowing Dawn to assume such a dangerous position with a whale already involved in the deaths of two people, it would be a huge blow to SeaWorld, and to Blackstone’s investors. The publicity would be bad enough. But a high-level citation from the feds would carry significant consequences for the theme park company and its new owner.
A “willful” violation, as opposed to, say, a “serious” violation, would expose SeaWorld to a high level of liability, especially in regard to Dawn’s husband. Scott Brancheau was keeping a low profile in his private mourning and not speaking to the media—at all. Second, such a black mark on the safety reputation of SeaWorld might send the premiums on its liability insurance up into prohibitively expensive territory.
But mostly, SeaWorld was worried about whatever type of “abatements” OSHA might mandate to resolve the safety issues in its workplace. In the worst-case scenario, from the company’s point of view, the federal government would order all trainers out of the water during Shamu shows permanently.
Lara Padgett and OSHA, meanwhile, had a statutory deadline of six months from the date of the incident to finalize their report and possibly issue a citation for any safety violations. Everything had to be wrapped up by August 23, 2010. As Naomi, Jeff, Howie, and other anti-captivity advocates learned, SeaWorld officials would drag their feet in the OSHA investigation by withholding materials or denying they even existed, trying to block interviews with park employees, complaining about the agency contacting activists, marine mammalogists, and officials at other marine parks, and doing everything to prevent the issuance of any citation at all through SeaWorld’s considerably powerful network of lobbyists, lawyers, and loyal lawmakers on Capitol Hill.
OSHA was going to need every day available to pull the final report together.
Even as Naomi Rose toiled hard to furnish OSHA with contacts, research papers, and other information, Jeff Ventre and John Jett—along with Howard Garrett of the Orca Network—were working with DC-based journalist Tim Zimmermann as he completed his eighty-seven-hundred-word investigative article, “The Killer in the Pool,” for Outside magazine. Tim’s research had been exhaustive and highly productive. In addition to Naomi, the former trainers Jeff and John, Ken Balcomb, and other industry critics, Tim had secured an interview with Kelly Flaherty Clark and Brad Andrews at SeaWorld.
On a trip to Florida, Tim also spoke with former SeaWorld employee Thad Lacinak, as well as John Jett and Mark Simmons. John and Jeff suggested that Tim speak with Mark. The three of them were still friends, despite the tough language Mark had used against John in his unpublished blog for AC-360.
On Mother’s Day weekend, when Jeff flew into town from New Orleans to spend time with his parents at their Lake Mills home, he invited both of his old buddies out to the place for some beers and fond memories. It was a good day. The guys agreed to disagree about killer whales and captivity and left it at that. Instead they spent the warm afternoon catching up and discussing Mark’s company, Ocean Embassy, which had reportedly been involved in the capture and sale of wild dolphins. Mark bragged about sustaining zero dolphin fatalities in his operations. Jeff and John found the discussion surreal. It was difficult for them to fathom how their dear friend could be pulling wild dolphins from the ocean. The détente would not last long.
* * *
Life for Tilikum had radically changed after he killed his trainer of six years. The massive bull—twice the size of any other killer whale at SeaWorld Orlando—now swam alone in his own artificial “habitat.” As Naomi had testified in Congress, no one would touch him—quite literally. Tilikum must have felt like a pariah.
Did Tilikum realize what he had done to Dawn? Surely he was aware that the friendly blond woman with bright eyes and warm smile no longer came around to feed, train, or play with him. Instead of rubdowns and other forms of touching by other trainers, Tilly’s tactile stimulation mostly came from a brush fastened to a pole, or a fire hose blasting against his skin—pointed from a safe distance away.
The notorious whale was now approaching thirty, the mean life expectancy for wild male orcas, at least among Northern and Southern Residents. In nature, he might live another ten or twenty years—or perhaps even more. By SeaWorld’s standards, however, Tilikum was geriatric. Indeed, captivity defenders routinely maintained that Tilikum was too “old” to be suitable for release or retirement to a sea pen, even though male killer whales his age were thriving in the sea.
According to a reliable source with access to backstage information, Tilikum was now separated from the other whales more than ever before—with one exception: the high-spirited Taima. The clever and mischievous female, now twenty, was still adored, despite her moods and occasional bouts of aggression. But around 2000 (the exact date is not clear) SeaWorld trainers stopped doing water work with her.
After February 24, 2010, Taima
and Tilikum spent a lot of time together in the same pool. With the harsh spotlight now turned on SeaWorld, park officials were desperate that Tilikum be seen and photographed with a companion, observers speculated. Whatever the reason, the two whales grew closer.
Like Tilikum’s, Taima’s life had hardly been rosy. Her younger half sister Nyar suffered from physical and cognitive ailments and passed away before age three. Their mother Gudrun died horribly after a stillbirth. Taima then turned violently against her first calf, Sumar, a son sired by Tilikum in 1998, who was transferred to San Diego for his own safety. Two years later Taima and Tilikum had a second calf, another male, named Tekoa. Taima started out as a better mother than before, nursing and bonding with Tekoa, but soon turned against the youngster, who had to be separated to another tank. (In 2006, Tekoa was shipped to Loro Parque, where, in 2007, he repeatedly slammed trainer Claudia Vollhardt, seriously injuring her.)
In March of 2007, Taima had given birth to another calf, a female, also sired by Tilikum, and given the name Malia. Taima was occasionally rough with this calf as well, sometimes displacing her onto slide-out areas and blocking her return to the water. Other times, however, Taima was affectionate with her daughter.
In December of 2008, when Malia was not even two, Taima was impregnated—once again by Tilikum.
Pregnancy seemed to calm Taima, though she reportedly devised a devilish way to startle park visitors during gestation. She would use her considerable charisma to engage tourists and beckon them to approach the viewing window, the source said, then slam the glass with a violent thwack of her head. Taima seemed to sincerely delight in scaring her audience. “SeaWorld is still trying to stop the other orcas from doing this, after they learned it from Taima,” the insider said.
During the last show of the day on June 5, 2010, Taima went into labor. The show was canceled. She remained in labor overnight and into the following morning. Eventually, she delivered the placenta, but not the calf, which was dead inside her and in an unusual position in the birth canal. The calf was turned in such a way that Taima could not deliver it naturally. In the frenetic attempt to extract the dead calf, Taima herself passed away. Her death, reminiscent of her mother’s, was supposedly gruesome.
The “Believe” show resumed the very next morning. SeaWorld “put on a show about their bond and love for these animals,” the source said. “There will be no service to remember her, no memorial, and no consideration for Taima’s memory. How can those closest to Taima shrug off her terrible death and go on with the show flashing a cheery smile after watching their friend die hours before?”
Given its proximity to the Brancheau tragedy, Taima’s death was big news—much bigger than it would otherwise have been. Dr. Chris Dold, SeaWorld’s vice president of veterinary services, said stillbirths were more common in the wild than at SeaWorld.
Naomi blasted that claim in a news release: “SeaWorld has been quoted as saying that successful birth rates for orcas are about 50 percent in the wild and 85 percent at SeaWorld; that stillbirth rates in the wild are significantly higher than at SeaWorld; and that no orca has died while giving birth at SeaWorld in twenty-five years. None of these statements is true.”
She cited one study estimating that the survival rate, up to six months of age, in the wild was 60 percent. Survival at birth “would of course be higher,” Naomi said. Actual stillborn rates in nature could not be determined. “Births are rarely observed in the wild, let alone stillbirths.” It was “simply nonsense to state that the wild can be compared unfavorably to SeaWorld in this regard.”
At least four orcas had now died while pregnant or in labor at SeaWorld. As for Taima, “I have a weird idea,” Naomi wrote privately to some colleagues. “What if the whales noticed something was off with her pregnancy back in February, and THAT’S what was causing the ruckus in the performance tank that day and got Tilikum all riled up? If Taima didn’t feel right, or the calf was sitting wrong, she might have been quite testy.”
As for Tilikum, his solitude was now more manifest. In late February, he had lost his longtime trainer. Now, in early June, his closest orca companion had vanished as well.
* * *
In late June of 2010, SeaWorld went on the counteroffensive, in a fourth-quarter attempt to head off a damaging final OSHA report and citation. On June 28, Jason Garcia reported in the Orlando Sentinel that the company had “reached out to OSHA about the possibility of negotiating a settlement even before the safety probe is complete.” Such “pre-citation settlements” were rare, Garcia wrote, and SeaWorld would pay a price if it managed to wrangle one: It would have to agree to “worker safety changes” at its parks.
Still, settling with the feds would herald a welcome respite for the beleaguered company. A preemptive agreement “could allow SeaWorld to effectively blunt any fallout from the closely watched probe by ensuring that it ends as quickly as possible,” Garcia wrote, “and by avoiding the kind of scathing indictment that investigators issued three years ago after a separate incident at a SeaWorld in San Diego, when they declared it was ‘only a matter of time’ before a killer whale killed a trainer.”
SeaWorld had yet another motive. If OSHA slapped it with a significant violation, SeaWorld would have no choice but to appeal the citation before a judge, and the public, in an open trial that would entail “both expensive litigation costs and continued negative publicity,” as Jason Garcia noted.
It was not clear whether OSHA was inclined to even consider an advance settlement, though Lara Padgett confided in Naomi she was worried about the prospects. And Representative Alan Grayson, the Democrat from Orlando and stalwart SeaWorld booster who spoke at the congressional hearing, Naomi learned, was beginning to cast about for support in Washington. He was allegedly lobbying for a watered-down report, if not an entire dismissal of the case.
Averting federal action was not going to be easy. OSHA officials were loath to repeat the 2007 reversal that SeaWorld had extracted from Cal/OSHA. Indeed, the feds had recently “signaled a more aggressive enforcement approach for theme parks and other entertainment venues,” Jason Garcia reported in the Sentinel. Assistant Labor Secretary David Michaels, the head of OSHA, had put the entertainment industry “on notice” in May following a number of worker deaths, including at SeaWorld Orlando and Disney World.
But SeaWorld insisted it had merely “communicated with OSHA” and not entered into any negotiations “at this time,” Garcia wrote. The company had, however, retained attorney Carla Gunnin, formerly with the Labor Department and now at the Atlanta-based firm Constangy, Brooks & Smith, whose OSHA Practice Group was led by Patrick Tyson, a former top official at OSHA. SeaWorld was clearly going to fight this every step of the way.
As if SeaWorld officials didn’t have enough to deal with, on June 27, Tim Zimmermann’s article was published in Outside magazine.1 It was a blockbuster and garnered a lot of attention. Tim covered everything from the life of Tilikum to the death of Dawn, from the history of early captures to the bitter fight over captivity and the majestic sight of Southern Resident whales meandering up Haro Strait and “huffing spumes of mist into the salty, spruce-scented air.”
Tim wrote that the incident with Dawn had come as “a shock to Americans accustomed to thinking of Shamu as a lovable national icon, with an extensive line of plush dolls and a relentlessly cheerful Twitter account.” SeaWorld was hoping to avoid exactly this kind of high-profile coverage, and it may have prompted Director of Animal Training Kelly Flaherty Clark to speak out and help soften and humanize the company’s mien.
“Every safety protocol that we have failed,” she told Tim one month after Dawn died, her voice “still tight with emotion,” he wrote. “That’s why we don’t have our friend anymore, and that’s why we are taking a step back.”
As for the key question about what triggered the attack, Tim turned to Jeff Ventre. “Some trainers believe that killer whales are acutely aware of what they’re doing,” Tim wrote. He then quoted Jeff: “I’
ve seen animals put trainers in their mouths and know exactly what the breaking point of a rib cage is. And how long to hold a trainer on the bottom.… Tilly was a good guy that got beat down by the women.… So there are a lot of reasons he might be unhappy.”
John Jett told Tim that sometimes Tilikum “might be ‘off’ for days, ‘splitting’ from his trainer to swim at high speed around the pool, acting agitated around the females, or opening his eyes wide and emitting distress vocals if asked to get into a vulnerable position (like rolling over on his back). ‘It’s extremely sad if you think about being in Tilly’s situation,’ says Jett. ‘The poor guy just has no place to run.’” Ken Balcomb had a slightly different take for Tim: “Tilikum is basically psychotic. He has been maintained in a situation where I think he is psychologically unrecoverable in terms of being a wild whale.”
* * *
John Kielty returned to Florida in the summer of 2010. He could not get Tilikum out of his mind. John began working alongside Colleen Gorman at her condo in St. Pete Beach on a number of captive-orca issues, especially the situation with Tilikum. Colleen let John move into the spare bedroom overlooking the lagoon, and they turned the living room into command central for fighting SeaWorld. They were only roommates, but they felt like soul mates when it came to Tilikum.
By July of 2010, John and Colleen began going to SeaWorld regularly. They would drive the two hours or so—much more with traffic—to Orlando and use their annual passes to get in and park for free. “We keep going and going,” Colleen told Howie Garrett, who was part of the merm group started by Colleen, “and it’s the same story, every time we see him. He’s always alone.”
