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Blackfish: Is SeaWorld Breaking the Law?

By Aditi Mukherji, JD | Last updated on

"Blackfish," a documentary that premiered at the Sundance Film Festival and is now being shown on CNN, is making a big splash in the public and is landing SeaWorld in hot water.

The film traces a 39-year history of killer whales in captivity leading up to the 2010 killing of SeaWorld trainer Dawn Brancheau by the 12,000-pound orca, Tilikum, a whale previously associated with the death of two other people.

Far from the benign image of Shamu, "Blackfish" underscores the wave of legal liability under which SeaWorld is drowning.

Apart from specific animal cruelty statutes, animals have few cognizable legal rights. They are generally considered "property."

Last year, People for the Ethical Treatment of Animals (PETA) filed a lawsuit against Sea World on behalf of five orca whales -- Tilikum, Katina, Corky, Kasatka, and Ulises.

PETA claimed that Sea World violated the Thirteenth Amendment's prohibitions against slavery and involuntary servitude by capturing the plaintiffs and forcing them to live in grotesquely unnatural conditions and perform tricks.

But alas, the court concluded that the killer whales had no standing to sue because the Thirteenth Amendment only applies to "humans."

Floundering in OSHA Violations

Though killer whales aren't covered by the Thirteenth Amendment, advocates have managed to float a more viable legal argument: hurting orcas hurts humans.

As uniquely intelligent and social species in the animal kingdom, orcas thrive on familial interaction and open water. Being kept in isolation or in constant close proximity with unrelated orcas can stifle an orca's emotional and physical development and actually breed significant aggression.

That aggression, in turn, poses serious safety risks to SeaWorld's whale trainers.

This issue came to head after the gruesome death of SeaWorld trainer Dawn Brancheau. The Occupational Safety and Health Administration (OSHA) sued SeaWorld after it uncovered forty years-worth of evidence demonstrating a chilling pattern of orcas attacking -- and sometimes killing -- trainers.

A federal judge upheld OSHA's claims that SeaWorld willfully violated worker safety requirements and put their trainers in danger. He ordered a ban on direct contact between trainers and orcas.

The U.S. Court of Appeals for the D.C. Circuit is now being asked to decide if requiring barriers and minimum distances between orca and human performers is a sensible safety measure imposed by OSHA, or a crippling curtailment of Orlando-based SeaWorld's main attraction.

In the meantime, SeaWorld must deal with a new fine of $38,500 for yet another OSHA violation.

Perhaps SeaWorld should accept the prophetic power of "Free Willy"?

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