By Ken Stone
In 2014, President Trump’s pick to replace Justice Anthony Kennedy sided with the Orlando-based theme park company in the case of a $70,000 OSHA fine involving the 2010 death of SeaWorld trainer Dawn Brancheau by the killer whale Tilikum.
Kavanaugh dissented in a 2-1 decision that upheld the fine. (The majority were D.C. Court of Appeals Judges Merrick Garland — President Obama’s doomed pick for the high court — and Judith Rogers.)
In her majority opinion, Rogers didn’t accept SeaWorld’s argument of a precedent in a San Diego case. Cal-OSHA hadn’t issued a citation for killer whale hazards after Kasatka bit and dragged a trainer underwater.
The trainer, Ken Peters, suffered a fractured left foot in that 2006 incident at SeaWorld San Diego.“In any event, the state inspection report included a warning on point,” Rogers said. “Although noting that SeaWorld had been following industry standards and was a recognized leader in training killer whales for performance, and that its employees were well-trained and followed emergency procedures, Cal/OSHA concluded that SeaWorld of San Diego’s procedures ‘were not entirely effective at stopping the unwanted behaviors of the killer whale during this attack’ and that ‘[s]hort of eliminating all of the water interactions with the killer whales, there is no guarantee that employees can be kept safe from an attack by the killer whale once they get in the water with the animal.’”
In his 2,900-word dissent, Kavanaugh likened orca trainers to sports and entertainment figures involved in “extremely dangerous” events, including football, ice hockey and downhill skiing.
He noted that such sports didn’t come under federal health and safety rules — and that trainers, such as athletes, willingly take risks.
“Participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury,” Kavanaugh wrote. “To be fearless, courageous, tough — to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk — is among the greatest forms of personal achievement for many who take part in these activities.”
Kavanaugh also cited “bull riding at the rodeo. … Daredevil motorcycle jumps. … Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. … (And) movie stunts” as activities not subject to OSHA regulations.
He wrote that the Department of Labor’s “unprecedented assertion of authority to proscribe SeaWorld’s whale show is triply flawed.” For one, he slammed the agency’s argument that close contact between trainers and whales is different from “contact between players in the NFL or speeding in NASCAR races.”
But in a June 2014 article in Occupational Health & Safety magazine, editor Jerry Laws wrote: “There’s no question in my mind that the decision is correct.”
He called Kavanaugh’s dissent “simply absurd.”
Laws said the dissent warned that the SeaWorld case opened the door for Department of Labor regulation of the NFL, NHL and the like.
But Laws quoted Rogers’ majority opinion: “No one has described SeaWorld’s killer whale performance as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can be raised when and if OSHA attempts to do so. Until then, this court will not find that OSHA acted arbitrarily based on a few responses to hypotheticals in briefing or oral argument.”
On Tuesday, a blog post by Jordan Barab, the Obama-era deputy assistant secretary of labor at OSHA, quoted former OSHA Assistant Secretary David Michaels.
“In his dissent in the SeaWorld decision,” Michaels said, “Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job. He clearly has little regard for workers who face deadly hazards at the workplace.”
According to a spokesman for People for the Ethical Treatment of Animals, or PETA, the SeaWorld case involving the OSHA fine cannot be appealed.
“And we know of no pending cases at the Supreme Court that involve SeaWorld,” the spokesman, David Perle, said Tuesday. And none of the 10 pending SeaWorld cases in federal courts is likely to rise to the Supreme Court.
SeaWorld did not immediately respond to a request for comment.
Besides Garland and Kavanaugh being involved in that appellate case, another Supreme Court connection was an attorney arguing on behalf of SeaWorld.
“SeaWorld was represented by attorney Eugene Scalia, the son of late Supreme Court Justice Antonin Scalia,” noted an Orlando TV news report.
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