![\"Orcas\"](\"http:\/\/www.jlpp.org\/old_blog\/wp-content\/uploads\/2013\/11\/Orcas.jpg\")
<\/a>Earlier this week, CNN aired a documentary entitled <\/a>Earlier this week, CNN aired a documentary entitled Blackfish<\/i><\/a>, which seemingly traces the history of captive orca whales\u2014commonly known as killer whales. Although the documentary raised some interesting points about whether holding orca whales in captivity is cruel, the documentary was really nothing more than a criticism of SeaWorld. The documentary culminated around the death of Dawn Brancheau, an experienced SeaWorld whale trainer, by SeaWorld\u2019s largest orca whale, Tilikum<\/a>, in order to promote a one-sided spin<\/a> that SeaWorld trainers should neither be allowed to interact with orca whales, nor should orca whales be kept in zoological settings. This article aims to address some of the public policy issues surrounding trainer interaction with orca whales and the maintenance of orca whales in zoological settings.\n\nMany people see SeaWorld as a theme park whose main mission is entertainment, however, this perspective is misguided. First and foremost, SeaWorld is the world\u2019s most respected<\/a> zoological institution and the global leader<\/a> in \u201c marine mammal veterinary care, husbandry, training, and welfare.\u201d SeaWorld\u2019s mission<\/a> is to \u201c inspire guests through education and up-close experiences to care for, and protect, marine mammals.\u201d SeaWorld\u2019s scientific research and conservation efforts are predominantly accomplished through maintaining orca whales in zoological settings and physical trainer interaction with the whales.\n\nNevertheless, after the tragic death of Dawn Brancheau in 2010, the Occupational Safety and Health Review Commission (OSHRC) claimed that trainers\u2019 interaction with orca whales presented a \u201crecognized hazard\u201d that breached the OSH Act\u2019s general duty clause<\/a> to \u201cfurnish . . . employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to . . . employees.\u201d However, the workplace need not be entirely<\/i> risk free<\/a>; the risk must only be feasibly reduced<\/a>. OSHRC never denied that SeaWorld complied with all relevant industry guidelines<\/a> and requirements for the care and display of orca whales.\n\nIn fact, SeaWorld used a scientifically proven method\u2014operant conditioning\u2014 for years to reinforce the orca whales\u2019 positive behavior and minimize the whales\u2019 undesired behavior. This type of conditioning renders whales\u2019 behavior extremely predictable<\/a>, allowing trainers to maintain close contact. Additionally, SeaWorld has whale-specific protocols<\/a>, and requires daily behavior records of each whale, allowing trainers to detect any type of abnormal behavior. SeaWorld has extensive emergency procedures for unexpected whale behaviors, and each SeaWorld trainer must have a minimum of three years experience<\/a> before he or she may direct a whale\u2019s behavior and four years experience<\/a> in an apprenticeship program before getting in the water with orca whales.\n\nNotwithstanding SeaWorld\u2019s best efforts, a judge ruled in favor of OSHRC<\/a> disallowing SeaWorld trainers to come into contact with the whales during a performance show without being protected by a physical barrier, but still allowing trainer contact for purposes of husbandry and veterinary care. In essence, trainers\u2019 interaction with orca whales for the purposes of performing a show was a recognized hazard.<\/a> The judge\u2019s line of reasoning could extend to consider almost any professional entertainment or-sport a recognized hazard, including professional football, boxing, or even NASCAR racing. Naturally, it is understood that serious injury may result from contact sports<\/a> or high-speed car races. Should we ban these types of activities as well? No. There is almost always risk inherent with any activity, such as driving a car<\/a> or even owning a pet<\/a>. This ruling should not stand.\n\nOver the course of SeaWorld\u2019s 50-year existence, there have been millions of trainer-whale interactions with only approximately a dozen interactions<\/a> resulting in some type of injury, and (only one of which resulted in death). This means that the likelihood of injury relating during a trainer-whale interaction is roughly .0012%. There should remain the principal of assumption-of-risk and a balancing of the risks and utilities associated with the activity. The residual risk of interacting with an orca whale is open and obvious to those who become whale trainers. If the trainer consciously chooses to work with the whales in light of that risk, they are assuming the risk. Trainers are making an autonomous decision that the risk of serious injury is outweighed by the utility of interacting with the whale. That decision should not have been taken away when SeaWorld took all reasonable measures to reduce<\/a> the risk of injury as much as was practicable.\n\nFurthermore, there is quite a bit of social utility in allowing this type of trainer-whale interaction. It offers the public the opportunity to observe this type of interaction that would otherwise be unfeasible. It provides an educational experience for the public to better understand orca whales and SeaWorld\u2019s care of them. Viewing this type of interaction also satisfies the general human desire to know<\/a>, and interact with, the natural world. Guests have repeatedly written that watching trainers\u2019 touch and direct whales\u2019 behavior has inspired and \u201cchanged them.\u201d<\/a> Additionally, SeaWorld argues that trainer-whale interaction in the context of training for and performing shows, is necessary for the health and well being of the whales. Trainers are better able<\/a> to interpret and anticipate whales\u2019 behavior and are the only people from whom the whales will take direction. Orcas cannot be anesthetized<\/a>, so SeaWorld veterinarians largely depend on trainers to alert them to any signs of illness or injury. Allowing trainers to interact with the whales increases the predictability o<\/a>f whale behavior, helping to alleviate any unforeseeable behavior when the whales are receiving veterinary care.\n\nThe death of Dawn Brancheau was truly a tragedy; however, public policy demands that hindsight bias is should be avoided at all costs. Given the extremely low chance of injury occurring during trainer-whale interactions and the high social and educational utility in allowing this type of interaction, it is in the best interests of the public to allow the continuation of trainer-whale interactions at SeaWorld.","protected":false},"excerpt":{"rendered":"Mahalia Burford argues that SeaWorld Trainers should not be barred from performing with orca whales.<\/p>\n","protected":false},"author":1,"featured_media":1313,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[28],"tags":[215,917,1138,1141,1359,1549,1674],"class_list":["post-1311","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-student-blogs","tag-blackfish","tag-killer-whales","tag-orcas","tag-osha","tag-seaworld","tag-trainer","tag-whale"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1311","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=1311"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1311\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/1313"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=1311"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=1311"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=1311"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}