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Killer whale proximity to trainer key to shows, SeaWorld tells court

By Lacey Johnson

WASHINGTON (Reuters) - Putting killer whales and their trainers together in close proximity is an important part of SeaWorld's shows, the marine park operator said on Tuesday in asking a federal court to overturn an order to put more space between orcas and humans.

The case resulted from the February 2010 death of Dawn Brancheau, a 40-year-old marine life trainer at SeaWorld Entertainment Inc's Orlando park, and a U.S. Labor Department safety order that came after that tragedy.

Brancheau drowned when a 12,000-pound (5,440-kg) bull killer whale, or orca, named Tilikum pulled her into a pool.

Close interaction between whales and humans is "the premise of SeaWorld's entertainment," the company's attorney, Eugene Scalia, told a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit.

The Labor Department order is like the "government came in and told the NFL (National Football League) that close contact on the football field would have to end" for safety reasons, said Scalia, son of Supreme Court Justice Antonin Scalia.

Six months after Brancheau's death, the Occupational Safety and Health Administration (OSHA) said SeaWorld had exposed its trainers to a hazardous environment, violating the Occupational Safety and Health Act's "general duty" clause.

OSHA, part of the Labor Department, ordered SeaWorld to make changes, including physically separating trainers and orcas during performances.

OSHA also fined SeaWorld $75,000 for three safety violations. An administrative law judge of the Occupational Safety and Health Review Commission reduced the fine last year to $12,000 after downgrading one of the violations.

GENERAL DUTY CLAUSE

The "general duty" clause says employers must keep workplaces free from recognized hazards. The clause "cannot be used to force a company to change the very product that it offers the public, and the business it is in," SeaWorld wrote in an appellate brief.

The Labor Department defended its invoking of the clause, saying the safety hazards at SeaWorld could be prevented without threatening the company's survival.

"The distinction is that the acts that SeaWorld claims are inherent to their business model are, in fact, not inherent to their business model," said Department of Labor attorney Amy Tryon during the hearing at Georgetown University's Law Center.

"We know that SeaWorld is able to make a reduction in risk to its employees because SeaWorld has done that."

DEEP WATER LIMIT

Scalia said that SeaWorld had modified its shows following Brancheau's death, and trainers were no longer allowed to enter deep water with killer whales.

"What is the nature of the product?" asked Judge Brett Kavanaugh during Tryon's remarks. "That's the concern I have about this case."

Scalia said the ruling against SeaWorld should be dismissed because a previous judge relied on testimony from an unqualified expert witness with limited knowledge of whale behavior in captivity.

The appellate judges have yet to rule.

Two animal-rights groups - People for the Ethical Treatment of Animals and the Animal Legal Defense Fund - have filed with an amicus brief to support the Labor Department. The groups wrote in the brief that prolonged captivity has forced the orcas to behave aggressively.

Shares in SeaWorld were up 2.4 percent at $31.96 in mid-afternoon trading.

The case is SeaWorld of Florida v. Thomas E. Perez, No. 12-1375, U.S. Court of Appeals for the District of Columbia Circuit.

(Editing by Ian Simpson, Kevin Drawbaugh and Andrew Hay)

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