Eugene Scalia, son of infamously sharp-tongued Supreme Court Justice Antonin Scalia, was recently hired by Sea World for their next round of appeals against the Occupational Safety and Health Administration (“OSHA”). After the “willful” violation that OSHA cited them for in 2010, Sea World appealed, first to an administrative law court, and then to a Labor Department commission, finally to the US Court of Appeals for the District of Columbia Circuit, which ordered the company to enter mediation with OSHA to establish a guideline for interactions between killer whales and trainers. This latest appeal will again be heard before the U.S Court of Appeals for the D.C. Circuit.
The young Scalia, who will be representing Sea World in this appeal, seems to have inherited his father’s top-notch legal mind. Prior to his current position as a partner at a high-powered law firm, he worked in the Labor Department under George W. Bush. He has additionally been on the receiving end of several honors, including “Lawyer of the Year and Top Lawyer, Washington D.C.” Furthermore, he has been recognized as one of the 500 leading lawyers in the country according to “Lawdragon” and is one of the top 50 litigators under the age of 45. The point is however you look at it he is a talented attorney, who is sure to keep the OSHA attorneys on their toes.
Yet, my first reaction when I saw the news is to think that Sea World is scared that they are going to lose. Because of the wide range of administrative matters that the D.C Federal Courts have jurisdiction over, The United States Court of Appeals for the D.C. Circuit is often recognized as the second most powerful court in the country, beneath only the U.S. Supreme Court. To have them rule against Sea World now would be a major blow for the company, and potentially the next step towards ending their practice of captivity.
In addition to the 2010 citation at issue, Sea World was again cited last month by OSHA for a repeat violation. The citation was for $38,500, the maximum that the law allows. Unfortunately, the legal limit on the size of these fines means that they will never amount to a serious financial pressure on the company. So if the fines aren’t going to break Sea World’s bank, why are they so concerned about fighting them? If the punishment is nothing more than a slap on a wrist than why would Sea World feel the need to bring in such a top lawyer? One reason might be the fear they feel of having such a powerful court tell them what so many of us already know, which is that in a society of law and order, there is no place for Sea World’s methods. Recognition from the court that trainers cannot be in the water with whales without physical barriers would just be a reinforcement of the fact that captivity kills.
Scalia’s briefing before the appeals court argues, “Interacting with nature is not without risk—not when mountain climbing or kayaking, not when sailing or swimming in the ocean, not when visiting our national parks. On rare occasions, killer whales can be dangerous. SeaWorld has taken extraordinary measures to control that risk. But it cannot eliminate it while facilitating the interaction between humans and whales that is integral to its mission.” However, I would like to see Sea World’s hot-shot attorney explain how an individual taken in youth, forced to live in an unnatural setting, feed in a unnatural way, forced to reproduce in a most unnatural way and do unnatural tricks, is “interaction with nature.” If on rare occasions killer whales can be dangerous, than why are there no reported intentional attacks on humans in the wild?
The truth is interacting with ‘occasionally dangerous killer whales’ is not essential to Sea World’s mission. On the contrary, Sea World’s mission is why these individuals are dangerous. The occasionally dangerous nature of captive whales, which is as unnatural as the rest of their life, rather than being an argument for overturning OSHA’s citations, is an argument for emptying the tanks once and for all.