04/09/2013 03:37 pm ET Updated Jun 08, 2013

SeaWorld Suffers Legal Setback in Fight Against OSHA

Even as SeaWorld and OSHA engage in settlement talks over the 2010 death of orca trainer Dawn Brancheau, the company has suffered a legal setback in its fight to keep OSHA inspectors from interviewing trainers about federally mandated safety measures before the mediation process concludes.

U.S. District Judge Roy Dalton has ruled that OSHA inspectors can enforce subpoenas to interview trainers, in order to ensure that safety measures the federal agency imposed after Brancheau's death are being enforced. Dalton's ruling was first reported Monday afternoon by Courthouse News Service.

Those measures, which OSHA agreed to mediate with SeaWorld, in a surprising turnaround, include a ban on trainers getting near killer whales during shows without a minimal distance or protective barrier.
I wrote about those measures, and the negotiations last week at

Despite the settlement talks, OSHA inspectors have been trying to interview three trainers about the company's enforcement of the safety measures handed down by the agency and upheld last year by a federal judge.

Presumably, the inspectors want to ask the trainers if they have engaged in onstage behavior - including hugging, kissing and otherwise touching killer whales - in direct violation of OSHA's safety mandates.

SeaWorld fought OSHA's efforts. "OSHA issued administrative subpoenas to three SeaWorld employees, Tony Moore, Craig Thomas, and Brian McFadden," Court News reported. "SeaWorld and the employees insisted, however, that they would not give testimony pertaining to the abatement date modification petition."

But now Judge Dalton has ordered the company to comply.

It should make for interesting interviews - countless photos, YouTube videos and at least one Orlando TV newscast all show trainers in intimately close poses with the orcas, well after OSHA's measures became an official order.

"OSHA may reinspect the premises - and issue administrative subpoenas as part of the reinspection process - to ensure abatement," Dalton wrote. "As such, respondents' (SeaWorld's) objections are not well-taken."

Enforcement of the subpoenas will not infringe on the outcome of the mediation process, where the ultimate decision "may moot OSHA's follow-up inspection," the judge wrote. "Nevertheless, Sea World currently has a duty to abate in accordance with the original abatement deadline, and OSHA may act to enforce the required abatement."

The move comes as SeaWorld is trying to put its best face forward ahead of an IPO that is expected later this month. Just today, SeaWorld and parent company The Blackstone Group increased the offering from $100 million to $500 million.

For now, the clock is ticking. If OSHA inspectors interview the trainers, under oath, and find that they have performed in extremely close proximity to the whales, as expected, then it could head off any negotiations toward a settlement.

On the other hand, as the judge pointed out, if mediation is finalized first, it could well "moot OSHA's follow up inspection."

David Kirby is author of the book "Death at SeaWorld," (St, Martin's Press 2012)