Eugene Scalia, attorney for SeaWorld Entertainment, Inc., argued before the U.S. Court of Appeals, District of Columbia Circuit, saying federal regulators overstepped by prohibiting trainers from "close contact" with the animals and the regulations severely hinders the company's business practices.
"It's as if the federal government came in and told the NFL that 'close contact' on the football field would have to end" because playing football causes more injuries than SeaWorld's killer whale training, said Scalia, the son of Supreme Court Justice Antonin Scalia.
Chief Judge Merrick Garland pushed back against Scalia's football analogy, comparing the federal government's regulations with the requirement for professional ballplayers to wear helmets.
SeaWorld is appealing an order from the Occupational Safety Health Administration establishing a minimum distance between the trainers and the whales on the heels of the death of trainer Dawn Brancheau at SeaWorld Orlando in 2010.
SeaWorld has argued it has implemented safety measures, including emergency lift floors that could quickly pull a trainer and whale out of the water, that the company believes go far enough to protect the trainers' safety.
But animal behavior experts contend the stresses of captivity make the whales unpredictable, allegations that came to prominence with the documentary Blackfish that played in theaters and aired on CNN.
"I feel very strongly that the trainers are being misled about the dangers these animals pose," said Naomi Rose, an anti-captivity activist who works for the Animal Welfare Institute.
"The predatory instincts are there, but [the killer whales] are very differently behaved," she said. "Their unpredictability, in fact, is higher because they are frustrated, because they are confined, because they are suffering."