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from the desk of dan ashe

AZA’s Advocacy Efforts Extend to the Courtroom

By Dan Ashe
min read

Congratulations to Landry’s Houston Aquarium in Houston, Texas, on its nine-year, hard-fought court victory on 15 July, in a case against the Occupational Safety and Health Administration (OSHA). OSHA had sought to subject Houston Aquarium and all aquarium feeding and cleaning dives to the same commercial diving requirements for such things like ocean diving for oil rig or pipeline construction.

The Association of Zoos and Aquariums supported Landry’s with amicus briefs before OSHA and before the United States Court of Appeals for the Fifth Circuit. That three-judge court unanimously ruled in favor of Landry’s. In so ruling, the Court’s reasoning mirrored exactly the arguments of the AZA briefs.

The legal saga began nine years ago when a disgruntled employee complained to OSHA. On 10 July 2012, OSHA issued a citation for failure of Landry’s aquarium divers to comply with the deep-sea commercial diving regulations. Landry’s invoked the scientific diving regulatory exemption because its aquarium dives involved scientific and educational tasks of preserving fish species in the artificial environment of the tank.

An administrative law judge ruled in favor of OSHA that tank diving by scientists for feeding and cleaning required the special equipment and procedures for deep sea diving expeditions. Landry’s appealed to the Occupational Health and Safety Review Commission. AZA, in support of Landry’s appeal and on behalf of all AZA aquarium members filed a first amicus brief.

After years of delay, a 2-1 Review Commission ruled against Landry’s. The dissent by the Commission’s chairman was a comprehensive review of the diving regulations, arguing that the OSHA commercial diving regulation was never intended to apply to aquariums and concluding that the scientific diving exemption applied to aquariums.

Landry’s appealed to the United States Court of Appeals for the Fifth Circuit. AZA filed a second amicus brief. Oral argument was held the first week in March. The decision on 15 July was unanimous and a complete victory for Landry’s. It is an important precedent for all AZA member aquariums and indeed all United States aquariums.

Highlight

The court unanimously reversed OSHA, and found that the feeding and cleaning dives were not “commercial diving,” but rather “scientific diving” within the meaning of the OSHA regulations.  The court reasoned that OSHA had used an overly narrow definition of “research” for determining what is “scientific diving” and thus failed to account for the language of the regulation as a whole. The court noted that the divers were trained scientists whose mission was to preserve the delicate balance of the artificial aquatic environment in the tank. Their observations were “research,” a term that does not require writing or publication beyond the Facility Dive Log and informal reports of abnormalities. The court also noted that the regulations distinguished between the tasks of a scientific diver, as an observer and data gatherer, and a commercial diver, who may be involved in construction, demolition, and the manipulation of heavy objects. The trained scientists diving in an aquarium fall in the first category. The court also noted that the alleged OSHA violations did not have any safety benefitsthe additional pieces of equipment specified by OSHA in the charges of the citation, such as a two-way radio, a reserve air supply, and a safety harness, were not needed in the controlled environment of the aquarium tanks and could make such diving less safe.

I ran a federal agency. I know how daunting and difficult it is to take them on in the federal courts. The U.S. Justice Department defends them with an army of very talented attorneys. All the more reason for us all to raise a glass and toast our colleagues at Landry’s for their tenacity and commitment.

All of us at AZA join in saluting you, and we are delighted that we could lend a helping hand.

Dan Ashe is the president and CEO of the Association of Zoos and Aquariums.

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