Swimming with Dolphins Ban – Regulatory Overreach? By Janet Levy
“The stark arbitrariness of the ban is evident from the following: a) spinner dolphins are abundant around Hawaii, and there is no evidence of a population decline; b) dolphins, as is well known, are friendly and approach humans for benign, exuberant interactions; c) the ban applies only to tourism-related businesses, while the captive dolphin industry is exempt from it; and d) military activities, which might endanger dolphins with shelling, sonar, and underwater explosions, are also exempt.”
Who decides whether you may or may not swim with dolphins? You may think this is determined by some environment-related law, made by elected representatives who constitute the legislature. But the generalities of law are often translated into the specifics of practice through rules and regulations made and enforced by officials. Not all these officials answer to the checks and balances of the democratic process. Therein lies the scope for them to further political agendas or the interests of pressure groups unsanctified by the ballot, which alone represents the will of the people of America. It is for this reason that a landmark lawsuit challenging the constitutionality of an arbitrary ban on human-dolphin interactions in Hawaii gains importance.
The ban was proposed in 2016 and finalized in October 2021 by officials of the National Marine Fisheries Service (NMFS), a federal agency under the U.S. Department of Commerce. The NMFS, supervised by the National Oceanic and Atmospheric Administration (NOAA), is “responsible for the management, conservation, and protection of living marine resources within about 200 miles of the U.S. coast.” The rule was framed by a civil servant under the Marine Mammal Protection Act of 1972. It prohibits “persons, vessels or other objects” from “swimming with, approaching, or remaining within 50 yards” of a Hawaiian spinner dolphin (Stenella longisrostris), claiming that such interactions cause habitat displacement and disturb dolphin behavior patterns, especially that of coming to shore by day to rest and nurture their young.
The stark arbitrariness of the ban is evident from the following: a) spinner dolphins are abundant around Hawaii, and there is no evidence of a population decline; b) dolphins, as is well known, are friendly and approach humans for benign, exuberant interactions; c) the ban applies only to tourism-related businesses, while the captive dolphin industry is exempt from it; and d) military activities, which might endanger dolphins with shelling, sonar, and underwater explosions, are also exempt.
The lawsuit against the ban (Eliza Willie v. Secretary of Commerce Gina Raimondo) has been brought by the Pacific Legal Foundation (PLF), a “nonprofit legal organization that defends Americans ‘ liberties when threatened by government overreach and abuse.” It is pending before the U.S. District Court, Maryland. The main signatory to the lawsuit is Ms. Willie, an experiential therapist who uses dolphin-assisted psychotherapy to help patients in long-term recovery from addictions and other ailments. The two other signatories are Shelley Perry, who owns Dolphin Discoveries, a tourism business, and Lisa Dennings, a dolphin tour guide. The ban has caused all three substantial business losses.
The crux of the lawsuit is whether bureaucrats without a legal appointment making them accountable can decide on such weighty matters. It challenges as unconstitutional the NMFS’s rule-making, which dodges accountability as required under Article II, Section 2 of the Constitution. More specifically under Clause 2.2.1.3.2, which distinguishes between constitutional officers and non-constitutional ones. Section 2 identifies heads of agencies as ‘officers’ of the government, nominated by the President with the advice and consent of the Senate. It ensures accountability by enshrining the public confirmation process. Rule-making, therefore, cannot be delegated to officials not appointed by this process of presidential selection and vetting and approval by the Senate.
This has been well-established by the Supreme Court of the United States in the Raymond Lucia v. Securities and Exchange Commission (SEC) case of 2018. Lucia, whose company offered a retirement wealth management strategy, had been charged with violations of anti-fraud regulations. An administrative law judge (ALJ) imposed sanctions and a lifetime bar on the company. Ruling in favor of Lucia, the court observed that the ALJ is not a constitutionally appointed “Officer of the United States” and ordered a new “hearing before a properly appointed official.”
Michael Poon, an attorney for the PLF, believes that similarly, the ban on approaching or interacting with dolphins is a regulation made by a bureaucrat not legally appointed to do so. He states that when regulations have devastating implications for businesses and individuals, decision-makers can be held accountable. “Under the Constitution,” he says, “issuing regulations is the job of appointed officials who answer to the democratic process, not low-level career bureaucrats.”
Dolphin watching, swimming with dolphins and related activities have been a significant part of the Hawaiian tourist industry for decades, and a thriving business for tour operators, guides, boat captains, and therapists. They have created thousands of jobs and sustained other down-the-line businesses, adding to the state’s economy while providing tourists with a unique experience. The plaintiffs contend that the ban is a threat to Hawaii’s tourism industry and deny that dolphins are harmed during these activities. Business owners say they take great care to interact with dolphins on their own terms and only when dolphins initiate contact. “When the dolphins don’t want to be with us, they don’t participate,” says Nancy Sweatt, a U.S. Coast Guard captain and owner of Dolphin Journeys, bristling at the idea of a ban. “There’s no way a human can harm a dolphin without a weapon. They can swim faster and dive deeper – up to nearly 1,000 feet – and can easily evade humans.”
What makes the ban unreasonable is the fact that spinner dolphins are under no threat. In 2019, the Marine Mammal Commission noted that the species is abundant in the insular and pelagic ecosystems of Hawaii. At the time, it estimated a minimum population of 665 for four insular groups of dolphins. Sweatt gives a more optimistic estimate, saying the population has increased markedly – from 200-300 in 1995, when she started her business, to 700-1,000 today. Even the Federal Register notes: “We recognize that there is not clear evidence of population decline or adverse biological impacts.” But it adds that a “precautionary approach is the best way to protect and conserve Hawaiian spinner dolphin populations….” The ban is evidently not based on diligent analysis of the dolphin population and long-term trends.
When the ban was proposed in 2016 and a 60-day period was set for public responses, several alternative management options were put forth. But the NMFS ignored them. For reasons best known to the officials who framed the ban, the billion-dollar dolphin captivity industry, operating under zoo rules, remains unaffected by the ban though dolphins belong in the wild, not in pools and tanks. Military activities, too, are allowed to continue unhindered in dolphin habitats.
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It will be interesting to see who prevails in this contentious case. At stake is not only the vibrant tourism industry of Hawaii, but also the power of the American people – and businesses, the mainstay of American capitalism – to hold all public decision-makers to account. Without that power, the shadow government of unelected officials exercising executive and legal powers without constitutional authority or oversight will gain in strength. Their agenda-driven coup will triumph over American citizens, American businesses, and American minds. We will end up being told what to do, how to act, what to think. No questions.
There’s an interesting sidelight to this case. Lanny Sinkin, an attorney from Hilo, Hawaii, has filed a petition for review of law on behalf of the Family of Dolphins Church, which says the ban violates its adherents’ right to religious freedom. The church claims a 20-year-old spiritual practice of interacting with dolphins.
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