The incredible recreational offerings of Hawaii not only are world famous, but they also represent a significant portion of the state’s economy. One activity that’s become popular over the past several decades is dolphin-watching tours and swimming with dolphins—specifically spinner dolphins. These social, acrobatic mammals have fostered valuable experiences for tourists and residents and have given rise to a thriving industry for boat captains, dolphin guides, and even therapists.
With the stroke of a pen, however, a low-level federal bureaucrat in the National Marine Fisheries Service (NMFS) issued a new rule that bans these dolphin encounters in Hawaii. This federal agency, which is located thousands of miles from Hawaii, has banned a business that is central to the livelihoods of many Hawaiians, significantly contributes to the Aloha State’s economy, and enriches the lives of individuals worldwide.
It turns out that the civil servant who issued the rule was never authorized to wield such vast power. The dolphin rule, therefore, is unlawful, and Hawaii business owners and professionals are fighting back.
Swimming with dolphins is among the most powerful tools in Eliza Wille’s psychotherapy practice in Kona. This type of treatment is a kind of experiential therapy, a mode of therapy that uses activities such as art, nature, or animals to draw out emotions in patients who have difficulties in traditional talk-therapy settings. The effectiveness of dolphin encounters has created turning points for many patients’ mental health journeys since Eliza incorporated dolphins into her practice 10 years ago.
Like other businesses that engage with these dolphins, Eliza does so respectfully. She and her patients approach the dolphins on the animals’ terms—in the morning when the dolphins are most active and near the shore, and the dolphins initiate contact, not the other way around.
The great care taken by those who value their dolphin interactions or who rely on dolphins for their livelihoods didn’t matter to the National Marine Fisheries Service. Nor did the fact there have been no reported declines of, or confirmed harms to, Hawaii’s spinner dolphin population stemming from these careful interactions.
The agency nevertheless decided that these harmless encounters constituted harassment under the Marine Mammal Protection Act, because they could change the dolphins’ “natural” behavior.
So, in September 2021, the Swim With and Approach Regulation for Hawaiian Spinner Dolphins Under the Marine Mammal Protection Act was signed in the Federal Register by the NMFS Deputy Assistant Administrator for Regulatory Programs, Samuel Rauch.
The Hawaii-specific regulation is powerful. It prohibits people, vessels, and objects from swimming with, or coming within 50 yards of, the dolphins. This regulation will destroy an entire industry without regard for the value individuals receive from interacting with the playful animals. It even forces people who are approached by dolphins to swim away and ignore the animals’ natural curiosity.
The rule is also unconstitutional. The Constitution’s Appointments Clause reserves the power to issue regulations to principal “Officers of the United States”—that is, to officials who are appointed by the president and confirmed by the Senate. In this way, the Appointment’s Clause ensures that those who make rules that bind the public are accountable to the public. The dolphin rule’s author does not meet this constitutional requirement. Yet Rauch has managed all the regulations for the NMFS since 2006, when he started as deputy assistant administrator for Regulatory Programs.
This unlawful rule has had a crushing effect on many professionals, like Eliza Wille. Dolphin guide Lisa Denning has lost 90% of her business. For Shelly Carey, a boat captain and owner of Dolphin Discoveries, revenues dropped dramatically after the rule was passed, and, as a result, his employees who are paid per-trip saw their incomes decrease.
Represented at no charge by Pacific Legal Foundation, these professionals and small business owners are challenging the government’s illegal rulemaking in federal court to defend their livelihoods, a productive industry, and the valuable experiences they provide to so many people.