As litigation over the validity of a rule banning swimming with Hawaiian spinner dolphins continues, NOAA Administrator Richard Spinrad recently ratified the final rule issued by the National Marine Fisheries Service last fall.
The July 8 action, published in the July 14 Federal Register, ratifies the final rule issued by the National Marine Fisheries Service on Sept. 28, 2021, restricting swimming with or approaching Hawaiian spinner dolphins (Stenella longirostris) within 50 yards effective Oct. 28, 2021.
The ratification, according to the Federal Register, was undertaken “out of an abundance of caution” and reaffirms the prior final rule approved by Assistant Administrator for NOAA Fisheries Janet Coit, and signed by the Deputy Assistant Administrator for NOAA Fisheries Samuel Rauch.
“Out of an abundance of caution, and to remove any doubt as to its validity, I have independently evaluated the Approach Rule and the basis for adopting it, and I now affirm and ratify the Approach Rule without deference to Assistant Administrator Coit’s prior decision,” Spinrad wrote in the ratification. “I state that I have knowledge of the contents, purpose, and requirements of the Approach Rule and its rulemaking record. I undertake this action based on my careful review of the Approach Rule, my knowledge of its provisions, and my independent judgment that the Approach Rule was and remains necessary to protect Hawaiian spinner dolphins, a protected species under the MMPA, from illegal “take” by people wishing to closely swim with or approach the species. …”
However, he stated that his ratification of the final rule does not prejudice any right to litigate the validity of the approach rule.
Litigation filed in March in U.S. District Court in Maryland by the Pacific Legal Foundation on behalf of Hawaii plaintiffs Eliza Willie, Lisa Denning and Shelley Carey questioned the authority of Coit and Rauch to issue the final rule.
A response to the complaint filed by the Pacific Legal Foundation is due in federal court by Friday. As of press-time Tuesday, the National Marine Fisheries Service, and co-defendants Spinrad and Coit had yet to file responses.
The lawsuit states the rule is unconstitutional because it was finalized by an agency civil servant who did not have the authority to make the rule, because the person was not appointed by the president and confirmed by the Senate.
According to the foundation, for professionals like Wille, a therapist in Kona, swimming with dolphins is an important part of her practice. The ban, the foundation contends, completely shuts down the mode of therapy without regard for the value individuals receive, despite the lack of harm to the dolphin population. It also threatens the tourism industry.
“Especially when regulations have devastating implications for businesses and individuals, it is crucial that decision-makers can be held accountable,” said Pacific Legal Foundation attorney Michael Poon. “Under the Constitution, issuing regulations is the job of appointed officials who answer to the democratic process, not low-level career bureaucrats.”
The National Marine Fisheries Service in publishing the final rule banning the popular practice in Hawaiian waters said the regulation under the Marine Mammal Protection Act is necessary to protect the nocturnal animals from those seeking encounters with the playful species.
Swimming with Hawaiian spinner dolphins was a popular activity among tourists and residents in Hawaii that generates millions annually. Hawaii’s wild dolphin tourism industry in 2013 generated an estimated $102 million on Hawaii Island and Oahu with dolphin viewing generating $58.6 million and swimming $39.2 million, according to a study by researchers with the University of Hawaii at Manoa, Duke University and York University published in August 2020. Dolphin tourism off Kailua-Kona accounted for approximately $44.1 million, of the total annual revenue with about $13.5 million coming from dolphin swims.
Meanwhile, federal officials continue to work on a proposed federal rule to establish time-area closures in parts of Kealakekua Bay, Honaunau Bay, Kauhako Bay (Ho‘okena), and Makako Bay on the Big Island, and La Perouse Bay on Maui to protect Hawaiiian spinner dolphins. Public hearings were held in December 2021.
