Lawsuit challenges rule banning swimming with dolphins in Hawaii

A ban by the National Oceanic and Atmospheric Administration (NOAA) prohibiting people from swimming with spinner dolphins in Hawaii is being challenged in court.

The rule is unconstitutional, according to the Pacific Legal Foundation, a national nonprofit that defends Americans threatened by government overreach and abuse that filed the lawsuit on behalf of several plaintiffs. It accused the NOAA of overstepping its bounds and allowing a civil servant not appointed by the president or confirmed by the Senate to instill a rule not within their legal authority.

NOAA Fisheries finalized the rule in September. It banned people from swimming with, approaching or remaining within 50 yards of spinner dolphins. It applies to any person or object, including boats, canoes, paddleboards and drones.

The regulation was meant to protect Hawaiian spinner dolphins against disturbance and intense viewing pressures from commercial and recreational wildlife viewers, NOAA wrote on its website.

The Pacific Legal Foundation said the ban was an unlawful move by a low-level federal bureaucrat who destroyed a business avenue central to the livelihoods of many Hawaiians. Dolphin guide Lisa Denning lost 90% of her business after the ban, according to the group. Another business owner, Shelly Carey, who is a boat captain and runs Dolphin Discoveries, saw a dramatic drop in revenue.

Small business owners and mental health professionals in Hawaii filed the lawsuit Wednesday, pushing back against what they called a Hawaii-specific regulation. Pacific Legal Foundation, who is representing the group at no charge, said professionals who depended on the industry are now struggling.

One of the plaintiffs, Eliza Wille, works as a therapist and said she no longer can conduct an important part of her practice, which included swimming with dolphins.

“This powerful form of experiential therapy draws out emotions in patients who have difficulties in traditional talk-therapy settings,” Pacific Legal Foundation wrote. “The ban completely shuts down this mode of therapy, without regard for the value individuals receive from interacting with the playful animals, despite the lack of harm to Hawaii’s spinner dolphin population. The prohibition of dolphin interactions also threatens the tourism industry that relies heavily on respectful interactions with wildlife.”

“Especially when regulations have devastating implications for businesses and individuals, it is crucial that decision-makers can be held accountable,” said Michael Poon, an attorney with Pacific Legal Foundation. “Under the Constitution, issuing regulations is the job of appointed officials who answer to the democratic process, not low-level career bureaucrats.”

A representative for NOAA said it was unable to comment on matters of ongoing litigation.