Janet Levy at Am Think,
Swimming with Dolphins Ban - Regulatory Overreach?
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.
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.\
It's a pretty big ocean, and dolphins are pretty fast. If they didn't want to be around swimmers, they would move away.
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