A businesswoman in Hawaii is suing the Biden administration for hurting her business by banning swimming with spinner dolphins, a popular tourist and therapeutic activity that generates a living for many residents of the 50th U.S. state.
The legal problem is that the low-level federal bureaucrat in the National Marine Fisheries Service (NMFS) who issued the new regulation had no authority under the U.S. Constitution to make the rule, according to the Sacramento-based Pacific Legal Foundation (PLF), a nonprofit national public interest law firm that’s representing the plaintiffs.
PLF attorney Michael Poon said the authority to issue regulations under the Marine Mammal Protection Act is vested in the U.S. commerce secretary. However, in September 2021, NMFS Deputy Assistant Administrator for Regulatory Programs Samuel Rauch, who wasn’t confirmed by the U.S. Senate, is purported to have issued the regulation under the Marine Mammal Protection Act.
“But Mr. Rauch is a career civil servant,” Poon told The Epoch Times. “He’s an employee. He is not a political appointee.”
This makes Rauch “accountable to no one,” according to the PLF attorney. Rauch is “certainly not appointed as an officer of the United States, even though he has rulemaking power.”
“People in the executive branch who wield significant federal power, are officers, and officers have to be fireable by the president so that they remain accountable to him, and he [the president] remains accountable to the American people,” Poon said.
Rauch’s employer, the NMFS, is an agency within NOAA, which itself is an agency within the U.S. Department of Commerce.
Congress never gave this rulemaking power to Rauch, according to Poon. Congress gave the power under the act to the secretary of commerce, who’s “someone way, way higher up.”
A previous secretary of commerce “delegated this rulemaking power to the NOAA administrator ... [who] delegated it to the head of the National Marine Fisheries Service, who was called the Assistant Administrator for Fisheries, and the head of the National Marine Fisheries Service delegated that power to Mr. Rauch,” according to Poon.
Rauch’s regulation prevents humans, vessels, and objects from swimming with or coming within 50 yards of the dolphins. Rauch had decided that the dolphin encounters constituted harassment under the Marine Mammal Protection Act because they could alter the dolphins’ “natural” behavior.
The PLF stated that the rule “will destroy an entire industry without regard for the value individuals receive from interacting with the playful animals,“ and that the rule ”even forces people who are approached by dolphins to swim away and ignore the animals’ natural curiosity.”
Swimming with spinner dolphins is central to the livelihoods of many Hawaiians, significantly contributes to the state’s economy, and enriches the lives of individuals worldwide, according to the foundation.
The plaintiffs are Eliza Wille, Shelley Carey, and Lisa Denning, all of whom reside in Hawaii and participate in commercial or professional activities directed toward Hawaiian spinner dolphins.
Wille is a psychotherapist with a master’s degree in psychology from the London School of Economics and a bachelor’s degree in psychology from the University of Hawaii. Her career has included eight years of cognition research on dolphins.
Recently, she conducted her psychotherapy practice at Hawaii Island Recovery, a residential treatment center that deals with substance abuse, addiction, and related mental disorders, according to the legal complaint.
Wille began employing dolphin encounters in her experiential therapy practice 10 years ago, “creating turning points for many patients’ mental health journeys.”
Such encounters can help to bring to the surface anxiety and feelings of being overwhelmed and losing control, which she can then help patients process and overcome, according to the complaint.
Wille engages with the dolphins “respectfully,” according to the PLF.
“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 foundation stated.
The Epoch Times reached out to NMFS, which is also known informally as NOAA Fisheries, for comment.
“We cannot comment on matters of ongoing litigation,” NOAA Fisheries Public Affairs Director Lauren Gaches replied by email.
