Federal officials have asked a judge to dismiss a lawsuit contesting the validity of a rule banning swimming with Hawaiian spinner dolphins.
The motion to dismiss for lack of jurisdiction and failure to state a claim was filed on behalf of NOAA Administrator Richard Spinrad, Assistant Administrator for NOAA Fisheries Janet Coit, and Secretary of Commerce Gina Raimondo was filed Friday in U.S. District Court in Maryland.
The filing comes in the wake of Spinrad ratifying early this month 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 reaffirmed the prior final rule approved by Coit, and signed by the Deputy Assistant Administrator for NOAA Fisheries Samuel Rauch.
“Plaintiffs’ challenge to a 2021 regulation fails to state a plausible claim for relief because Defendants have cured the alleged procedural defects through a formal ratification of the rule. With all of the disputed issues regarding this regulation resolved, Plaintiffs’ claims in this case should be dismissed,” the motion reads.
The lawsuit was filed in March by the Pacific Legal Foundation on behalf of Hawaii plaintiffs Eliza Willie, Lisa Denning and Shelley Carey questioning the authority of Coit and Rauch to issue the final rule.
The plaintiffs argued 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.
The Marine Mammal Protection Act rule prohibits swimming with or getting within 50 yards (45.7 meters) of a spinner dolphin that is within 2 nautical miles of the shore of the main Hawaiian Islands. The rule applies to persons, boats, canoes, stand-up paddleboards, drones or other objects. That means being within 1/2 of a football field of the mammal, by any means, including swimming or intercepting by boat the mammal’s path, is illegal — statewide.
In other spinner dolphin-related news, 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.