On Monday, three business owners in Hawaii filed a complaint in the District of Maryland against Secretary of Commerce Gina Raimondo, the National Marine Fisheries Service (NMFS), and other government officials for the enacting of a rule that prohibits humans from approaching spinner dolphins, which has allegedly harmed the plaintiffs’ livelihoods. Furthermore, they claimed that the official who adopted this rule was appointed unconstitutionally.
One of Hawaii’s “most popular” attractions are interacting with spinner dolphins, who are said to seek out humans to interact with them near the shore. Furthermore, these dolphins have been a “key part in some psychotherapy practices, which have found that dolphin-based experiential therapy can have a profound impact on those struggling with mental illness.”
However, the Deputy Assistant Administrator for Regulatory Programs (DAARP) of the NMFS adopted a rule that permanently banned approaching these dolphins. The agency concluded that “allowing people and dolphins to swim with each other may lead dolphins to expend energy that they really ought to spend caring for their young and eating their food,” per the plaintiffs.
To combat this, the plaintiffs are suing for a violation of the Appointments Clause since officials who possess “significant federal power” must be appointed as “Officers of the United States” by the President themselves. However, the complaint says that the DAARP is a civil servant and an employee of the NMFS, and not a government-appointed official which the plaintiffs claimed is a violation of the Constitution.
According to the complaint, he holds this post unconstitutionally and lacks the authority to adopt and enforce this rule. The plaintiffs noted that they always interacted with the dolphins respectfully and carefully, and had never been cited for harming or harassing dolphins in the past. They hope that the Rule is vacated so they can continue to interact with the spinner dolphins respectfully, for recreational and commercial purposes.
The plaintiffs are seeking an order that the rule violates the Appointments Clause, a permanent injunction enjoining the defendants from enforcing the Rule, a declaration that the DAARP’s appointment violates the Appointments Clause and an injunction against him, attorney’s fees and costs, and other relief.
The plaintiffs are represented by the Pacific Legal Foundation.
