I. Introduction
Dolphins have long inspired human fascination and imagination—animals that look so different from us but are so alike in many ways. For hundreds of years, we have been curious about these sea creatures that breathe air, nurse their young, communicate with their companions, and live in complex communities. Along with this curiosity and interest, came a desire to interact with the species. Both in the wild and through captivity, humans have tried in various ways to develop relationships with dolphins, to touch them, to connect with them. Dolphin-related tourism has grown to a billion-dollar-a-year industry driven by this basic desire coupled with a willingness to pay. However, this relationship with humans, brought on by our need to connect with the animals through “swim-with the dolphins” programs and other means, has proved a double-edged sword—one that has afforded them special protections but may ultimately threaten the conservation of wild dolphin populations.
This article explores recent legal and regulatory issues associated with dolphins both in the wild and in captivity. It pays special attention to areas involving human-dolphin interaction, such as entertainment, research, and therapy. It also explores current regulatory issues in the United States related to both swim-with dolphins encounters. It concludes by examining larger themes drawn from each of these areas.
II. Population Status of Dolphins
Conservation status varies widely among dolphin species. While many species appear to be doing relatively well with population numbers remaining steady, others have become increasingly rare. Currently, some of these dolphin species are threatened with extinction. The largest threats to their survival come from humans.
A. Global Conservation Status
In 2005, a United Nations global survey found that more than 70% of dolphin species were at risk through snare fishing nets. In addition, many were threatened by pollution, military sonar, and habitat destruction as well as intentional hunting in the Faroe Islands as well as Japan. In response to these findings, the United Nation’s Environmental Program advocated upgrading international protection for eight species at that time—including the Atlantic spotted dolphin among others. (UN Urges Protection for Dolphins, PHYS.org (November 2005), available at https://phys.org/news/2005-11-urges-dolphins.html).
1. Convention on International Trade in Endangered Species (CITES)
Three species of marine dolphin—the Australian snubfin dolphin, Indo-Pacific humpback dolphin, and Atlantic humpbacked dolphin—are listed under CITES Appendix I. The Irrawaddy river dolphin is also listed under this Appendix. CITES Appendix I contains species that are threatened with extinction. Trade in Appendix I species is highly regulated, requiring both an import and export permit. It is only allowed to occur under exceptional circumstances and for non-commercial purposes. All other dolphin species, including those most common in the United States, are listed under CITES Appendix II. (Marine Species Regulated Under the Convention on International Trade in Endangered Species of Wild Fauna and Flora, NOAA Fisheries (October 2017), available at https://www.fisheries.noaa.gov/national/international-affairs/marine-species-regulated-under-convention-international-trade-endangered-species-wild). Appendix II designates species that though not currently threatened with extinction but “may become so unless trade is closely controlled.” Appendix II requires that anyone seeking to obtain these animals must receive an export permit and provides that such permits only be granted when it is determined that “trade will not be detrimental to the survival of the species in the wild.” (The CITES Appendices, CITES (no date), available at https://www.cites.org/eng/app/index.php).
B. Populations under the MMPA
Dolphins are protected under the Marine Mammal Protection Act, where discrete populations are given different conservation designations under the Act depending on their relative abundance in the wild. Currently, the Western North Atlantic Stock of bottlenose dolphins is listed as “depleted” while five other U.S. stocks are classified as “strategic”. (Bottlenose Dolphin (Tursiops Truncatus), NOAA Fisheries (January 2015), available at http://www.nmfs.noaa.gov/pr/species/mammals/dolphins/bottlenose-dolphin.html).
Depleted stocks are defined as those which the Secretary of Commerce, in consultation with the Marine Mammal Commission and the Committee of Scientific Advisors on Marine Mammals, determines to be “below its optimum sustainable population." (A state may also make the determination that a particular species or population stock is depleted in the event that authority for conservation management is transferred to them under section 109 of the MMPA. (Protected Resources Glossary, NOAA Fisheries (May 2014), available at http://www.nmfs.noaa.gov/pr/glossary.htm#depleted). In addition, endangered or threatened species are also considered “depleted” in addition to being protected under the Endangered Species Act (“ESA”).
Strategic stock is defined as a marine mammal population stock for which “the level of direct human-caused mortality exceeds the potential biological removal level”. (16 U.S.C. § 1362(19) (October 1972). Strategic stocks include those already listed as threatened or endangered under the ESA, as well as those “which, based on the best available scientific information is declining and likely to be listed as a threatened species” under the ESA “within the foreseeable future.” (16 U.S.C. § 1362(19) (October 1972).
III. Dolphins in Entertainment
Roughly 3,000 whales and dolphins are held in aquaria, zoos, and marine parks around the world. When Marine Studios opened in Florida in 1938, it became the world’s first dolphinarium—a pool or aquarium where dolphins are kept and trained for public displays. (Introduction to Dolphins, Dolphins-World (no date), available at http://www.dolphins-world.com/dolphins-in-captivity/). Though institutions vary, many follow a business model whereby patrons pay an admission fee to see dolphins perform various tricks or pay for the ability to interact with the animals in various ways usually feeding or swimming with them. While those in the industry maintain that the care captive dolphins receive is adequate, concerns persist as to the impact of training and human interaction. Critics question the practices surrounding the sourcing of dolphins for captive display, the welfare implications of keeping dolphins in captivity, and finally, the impacts of swim-with programs on the animals involved as well as the species at large.
A. Sourcing: Wild Capture Versus Breed in Captivity
Wild capture efforts, where dolphins are captured from wild pods to be kept in captivity, have come under increasing public scrutiny. Advocates believe that capture and transport methods are inhumane, and believe these efforts are driven by public demand created by swim-with encounters or other entertainment purposes. (Swimming with Dolphins, Whale and Dolphin Conservation (no date), available at http://us.whales.org/issues/swimming-with-dolphins). Some species of dolphin are more successful at reproducing in captivity than others. Aquaria have experimented with different breeding methods to varying degrees of success. The movie Blackfish drew attention to issues of wild capture as well as captive reproduction techniques.
B. Life in Captivity
Blackfish, a film which enjoyed widespread popularity after it was released in 2013, elevated ethical concerns about keeping cetaceans in captivity. Many aquaria and marine parks that house these large marine mammals faced increased public scrutiny and questions regarding the welfare of these animals in the wake of the film’s release. Many institutions were met with protestors and saw decreased ticket sales in the years that followed. Though the film centered on orca whales, many of its criticisms applied equally to other varieties of dolphins.
Opponents of captivity point to increased risks from pollution and disease, as well at the threat of injury to humans, as reasons why dolphins should not be kept in confined spaces where they interact with trainers or the public. They further maintain that dolphins kept under such conditions suffer increased anxiety and are unable to express natural behaviors—hunting, playing, communicating, and traveling as they would do in the wild. (Swimming with Dolphins, Whale and Dolphin Conservation (no date), available at http://us.whales.org/issues/swimming-with-dolphins). Opponents suggest that these problems contribute to shorter lifespans in captive dolphin populations; though, many in the industry dispute such claims.
C. Swim-with Encounters
“Swim-with encounters” that allow humans to physically interact with dolphins either in the wild or in a confined tank have increased in popularity in recent years. Proponents maintain the activity promotes awareness and encourages conservation by facilitating human-animal bonds. Critics hold that dolphin encounters are problematic for the welfare of the animals, interfere with wild-breeding populations, and incentivize the capture of wild dolphins in effect undermining conservation efforts. (Swimming with Dolphins, Whale and Dolphin Conservation (no date), available at http://us.whales.org/issues/swimming-with-dolphins).
Swim with the dolphins programs have proven very lucrative but also controversial. In broad terms, wild dolphin swims have been credited with bringing tourist revenue into coastal communities. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html). Swim with programs take one of two forms— either tourists interact with dolphins in an enclosed, captive setting or in open waters in an area where wild dolphins are found.
1. Captive Swim-With Programs
Many captive dolphin programs in the United States and abroad allow visitors to swim in the water with captive dolphins or otherwise interact with them in the water in return for payment. Some such facilities include SeaWorld, the Dolphin Research Center, and the Miami Seaquarium. Often these activities can be quite expensive depending on the venue and what activities are included. Some facilities allow visitors to kiss or hug the dolphins, or even ride them through the water. The animals are rewarded for their participation with food rewards, generally fish or squid.
2. Wild Swim-With Programs
In addition to captive swim-with programs, that allow the public to interact with dolphins in a closed environment, wild swim with the dolphins programs facilitate interactions with free-roaming dolphins. Most often, visitors are brought by boat to locations where dolphins are frequently found and dropped into the water near or in the middle of a pod. Where dolphins have larger or less predictable ranges, some tours will track and follow the dolphins rather than bringing visitors to a specific location where they can be found.
Proponents of wild swim-with programs suggest that the negative impacts on the animal are minimal and maintain that the animals have the option of leaving the area to avoid human contact if the choose. However, those opposed wild dolphin swims argue the activity is harmful and rely on a growing body of research that documents the negative effect of swimming with free-roaming dolphins. Many suggest that these dolphins are more likely to become dependent on humans for food and suffer stress from the encounters, which sometimes include large groups of tourists. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html). Dolphins may also be at increased risk for injury from boat propellers. (Swimming with Dolphins, Whale and Dolphin Conservation (no date), available at http://us.whales.org/issues/swimming-with-dolphins).
Regardless of the type program, the activity of swimming with dolphins in any capacity implicates both state and federal law. Recently, there have even been attempts to regulate the practice in one particular jurisdiction—Hawaii.
IV. Legal Regulation of Swim-With Programs
Laws governing the act of swimming with dolphins vary by place. Many Caribbean nations advocate the practice, and regulate the industry for profit. By and large, these countries have few restrictions on the practice, viewing it as largely beneficial due to the tourist revenue it generates. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html).
There is currently no country that prohibits every kind of swim-with dolphin encounter, though several outlaw the practice with respect to wild populations allowing only captive encounters. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html).
However, many of the laws in this area are fluid and still developing as the activity’s popularity increases. Enforcement presents challenges, as well, as these encounters take place at sea often with limited government supervision.
A. “MMPA and “Takings” under Swim-with Programs
In the United States, the Marine Mammal Protection Act (“MMPA”) is the predominant federal law that governs swim-with dolphin encounters. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html). The MMPA, as it is known, makes it a federal crime to “take” a marine mammal in U.S. waters. (16 U.S.C. § 1372). The concept of “taking” an animal is further defined in the Act as “to harass, hunt, capture, collect, or kill… any marine mammal” or to attempt any of these enumerated actions. (50 CFR 216.3, available at http://www.nmfs.noaa.gov/pr/glossary.htm#take).
A take also includes “restraint or detention of a marine mammal”, “disturbing or molesting a marine mammal”, as well as “feeding or attempting to feed a marine mammal in the wild.” (50 CFR 216.3, available at http://www.nmfs.noaa.gov/pr/glossary.htm#take). Of most relevance to swim-with dolphin encounters is the issue of “harass[ment]”—such as “disturbing or molesting” an animal. Because the MMPA lacks more specific definitions of these terms, there is some variation in how they are interpreted among different states. Currently, while some states allow for offshore swimming, others prohibit the practice outside of marine parks or zoological facilities. (Swimming with the Dolphins –Sustainable Tourism and Conservation Laws, International Wildlife Law.org (no date), available at http://www.internationalwildlifelaw.org/dolphin.html).
Aquaria and marine parks that display dolphins do so under an exemption to the MMPA allows for public display. The law allows for a take in circumstances where the entity obtains a permit and “offers a program for education or conservation purposes that is based on professionally recognized standards of the public display community.”(16 U.S.C. § 1374). However, several advocacy groups have questioned the educational value of such exhibits citing studies that found little educational benefit to visitors. (Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust Captivity Practices Since 1972, 28 J. Land Use & Envtl. L. 337, 339 (2013)).
B. Problems with Agency Enforcement: National Marine Fisheries Services
The National Marine Fisheries Service (“NMFS”) is the federal agency responsible for the stewardship of marine resources, including marine mammals, in the United States. NMFS, a division of the National Oceanic and Atmospheric Administration, (“NOAA”), which is contained within the Department of Commerce, is the primary agency tasked with enforcing the Marine Mammal Protection Act—the foremost law governing conservation and management of cetaceans in U.S. waters.
However, fractured responsibilities among regulating agencies contributes to the holes in regulation and oversight under the MMPA. While NMFS, under the Department of Commerce, protects whales, dolphins, porpoises, seals, and sea lions. The Department of the Interior, through the United States Fish and Wildlife Service (FWS), enforces the Act with respect to walruses, manatees, dugongs, sea otters, and polar bears. Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust Captivity Practices Since 1972, 28 J. Land Use & Envtl. L. 337, 339 (2013).
With respect to dolphins in captivity, NMFS shares regulatory with USDA-APHIS, the agency charged with enforcing the Animal Welfare Act. As part of its duties, NMFS is maintains life history records of marine mammals in U.S. display facilities and all foreign dolphinaria and aquaria with which they trade. NMFS reports of inventories “chart a history of disturbing causes of death, high mortality rates, and low birth rates” which may be indicative of the maladaptation to captivity. Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust Captivity Practices Since 1972, 28 J. Land Use & Envtl. L. 337, 339 (2013).
1. Captive Swim-With Regulation
The division of administrative authority has created a regulatory void that characterizes captive swim-with the dolphins programs. Historically, APHIS assumed regulatory authority over these programs in 1994 and published proposed regulations soon after. Still, the agency did not publish final regulations until almost four years later, allowing interactive dolphin programs to operate without any federal regulation during this time. The final regulations that were released in 1998 set protective requirements for refuge areas, acceptable ratios of swimmers to dolphins and staff, and interaction times for the purpose of improving the welfare of dolphins kept for such purposes. However, just six weeks after the final regulations were issued, the industry successfully sought an exemption for “wading programs”. Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust Captivity Practices Since 1972, 28 J. Land Use & Envtl. L. 337, 339 (2013). A year later in 1999, an influential member of the display community reportedly funded a lobbyist to seek repeal of these regulations and succeeded in obtaining a temporary suspension that was still in place roughly a decade-and-a-half later. During that time, swim-with the dolphin facilities continue to operate with no federal regulation.
In January of 2016, APHIS finally issued new proposed rules for public comment intended to mitigate the risk to both dolphins and humans. The proposed rule provided standards for air and water quality, entry and exit areas, but also lengthened maximum interaction time. (9 C.F.R. Parts 1 and 3, Federal Register Vol. 81, No. 22 (February 2016), available at https://www.aphis.usda.gov/animal_welfare/downloads/awa/AWA_FRN/2010s/147%20Animal%20Welfare.%20Proposed%20Rule.%20February%203,%202016.pdf). Finally, the proposed rule clarifies that in-water interactive programs, including swim-with programs, must comply with the regulations of the Animal Welfare Act. (Questions and Answers: Standards of Care of Marine Mammals in Captivity; Proposed Rule, APHIS (January 2016), available at https://www.aphis.usda.gov/publications/animal_welfare/2016/faq_marine_mammals.pdf). After receiving more than 5,000 public comments, many of which were individuals or organizations who felt the rule did little to provide for the health and safety of the animals, APHIS announced the comment period would be extended. (Animal Welfare; Marine Mammals-A Proposed Rule by APHIS (February 2016), available at https://www.federalregister.gov/documents/2016/02/03/2016-01837/animal-welfare-marine-mammals).
2. Regulations of Wild Swim-With Programs
While NMFS keeps some records of dolphins in captivity, the bulk of their regulatory authority focuses on enforcing the MMPA with respect to wild dolphin populations. In the late 1990’s, NMFS became concerned with “swimming and feeding activities . . . causing disturbance of the dolphins.” (Spradlin et al., Interactions Between the Public and Wild Dolphins in the United States Biological Concerns and the Marine Mammal Protection Act, Biennial Conference on the Biology of Marine Mammals(November 1999), available at http://www.nmfs.noaa.gov/pr/pdfs/education/dolphins_public.pdf).
Agency reports identified two primary locations where swim-with-the-dolphins activities were taking place in the wild. The first examined bottlenose dolphins along the southern Atlantic coast, especially the state of Florida. The second focused on spinner dolphins in the Hawaiian Islands.
NMFS expressed concern that many swim-with programs in the southeast appeared to be enabled by feeding the dolphins, though doing so was explicitly prohibited by MMPA. (See In the Matter of Thomas E. Rainelli and Hathaway Boat Rentals, Inc.) In the Hawaiian Islands, NMFS’ primary concern was that swim-with dolphin tourism companies were encroaching on sensitive habitat areas and disrupting spinner dolphin’s essential behaviors. (Spradlin et al., Interactions Between the Public and Wild Dolphins in the United States Biological Concerns and the Marine Mammal Protection Act, Biennial Conference on the Biology of Marine Mammals(November 1999), available at http://www.nmfs.noaa.gov/pr/pdfs/education/dolphins_public.pdf).
V. Hawaiian Swim-With Encounters: A Case Study
Hawaii has historically been one of the most popular places in the United States to swim with wild dolphins. As of 2016, Hawaii supported over 200 businesses within the field of dolphin-related tourism. When tourism surged in the late nineties, fisheries regulators signaled that they would consider increasing industry regulation. Ultimately, however, they opted for investing in more research as to the biological effects of swim-with programs on spinner dolphin populations and promoted a voluntary program that discouraged tourists from engaging in such activities. (Feds Seek Rule for Swims with Hawaiian Dolphins, PHYS.org (March 2016), available at https://phys.org/news/2016-03-feds-hawaii-dolphins.html).
By 2014, hundreds of thousands of tourists took part in dolphin encounter tours in Hawaii yearly. Many biologists expressed concern about the implications of the Hawaiian tourism industry on local spinner dolphin populations. (Policy Urgently Needed to Protect Hawaii’s Dolphins, PHYS.org (December 2014), available at https://phys.org/news/2014-12-policy-action-urgently-hawaii-dolphins.html#nRlv).
A. Swim-With and Effects on Spinner Dolphins
Spinner dolphins, the species most commonly involved in Hawaiian swim-with programs, are nocturnal mammals that hunt in large groups at night. At sunrise, when their prey moves farther offshore, spinner dolphins return to sheltered bays along the Hawaiian cost to rest, engage in social behaviors, and tend to their young. (Johnston, D. A Hard Day’s Night: Spinner Dolphins Also Need Their Rest, Ka Pili Kai University of Hawai’I (October 2006), available at http://www.fpir.noaa.gov/Library/PRD/Spinner%20Dolphin/JohnstonKPK2006.pdf).
Research indicates that, in part because swim-with encounters take place during the day when the dolphins ordinarily sleep, they have negative effects on the animals and interfere with their ability to engage in these necessary behaviors. (Swimming with Wild Spinner Dolphins, NOAA Fisheries (no date), available at http://www.fpir.noaa.gov/PRD/prd_swim_with_wild_dolphins.html). Some findings suggest that human presence requires the dolphins burn calories at a higher rate because of the need to remain alert more often and may expose the animals to chronic stress resulting in a reduction of fitness over time. (Feds Want to Ban Swimming with Dolphins in Hawaii, AP News (August 2016), available at https://apnews.com/bb7dad7d5a274a3aa4b36553de7c56dd/feds-want-ban-swimming-hawaii-dolphins).
B. Proposed Regulation to Address Detrimental Effects
The National Marine Fisheries Service, encouraged by the growing body of research of swim-with tourism on spinner dolphins, proposed a rule in 2016 to prohibit swimming or approaching within 50 feet of a dolphin along the Hawaiian coast. The proposed regulations, drafted pursuant to the authority of the MMPA, apply to waters within two nautical miles of the Hawaiian coast as well as the waters between the islands of Lanai, Maui, and Kahoolawe. (50 C.F.R. Part 2016, available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-20324.pdf). An estimated 98% of Hawaii’s spinner dolphins reside within the proscribed area. (Feds Want to Ban Swimming with Dolphins in Hawaii, AP News (August 2016), available at https://apnews.com/bb7dad7d5a274a3aa4b36553de7c56dd/feds-want-ban-swimming-hawaii-dolphins).
NMFS cited concerns that the presence of boats and swimmers have caused “a departure from natural behavioral patterns that support the animal’s health and fitness” as the primary justification behind their proposed rule. (50 C.F.R. Part 2016, available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-20324.pdf). However, the proposal provided exceptions for those who inadvertently come in close contact with a dolphin and for instances where steering away from the dolphin would be unsafe. (Federal Officials Want to Ban Swimming with Dolphins in Hawaii, The New York Times (August 2016), available at https://www.nytimes.com/2016/08/26/us/federal-officials-seek-ban-on-swimming-with-spinner-dolphins-in-hawaii.html?mcubz=0).
Prior to the proposed rule, some tour operators voluntarily followed informal less-restrictive guidelines promulgated by the Coral Reef Alliance. (Federal Officials Want to Ban Swimming with Dolphins in Hawaii, The New York Times (August 2016), available at https://www.nytimes.com/2016/08/26/us/federal-officials-seek-ban-on-swimming-with-spinner-dolphins-in-hawaii.html?mcubz=0). In drafting the 2016 proposed regulations, NOAA relied on both independent and commissioned research by major universities and others.
C. NMFS/NOAA and Research on “Best Practices”
A study carried out by Duke University in 2014 sought to determine best practices for protecting wild spinner dolphins. (Heenehan et al., Using Ostrom's common-pool resource theory to build toward an integrated ecosystem-based sustainable cetacean tourism system in Hawai`I, Journal of Sustainable Tourism vol. 23 (October 2015), available at http://www.tandfonline.com/doi/abs/10.1080/09669582.2014.986490?journalCode=rsus20). The research, commissioned by NOAA, focused on the impact of human activities on dolphins in the Makako Bay and Kealakekua Bay on the Kona coast of Hawaii. The study ultimately recommended management at the bay level through a combination of federal regulation and community-based conservation measures. (Federal and Local Action Needed to Protect Hawaii’s Spinner Dolphins, Duke University (December 2014), available at https://nicholas.duke.edu/about/news/federal-and-local-action-needed-protect-hawaiis-spinner-dolphins). However, the language of NOAA’s 2016 proposed rule indicates that they likely found such solutions to be impracticable in opting for a flat prohibition. (50 C.F.R. 216, available at https://www.federalregister.gov/documents/2016/08/24/2016-20324/protective-regulations-for-hawaiian-spinner-dolphins-under-the-marine-mammal-protection-act).
NOAA’s proposal cited at least one study that found decreased numbers of spinner dolphins in traditional resting areas. It is unclear from these findings whether increased tourism has had a negative effect on dolphin population, or possibly caused dolphins to relocate to new resting areas. (Hawaiian Spinner Dolphins, NOAA (no date), available at https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/archive/dolphinsmart/pdfs/spinner_faq.pdf). (For examples of abuses observed in research on Hawaiian populations, see Policy Urgently Needed to Protect Hawaii’s Dolphins, PHYS.org (December 2014), available at https://phys.org/news/2014-12-policy-action-urgently-hawaii-dolphins.html#nRlv).
D. Reaction to NMFS’ Proposed Rule
Many within the industry voiced opposition to NMFS’s proposal, arguing that the industry generated important tourist revenue and served educational purposes. Others maintained that the rule was misguided and that negative effects could be mitigated by implementing more limited restrictions reserved to the hours when the dolphins are most likely to be sleeping. Tour operators, they argued, could simply take steps to avoid disturbing sleeping animals. (Feds Seek Rule for Swims with Hawaiian Dolphins, PHYS.org (March 2016), available at https://phys.org/news/2016-03-feds-hawaii-dolphins.html). However, dolphins sleep resting only half of their brains at a time, while the other half allows the to surface for air and swim slowly. (http://www.fpir.noaa.gov/PRD/prd_swim_with_wild_dolphins.html). Because dolphins swim even while they are asleep, biologists rejected these solutions as impracticable. (Feds Seek Rule for Swims with Hawaiian Dolphins, PHYS.org (March 2016), available at https://phys.org/news/2016-03-feds-hawaii-dolphins.html).
Others expressed concern that the regulation would increase demand for captive dolphins, as the rule would only apply to wild dolphin-encounters. Welfare advocates generally oppose keeping dolphins in confined tanks and some worry that the regulations will simply shift tourists from wild to captive dolphin encounters. There is concern that NMFS’ rule may ultimately lead to both increased demand at captive dolphin-swim facilities as well as for wild-captured dolphins to supply marine parks if tourists are no longer allowed to swim with wild dolphins. (NOAA Considering Ban on Swimming with Hawaiian Spinner Dolphins, Earth Island Journal (January 2017), available at http://www.earthisland.org/journal/index.php/elist/eListRead/noaa_ban_swimming_spinner_dolphins_hawaii/).
E. Current Legal Status of Swim-With in Hawaii
It is the position of the National Oceanic and Atmospheric Association that, “When people swim with resting wild spinner dolphins, the dolphins may be drawn out of their resting state to investigate the swimmers. This may be a change in behavior which may constitute ‘harassment’ under the Federal law that protects them and other marine mammals, the Marine Mammal Protection Act (MMPA). Any act of pursuit, torment, or annoyance that has the potential to disrupt a marine mammal's behavior is ‘harassment’ under this Act and is, therefore, against the law.” (http://www.fpir.noaa.gov/PRD/prd_swim_with_wild_dolphins.html).
In response to NOAA’s proposal, the Hawaii legislature introduced a concurrent resolution urging NOAA to consider all stakeholders and consider the economic impacts of the proposed regulation.
NOAA’s statutory authority allows them to regulate the Exclusive Economic Zone (“EEZ”), an area colloquially known as “U.S. waters,” which extends up to 200 nautical miles from the U.S. coastline. The United Nations Convention on the Law of the Sea created these parameters and granted sovereign rights to nations to govern their EEZs for “the purpose of exploring, exploiting, conserving and managing natural resources.” (What is the EEZ?, NOAA Fisheries (no date), available at https://oceanservice.noaa.gov/facts/eez.html).
NOAA’s proposed regulations for Hawaiian spinner dolphins was submitted for notice and comment in 2016. The period for public comments closed on October 23, 2016. At the time of this writing, a final rule is expected to be issued in late 2017. (81 F.R. 57854, available at https://www.federalregister.gov/documents/2016/08/24/2016-20324/protective-regulations-for-hawaiian-spinner-dolphins-under-the-marine-mammal-protection-act).
VI. Dolphin Assisted Therapy
In addition to swim with programs, other areas of human-dolphin interaction have proved controversial in other areas as well. One of these is the use of Dolphin Assisted Therapy (“DAT”). While there are a growing number of programs worldwide that offer DAT, many suggest that there is no scientific evidence to support the use of dolphins as part of effective therapy for physical or mental disabilities such as autism spectrum disorder.
Some advocacy groups have accused dolphin assisted therapy of being a moneymaking scheme, cloaked under the guise of altruism. To support these claims, they point to the fact that a single session sometimes costs thousands of dollars as well as to the lack of scientific evidence to indicate that dolphin assisted therapy is any more beneficial than less expensive forms of animal-assisted therapy. Finally, they believe that dolphin assisted therapy is more harmful to the animals themselves than canine or equine therapy. (Swim-with Attractions & Dolphin Assisted Therapy, Animal Welfare Institute (no date), available at https://awionline.org/content/swim-attractions-dolphin-assisted-therapy).
VII. Dolphins in Research
Research on dolphins began in earnest in the 1940’s. (Dolphin Research, Dolphins-World (April 2017), available at http://www.dolphins-world.com/dolphin-research/). Since then, much of the research on cetacean’s has focused assessing their cognitive capacities, determining the structures of their social groups, and assessing ways in which they might benefit humans either through direct use or by assisting in the development of new technologies.
The United State’s Navy founded its Marine Mammal Research program in the 1960 with the objective of learning more about echolocation and seeking to apply this concept to create technologies in service of humans. (The Story of Navy Dolphins, Public Broadcasting Station Frontline (no date), available at http://www.pbs.org/wgbh/pages/frontline/shows/whales/etc/navycron.html). The Navy went on to employ dolphins during the Vietnam and Persian Gulf Wars for the purpose of detecting and retrieving missiles and mines. In 2007, the U.S. Navy spent an estimated 14 million dollars on marine mammal research and retained about 130 dolphins in its possession. (Dolphin Research, Dolphins-World (April 2017), available at http://www.dolphins-world.com/dolphin-research/).
The 1970’s marked a period of experimental research that has since raised deep ethical concerns. This era included experimentation with dolphin live-in studies, LSD experiments, and communication research. American neuroscientist Dr. John Lilly began studying the brains of live dolphins hoping to teach them to communicate by mimicking English words with their blowholes. In 1961, Lily published his theory on the potential of interspecies communication in a book entitled, Man and Dolphin, which captured the imagination of the American public, leading to increased interest in the species. So much so that Lilly won funding from NASA and other government agencies to open a lab in the Caribbean for the stated purpose of nurturing relationships between humans and cetaceans and learning more about the prospect of interspecies communication. (The Dolphin who Loved Me: the NASA-Funded Project that went Wrong, The Guardian (June 2014), available at https://www.theguardian.com/environment/2014/jun/08/the-dolphin-who-loved-me).
As part of Lilly’s communication experiments, a young woman was asked to live with a dolphin for six months in the lab. The dolphin was housed in the upper floors of the lab in just a few feet of water. (The Dolphin who Loved Me: the NASA-Funded Project that went Wrong, The Guardian (June 2014), available at https://www.theguardian.com/environment/2014/jun/08/the-dolphin-who-loved-me). However, the sometimes sexual nature of the relationship between the woman and the dolphin soon overshadowed the intended purpose of the research. (How a Science Experiment Led to Sexual Encounters Between a Woman and a Dolphin, The Atlantic (June 2014), available at https://www.theatlantic.com/international/archive/2014/06/how-a-science-experiment-led-to-sexual-encounters-for-a-woman-and-a-dolphin/372606/) (See also: Home is Where Your Dolphin is, RadioLab (August 2014), available at http://www.radiolab.org/story/home-where-your-dolphin/).
In addition, Lilly became interested in the mind-altering powers of the drug LSD and began injecting dolphins with the drug starting in 1964. (How a Science Experiment Led to Sexual Encounters Between a Woman and a Dolphin, The Atlantic (June 2014), available at https://www.theatlantic.com/international/archive/2014/06/how-a-science-experiment-led-to-sexual-encounters-for-a-woman-and-a-dolphin/372606/). Concerns about the dolphins’ welfare ultimately led to Lilly’s downfall, and the closure of his Caribbean lab. While the three dolphins kept there were transferred to Lilly’s Miami lab, after the move the animals’ condition quickly deteriorated. (The Dolphin who Loved Me: the NASA-Funded Project that went Wrong, The Guardian (June 2014), available at https://www.theguardian.com/environment/2014/jun/08/the-dolphin-who-loved-me).
Since that time, cetacean research has moved away from such controversial tactics. The Animal Welfare Act (“AWA”), enacted in 1979, governs care of captive dolphins in research. (U.S. Dolphin Regulations, World Animal Protection (no date), available at https://www.worldanimalprotection.us.org/our-work/animals-wild/marine-animals-captivity/us-dolphin-regulations). The U.S. Department of Agriculture, specifically the Animal Plant Health Inspection Services (“APHIS”), is charged with carrying out the regulations prescribed in the act. The AWA also covers captive swim-with-the-dolphins programs under Section 3.111. (9 C.F.R Chapter 1, Subchapter A, Part 3 (E) §3.111).
Dolphin research receiving government funding falls under the jurisdiction of the National Institute of Health (“NIH”) but must also comport with the MMPA. Institutions conducting such research are subjected to inspection and grants of approval by local Institutional Animal Care and Use Committee Boards (“IACUC”). The purpose of IACUC review boards is to ensure that these facilities are not violating provisions of the AWA issued by APHIS. (Institutional Animal Care and Use Committee Guidebook, Office of Laboratory Animal Welfare (2002), available at https://grants.nih.gov/grants/olaw/guidebook.pdf). APHIS, under the Department of Agriculture, sets regulatory standards under the AWA for captive marine mammal enclosures including space requirements, sanitation, water quality, and transportation guidelines. In addition, APHIS sets rules for health and husbandry of the animals. However, many believe these standards are outdated or ill enforced. They maintain the APHIS lacks the regulatory expertise to ensure that captive marine mammals are adequately cared for. Generally, those in the industry dispute these claims and reject calls for increased regulatory oversight. (Stephanie Dodson Dougherty, The Marine Mammal Protection Act: Fostering Unjust Captivity Practices Since 1972, 28 J. Land Use & Envtl. L. 337, 339 (2013).
While much of the research on cetaceans has taken place in captive labs or marine park settings, over the last thirty years, there has been a discrete movement away from these practices in favor of studying populations in the wild. Proponents suggest that this new strain of research is more collaborative and less invasive than studies on captive animals. In addition, research on wild populations allows for stronger external validity though it limits the investigators ability to control or manipulate the animal’s environment. So long as precautions are taken not to increase wild dolphins susceptibility to human activity or pathogens, interspecies collaborative research, which seeks to study animals under natural conditions while respecting their autonomy, can provide important insights “while not necessitating the ethical and scientific compromises that characterize research in captivity.” (Marino and Frohoff, Towards a New Paradigm of Non-Captive Research on Cetacean Cognition, PLoSOne vol.(9) 6 (September 2011), available at http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0024121).
VIII. Conclusion
Dolphins have long been an object of human fascination. Today, there are several arenas in which humans and dolphins continue to interact. Each of these spawn complex legal and ethical issues. The United States, as well as other countries, is still very much grappling with how and whether to regulate these interactions. Each remains a rapidly developing field of law; one with consequences for not only our own species, but also dolphins.
The conflict over swim-with-the-dolphin tours in Hawaii lays bare some of the disagreements between conservationists and preservationists, as well as between the captive and wild dolphin tourism industries. Hawaii, as a state, possesses a strong conservation ethic and has gone farther than most of its peers in implementing stringent environmental protections. (See, for example, Hawaii’s expansive use of the public trust doctrine). However, the state’s economy is almost entirely reliant on tourism. Eco-tourism has proved successful in wedding these two interests in many instances; however, the proposed regulatory ban on swimming with spinner dolphins exposes the potential conflicts of interests that are created by seeking to combine environmentalism and industry. Conflicts of interests are rife and complex. As research on the negative effects of tourism on dolphin populations mounts, NOAA and Hawaii must ultimately decide which of these twin masters to serve—tourism or conservation.
The policy conflict in Hawaii over dolphin swims has made for some interesting bedfellows. Along with biologists and welfare advocates that oppose wild dolphin swims are captive dolphin swim programs seeking to eliminate competition. One perhaps unintended effect of the proposed regulation would be to buttress the captive dolphin tourism industry, making it “the only game in town” for tourists determined to interact with the animals. Ironically, many of those groups opposed to wild swims are even more strongly opposed to captive programs, many of which have been shown to cause extreme stress to the animals and prohibit them from engaging in important natural behaviors. (Debunking Captivity: 3 Reasons not to Keep Dolphins in a Tank, National Geographic (April 2014), available at https://voices.nationalgeographic.org/2014/04/08/debunking-captivity-3-reasons-not-to-keep-dolphins-in-a-tank/). For some, wild dolphin swim operations amount to the lesser of two evils—though the population at large is not implicated by captive programs apart from the possibility of increasing demand for wild-caught animals.
In the future, many of these questions only get harder and problems more acute. Our ongoing fascination with dolphins has proved a double-edged sword. It acts as the impetus behind many national and international conservation laws that serve to protect dolphins today. However, beneath much of the regulation is a desire to protect dolphins for our own benefit—that is to say what they can offer to humans. Because of their intelligence, beauty, and charisma, dolphins continue to drive large tourist industries. Many tourists are not content to observe the animals from afar but wish to interact with them close up in person. It is this affection for dolphins that has borne our greatest accomplishments in protecting them but it underwrites some of the most serious problems they face going forward.