When Hawaii authorities referred 33 swimmers to federal law enforcement in 2023 for harassing a pod of spinner dolphins off the Big Island’s Honaunau Bay, it drew national outrage. The swimmers surrounded the animals in shallow water, violating a federal rule prohibiting approaching within 50 yards.
That law, implemented in 2021, was designed to protect Hawaii’s spinner dolphins, which forage offshore at night and rest near shore during the day. But now, that same rule is under threat, as a federal court case challenges not the science behind the ban but how the government enacted it.
At stake now is the future of close dolphin encounters in Hawaii and the legal framework that underpins similar wildlife protections. These could potentially influence future rules, impacting other species like Hawaiian monk seals and sea turtles.
A legal fight with broad implications.
Psychotherapist Eliza Wille and tour operator Lisa Denning, both based in Hawaii, ask the U.S. Court of Appeals for the Fourth Circuit to vacate the rule. They say it was enacted by an improperly appointed NOAA official, violating the U.S. Constitution’s Appointments Clause.
Wille, who has worked at residential treatment centers in Kona, built her practice around experiential therapy, including dolphin-assisted sessions that she says helped clients access difficult emotions.
A longtime dolphin guide and ocean photographer, Denning co-founded a nonprofit offering dolphin-based healing programs for trauma survivors. Both say the 2021 rule decimated their work—Denning reported a 90% loss in income.
Their lawsuit doesn’t challenge NOAA’s findings that human interactions disturb spinner dolphins. It argues that a key federal official lacked the authority to implement the rule in the first place. If the court agrees, it could upend how wildlife protections are created, with implications far beyond Hawaii.
Why spinner dolphins need protection.
Spinner dolphins rest during the day in coastal bays like Honaunau and Kealakekua, using a form of unihemispheric sleep that allows one half of the brain to rest while the other remains alert.
NOAA researchers found that human activity with dolphins, sometimes up to 82% of daylight hours in some bays, significantly disrupted the resting periods.
When surrounded or pursued by swimmers, dolphins may flee or remain on high alert, behaviors that can interfere with rest, feeding, and the care of young. Over time, NOAA warns that such repeated stress can have population-level consequences.
Beyond biology, spinner dolphins—Nai’a in Hawaiian—also have cultural importance. In some Native Hawaiian traditions, they are seen as aumakua, or spiritual guardians, and remain deeply respected as part of the living ocean environment.
The rule—and the challenge to it.
The 2021 rule banned people and vessels from approaching spinner dolphins within 50 yards. It applies to swimmers, snorkelers, boats, drones, and kayaks. Violations can result in fines or criminal charges, though enforcement has been mixed.
Wille and Denning argue that the official who signed the rule lacked constitutional authority. The government counters that any procedural defect was fixed when NOAA Administrator Richard Spinrad, a Senate-confirmed appointee, ratified the rule in 2022.
The plaintiffs say that’s not enough—and that post-hoc ratification after being sued undermines the rule’s legitimacy.
If the court agrees, the rule could be invalidated, possibly opening the door to challenges against other environmental regulations under similar conditions.
What does it mean for Hawaii travel and tourism?
Before the ban, swimming with spinner dolphins was marketed as a signature experience, especially on the Big Island. Alongside manta ray dives and whale watches, dolphin swims were prominently featured in tour packages and travel videos. That changed overnight with NOAA’s 2021 rule.
Many tour operators shut down. Wille said the ban effectively ended her emotionally intensive dolphin-assisted therapy.
If the rule is overturned, such tours could return—at least temporarily. However, that could place Hawaii at odds with global tourism trends that increasingly reject close-contact wildlife experiences. Bans on elephant rides in Thailand, Orca shows in Europe, and swimming with whale sharks in parts of the Philippines reflect a worldwide shift toward ethical travel.
Hawaii’s enforcement dilemma.
The 2023 incident involving 33 swimmers harassing spinner dolphins off the Big Island was not isolated. Residents and returning visitors frequently express frustration over the perceived lack of enforcement of the 2021 federal rule prohibiting close interactions with these marine mammals.
While some tour operators, such as Hawaii Nautical, have adopted NOAA’s “Dolphin SMART” program—committing to maintain a respectful distance from dolphins—others continue practices that skirt legality.
Techniques like “leapfrogging,” where boats position themselves ahead of dolphin pods to facilitate close encounters for swimmers, remain prevalent, especially along Oahu’s Leeward Coast and the Kona Coast of the Big Island.
Enforcement actions have been sporadic. In 2017, a Big Island tour operator was fined for illegally harassing spinner dolphins. More recently, in 2021, three individuals were fined for pursuing dolphins off Mākua Beach on Oʻahu. However, the lack of consistent penalties contributes to a perception that violations often go unpunished, undermining the rule’s effectiveness.
The ongoing legal challenge to the 2021 rule further complicates enforcement efforts. If the court sides with the plaintiffs, it could invalidate the rule, potentially leading to a resurgence of close-contact dolphin tours and weakening broader marine wildlife protections.
This situation underscores the need for clear regulations, consistent enforcement, and public education to protect Hawaii’s spinner dolphins and the sustainability of its marine tourism industry.
Hawaii tourism is changing as travel meets responsibility.
The debate touches more than just legal nuance—it goes to the heart of how Hawaii wants to be seen in global tourism. The islands increasingly try to balance tourism with stewardship, promoting kuleana (responsibility) over simple consumption.
Dolphins, turtles, monk seals, and coral reefs all face pressure from over-tourism. The 50-yard dolphin rule has been viewed as part of a broader shift toward protecting marine life while educating visitors about what it means to experience Hawaii respectfully.
One reader shared: “We swam with dolphins during our honeymoon, which was magical. But now I know better. That magic came at their expense.”
What about the hotel dolphin programs?
This case doesn’t touch the captive dolphin programs operating at resorts like the Kahala Hotel. Those animals live in manmade lagoons and fall under different federal rules. But the contrast hasn’t gone unnoticed.
“We’re told not to swim with dolphins offshore, but you can pay $300 to do it in a hotel pool?” one reader wrote. “That makes no sense.”
The case could reignite scrutiny of captive programs, even if it doesn’t directly affect them.
Could this case change more than just dolphin rules?
It might. If the court sides with Wille and Denning, it could cast doubt on other wildlife protections passed under similar authority gaps. That includes rules tied to endangered species, marine sanctuaries, and more, potentially triggering a wave of new legal challenges.
If NOAA wins, the agency’s ability to move quickly on marine protections—even with later fixes—would be boosted.
However it plays out, the outcome could reshape how future rules are made regarding tourism, access, and conservation—in Hawaii, for sure, but also nationwide.
What’s next—and what Hawaii travelers can do.
The court’s decision is expected later this year. If the rule is thrown out, NOAA might have to start over or find other ways to protect the dolphins. If the rule stands, it’s likely here to stay, setting a precedent for how marine protections are written and enforced.
Either way, this isn’t just about dolphins. It’s about the kind of Hawaii experience we collectively want to preserve.
One thing is clear: rules only work if people know they exist. More signage, tour briefings, and short videos on incoming flights could help differentiate between respectful and questionable encounters.
And if you’re wondering what this means for your trip, stick with operators that don’t chase, crowd, or promise “swims.” Watch from a distance. Ask questions. Support the places doing it right.
Should dolphin swim tours come back? Or was the ban a long-overdue step? Let us know what you think—and what kind of Hawaii you want to see next.
Images courtesy NOAA.
Get Breaking Hawaii Travel News
The ban was poorly thought out and poorly implemented. I even left comments against it when it was being proposed. I have no problems limiting boats from pursuing dolphins, but swimmers? Give me a break.
A midpoint could be found, also. Like no organized tours before 2 PM, or no swimming in south Kealakekua Bay before noon, or something similar. The total ban wasn’t good, and I happy that I had my experiences before the eco-warriors got their way.
It never ceases to amaze me how selfish humans can be. Wille and Denning are examples of extreme selfishness at the expense of innocent and already impacted wildlife which they treat as a commodity. The existing law needs to be upheld because it is the right thing to do. Period.
Dolphins love to interact with people there are far more coves and bays that dolphins can swim to and rest along the coast where people cannot access. There is no way any person or group of people can harass a dolphin this is all made up. If a dolphin doesn’t want to be there they can move out at a very quick pace. This is nothing more than more government overreach and ridiculous rules that we see in Hawaii. On many occasions while freediving a pod of dolphins have shown up and interacted with me and when they want to leave they leave and there is nothing I can do to make them come back or to keep up with their fast paced swimming. I don’t agree with keeping dolphins in captivity I think that is absolutely cruel and the fact that it still exists is baffling and is completely contradictory to caring about dolphins. I would highly support getting rid of these ridiculous rules that were not based on any type of science. Dolphin tours and swimming with dolphins should be allowed.
I’ve seen the incident video footage several times, however, I don’t think harassment is the right word to use as I truly do not believe they intentionally tried to provoke the dolphins. I consider it exactly the same as people who hover around the honu when they come up on shore. A bunch of excited visitors who were never informed or lack the sense of awareness because they feel Hawai’i is like their Disneyland and do not embrace the spirit of the island when they come. Mandatory videos and information should be spoken about on planes and posted in airport lounges and be taken just as serious by officials as the agriculture form is. That is what the environmentalists should be fighting for, maybe it woud deter those visitors who are visiting for the wrong reasons.
These “animal prisons” in hotels (and all zoos in reality are animal prisons as well !) need to be outlawed and shut down forever. It is morally reprehensible to take, capture and imprison any animal, land or sea, and incarcerate them for human entertainment and money. Disgusting. Additionally they should not be harassed in their natural environment and I hope it all stops based on new updated Federal laws that supports wildlife and targets boaters, ocean swimmers, hotels, marine parks and zoos that just want to make “big bucks” off them.
I have been a boat captain on Maui for over 40 years. I have both observed what I believe as a positive dolphin interaction, and I have also observed what I believe is dolphin harassment. I realize that it is hard to separate them. It has been my observation that we do not swim with the dolphins the dolphins swim with us. If the dolphins do not want to remain in the area, you are in, they can easily leave. However, Boat harassment is another story, as mentioned in this article, leapfrogging can potentially harass or disturb their feeding and possibly their resting. Again, we cannot outswim a dolphin, even if you are an Olympic swimmer, however, good judgment needs to be in place, and I am not sure everyone has that. Boats should not cut off the path of dolphins and should not drive through a pod of resting dolphins. The law should also not penalize people when the dolphins approach a boat or then swimming. Harassment, with a vessel is another story.
If these operators lost income, maybe it’s time to evolve the business model. Ethical wildlife viewing is cleary the future. And what about enforcement? I see people chasing turtles and honu every time I’m on the Big Island. The rules only matter if they’re enforced which often just isn’t the case.
I’m confused why it’s okay to run a for-profit therapy program based on wild animal interaction in the first place. That should raise more eyebrows than it seems to be doing. This is just sad.
I support the ban, but I also think NOAA and the state need to do way better in terms of more visitor education. Most tourists don’t even know what the rules are until someone yells at them on the beach or they read this.
Honestly, this just sounds like a loophole lawsuit. If the science says leave them be, and that’s clearly the case, then why are we trying to backdoor our way into overturning it?
Let the dolphins rest. That’s the headline.
We did a dolphin swim years ago before the ban went into effect and it was unforgettable. But if it was hurting them, I’m glad we know better than to do that now. Tour companies should be helping, not chasing dolphins.
This isn’t about therapy or tourism. Please. It’s about leaving wild animals alone. We’ve messed with nature enough it seems.
I always wondered why you could pay to legally hug a dolphin in a hotel pool but not be near them offshore. This rule makes more sense now that I understand their sleep patterns.
I am so grateful that you are raising awareness about the harassment of the spinner dolphins. As the judge pointed out, the plaintiffs had no argument against the science that disturbing the dolphins is harmful to them. Many visitors just don’t know or don’t understand the harm, so education is essential. I like your idea of a video on flights (but it should not name specific places so as not to attract even more visitors to dolphin areas) and better signage.
The signs I have seen are small and only one place had an explanation with graphics. But, that one place was Honaunau Bay – the site of the incident. If they haven’t already, maybe locals (of which I hope to be one soon) could organize a volunteer effort at the common places to gently educate visitors, like at Keauhou. I would be happy to provide administrative support.
The problem with the ban is that dolphins are very social creatures…they seem to crave human interaction. Every time I go out in a boat, the dolphins swim up to it…we don’t go to them. I’ve had the same thing happen at 2 step…and I can’t swim faster than them to get away from them. This is where enforcing the law gets iffy. I do agree that surrounding them and chasing after them needs to be controlled…but I don’t know how you can enforce when the dolphin made the choice for the interaction.
Chris,
You are right that they are social – that is part of why we are all so captivated by them! But they still need their rest and all aren’t social all the time. That needs to be respected. Enforcement officials can easily tell who is actively pursuing the dolphins and who is not.
But it seems pursuing the pursuers is the difficulty. Easy to cite a boat, hard to id a swimmer in snorkel and swimsuit. Seems selfies from those getting GoPro shots really added to the swimmers from shore problem. Maybe no more of these?