UPDATE: Since the release of this story, a new regulation that prohibits swimming with, approaching, or remaining within 50 yards of Hawaiian spinner dolphins was published on September 28, 2021.
Natural resources officers with the State of Hawaiʻi investigated dolphin tour operator Casey Phillips Cho for harassing Hawaiian spinner dolphins, which is illegal under the federal Marine Mammal Protection Act. Cho, the officers found, drove his boat in circles around a pod of spinner dolphins off the coast of Hawaiʻi Island. He also engaged in "leapfrogging," in which he purposefully and repeatedly intercepted a pod of dolphins and dropped passengers off in their path.
NOAA Fisheries and Hawaiʻi’s Department of Land and Natural Resources have discouraged these types of activities for years, alerting people to the risk of wildlife disturbance and law violation. Judge Christine Donelian Coughlin’s recent decision strengthens that message, by explicitly finding encircling and leapfrogging activities around spinner dolphins to be acts of harassment and therefore illegal under federal law.
“We’ve been saying for years that people need to be mindful of the way they conduct their activities near dolphins, and maintain a respectful distance so the dolphins can carry out their normal behaviors," says Ann Garrett, Assistant Regional Administrator for Protected Resources at the NOAA Fisheries Pacific Islands Regional Office. "The judge’s decision reinforces our message that the way you operate your tours can harass the dolphins.”
In recent years, some dolphin-directed excursions — especially those that engage in "swim-with" activities — have put increasing pressure and stress on Hawaiian spinner dolphins during their critical daytime resting period. Given the alarming number of people and boats that are within close proximity to dolphins daily, NOAA has been searching for the most effective way to protect the animals, allowing them to better rest nearshore during the day and prepare for a night of feeding offshore.
In efforts to clarify and reduce human activities that harass and disturb Hawaiian spinner dolphins, NOAA Fisheries published a proposed rule in 2016 that prohibits swimming-with and approaching a Hawaiian spinner dolphin within 50 yards. A final rule is expected to go into effect within the next year. [See UPDATE at the top of this story]
Resident Hawaiian spinner dolphins are popular tourist attractions, so much so that there are now more than 70 tour operators offering focused viewing and interactions with the animals throughout the islands.
And it's not hard to see why: Hawaiian spinner dolphins have a strict, cyclical daily pattern that makes them very easy to locate.
The dolphins spend their nights offshore in large groups feeding on fish, shrimp, and squid. In the morning, they return in smaller groups to select bays and nearshore areas to rest, socialize, and nurture their young.
Though the dolphins are known to perform aerial displays while entering or leaving their resting bays, they're significantly less active while in their nearshore habitat — but they don't stop moving. Like other dolphins, Hawaiian spinner dolphins voluntarily control their breathing, including when they sleep. To manage this activity, they only sleep with one-half of their brain at a time while the other half stays at a low level of alertness, looking out for predators, obstacles, and other animals as they swim back and forth.
When disturbed, such as by an approaching swimmer, kayak, or boat, a dolphin will wake up to assess the potential threat and respond appropriately, losing important rest time. And such disturbances are becoming increasingly more common.
For instance, recent research shows that spinner dolphins in four resting bays around Hawaiʻi Island are exposed to human activities within 100 meters over 80 percent of the time. What's more, in the dolphins' daytime habitat, researchers have documented up to 13 tour boats and up to 60 snorkelers in the water at a time trying to view or interact with the resting dolphins.
These activities are noticeably changing the dolphins' behaviors.
"What we're finding is that these animals actually start resting later in the day and end earlier," says Laura McCue, a fishery biologist with the NOAA Fisheries Office of Protected Resources who has extensive experience with Hawaiian spinner dolphins. "It's one of the most important behaviors for their health and survival, so when that's impacted, it has effects on their behavior and health."
Aside from changing their daily schedule, dolphins sometimes swim faster or increase their aerial behaviors when swimmers and kayakers are near, and swim or leap away from people to avoid interactions. But disturbance reactions aren't always so conspicuous: the dolphins can also experience elevated heart rates and increased stress and vigilance. And these disturbances from people, occurring multiple times a day, use up the dolphins' time and energy, which they'd otherwise devote to resting, nurturing young, or socializing with other dolphins.
Pods sometimes take more extreme measures to avoid being harassed while they rest. Researchers have noticed groups of spinner dolphins decreasing their aerial behaviors while entering or leaving certain bays — possibly to "hide" their presence from people. The dolphins also sometimes refrain from entering bays crowded with people, use secondary (non-preferred) resting areas, or temporarily exit their protective bays until tour boats leave or when being followed by swimmers.
In other dolphin populations, intense human interactions have caused long-term impacts, such as prolonged habitat abandonment and reduced reproductive success (fewer calves surviving past weaning age).
Enforcing the Law
Importantly, Hawaiian spinner dolphins are protected under the Marine Mammal Protection Act, or MMPA, which prohibits "take" — any attempt to harass, hunt, capture, or kill a marine mammal. Harassment includes any act of pursuit, torment, or annoyance that could injure the animals or disrupt their behavioral patterns.
The NOAA Fisheries Office of Law Enforcement (OLE), along with the U.S. Coast Guard and Hawaiʻi's Division of Conservation and Resources Enforcement (DOCARE), investigate possible violations of the MMPA in the waters around Hawaiʻi.
In October 2014, DOCARE Officer James Ridzon, while attending to a matter on the shore of Kauna'oa Point on Hawaiʻi Island, saw a tour boat making circles around a pod of dolphins, some of which were jumping and spinning in the large wakes created by the boat.
Tour operator Cho, who's the captain and owner of Adventure X Boat Tours, later admitted to Officer Ridzon that he was "doing donuts like I normally do." Though Ridzon told Cho that he was possibly violating the MMPA, Cho believed he had done nothing wrong.
Ridzon and other law enforcement officers with OLE and DOCARE investigated the incident and found that Cho also engaged in interception or "leapfrogging." Here, tour operators offload passengers in the water in front of the path of dolphins so that the pod swims past them. Once the dolphins pass, the operators may pick up their swimmers and drop them off in front of the dolphins repeatedly, as Cho did in this case.
Both of Cho's activities — encircling and leapfrogging — are problematic, says McCue, who testified as an expert witness when the case against Cho eventually came to court.
For one, encircling the dolphins disrupts their natural behavioral patterns by causing them to engage in atypical aerial displays and breaching during a time when the dolphins normally rest.
"They should be recuperating from a really energetically costly night of hunting and feeding, so this activity is not really good for the animals," McCue says, adding that encircling the dolphins has the potential to trap them and cut them off from the rest of the pod. "It's also not good to keep the animals from going where they want to go or doing what they want to do."
Similarly, she says, placing swimmers in the path of the dolphins can disturb the marine mammals by forcing them to dive and change their swimming direction to avoid people.
Judge Coughlin found that Cho's encircling of the dolphins was an act of annoyance and his leapfrogging was an act of pursuit, under the definition of harassment in the MMPA. She therefore ordered Cho and Adventure X Boat Tours to pay the fines for these violations.
Viewing Dolphins Responsibly
The number of people on the water in tour boats or swimming to get up close with a spinner dolphin has been growing over the past decade.
"Through social media and calls to our hotline, we have been receiving a growing number of complaints from the public about how spinner dolphins are being treated," Garrett says. "Because spinner dolphin harassment is an increasing problem in Hawaiʻi's waters, we published a proposed rule to prohibit approaching and swimming with dolphins within 50 yards. This case underscores the need for added protections for Hawaiian spinner dolphins.”
NOAA Fisheries published the proposed rule in August 2016 after years of research, reviews, and discussions with interested parties and the public. Of course, there are situations where being close to spinner dolphins may be unavoidable, and the proposed rule takes such situations into consideration. For example, you may be exempt from the rule if a spinner dolphin approaches you, though you must make no attempt to engage it and should instead try to move away from it. And boat operators may be exempt under similar circumstances.
The agency expects to publish a final rule in the upcoming year. [See UPDATE at the top of this story]
New regulations aside, it's important to remember that not all people, boaters, or tour operators engage in activities that could potentially harass Hawaiian spinner dolphins. Some operators voluntarily adhere to responsible viewing guidelines — including staying at least 50 yards away from dolphins — set forth by NOAA's Dolphin SMART Program.
"Dolphin SMART is a unique, voluntary recognition and education program that we offer to commercial dolphin viewing businesses,” Garrett says. Dolphin SMART businesses voluntarily follow the program criteria and educate their customers about the importance of responsible viewing of wild dolphins in Hawaiian waters. "You can tell if a business is recognized by the Dolphin SMART program because they will display the current year Dolphin SMART flag and sticker on their vessels, and their websites will list them as Dolphin SMART Recognized Operators."
Current Dolphin SMART businesses are listed on the Dolphin SMART program website. If you want to learn more about Dolphin SMART, message firstname.lastname@example.org.