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For several decades, boat tours, retreat groups and beachgoers have enjoyed swimming near Hawaii’s spinner dolphins. The animals reliably return each morning to the same shallow, sandy bays near shore to rest after spending their nights foraging for food in a dolphin ritual that’s unique to the islands, researchers say.

That up-close access might soon end, however, amid community outcry that the crowds in the water have grown too big in recent years and have overwhelmed the spinner pods, chronically disrupting their rest cycles and jeopardizing the population’s long-term survival.

The situation has gotten especially out of hand near Waianae, on Oahu’s Leeward Coast, and on Hawaii island’s Kona Coast, local residents say. The spinners in those areas encounter more tourism activities, including swimmers who get too close, than any other dolphin group in the world, according to researchers.

“Right now it’s a total circus, man. It’s Disneyland down there,” said Micah Doane, co-founder of the Leeward Coast nonprofit Protectors of Paradise, which promotes stewardship in that area.

On Sunday mornings, Farrington Highway near Makua Beach is a “madhouse,” Doane said. Roadsides are packed with tour guides and hundreds of swimmers scanning the bays for spinner pods coming to rest.

Often, federal marine officials and community groups say, tour operators practice what’s called “leapfrogging,” in which they maneuver their boats ahead of the dolphins and force the animals into close contact with swimming customers.

Federal law prohibits harassing dolphins or disrupting their behavior patterns, but Doane and others also say local enforcement is insufficient to protect the animals even when “the violations are clear as day.”

National Oceanic and Atmospheric Administration officials said that would make it easier for authorities to crack down on dolphin harassment under the Marine Mammal Protection Act.

Specifically, the rule would prohibit anyone from approaching within 50 yards of spinner dolphins by boat, kayak, swimming or any other means. It’s been about 16 years in the making, and NOAA said it could start this summer.

The federal agency’s officers on the Big Island already have stepped up enforcement by issuing citations for violations in popular dolphin spots such as Kealakekua, Honaunau and Makako Bay.

A 2013 study found that the local dolphin tours industry

A Religious Right?

There’s already been some pushback against NOAA’s proposed rule, not only from operators but also from local residents who regularly swim with Hawaii spinners.

Some of those Big Island swimmers argue that barring up-close dolphin encounters violates their religious rights under the U.S. Constitution because they consider their swims to be spiritual experiences.

“There’s spiritual issues at stake here,” said Lanny Sinkin, an attorney based near Hilo who said he’s been in contact with multiple swimmers who consider their regular dolphin swims a “high spiritual calling.”

Any changes to regulations need to be done in a way that doesn’t violate First Amendment rights for spiritual practice, he said. Local retreat centers sometimes offer dolphin swims to go with their workshops, or at least free time to swim with the animals.

Sinkin, who said he has swum with dolphins the past 20 years, said he may eventually represent some of the other individual swimmers in court if the community can’t reach a consensus.

But efforts to use religious grounds to justify swims that have been shown to harm spinners have incensed many Hawaiian families and community conservation groups. Recently, they came together to write to NOAA and stress that Hawaiian culture has never included any practice that involves touching, swimming or pursuing the naia, or dolphins.

In Hawaiian culture “we leave them alone,” Mahealani Pai, who’s in his mid-60s and whose family hails from North Kona, said of the spinner dolphins. “We don’t bother, because they have a purpose. We always respect them.”

Pai and others said they appreciate NOAA’s recent uptick in enforcement on the Big Island under Carruthers.

“I think that (for) a lot of communities that signed the letter it’s always been an ongoing struggle and they’ve tried to do their best” to report dolphin swim violations, said Malia Kipapa, a Kai Kuleana member. Until recently, “nothing’s been done about it.”

Sinkin, however, said the enforcement has gone too far, punishing swimmers who actually aim to respect the spinners’ boundaries. He said that while there may be some bad actors, many of the operators do observe the rules for dolphin encounters.

‘Mayhem’ On The Water

Even some operators, however, acknowledge that the industry has gotten “out of control” on Oahu and the Big Island, to the detriment of the spinners’ well-being.

“The dolphins are doing everything they can to get away and they can’t. It’s just sad,” said Doug Ewalt, president of the local tour company .

It’s one of just six local operators certified under NOAA’s program, which promotes responsible dolphin tourism.

A 2014 estimate from the National Marine Fisheries Service, meanwhile, found as many as 70 tour operators offering dolphin swims and encounters in Hawaii, plus 100 commercial boat and kayak tour operations that “may opportunistically view these animals.”

Ewalt and the five other operators agreed to the Dolphin SMART pledge to voluntarily maintain a distance of 50 yards from the dolphins and to not put their customers in the water up close to swim with the animals.

The “swim-with” tours are profitable, Ewalt said, so in recent years he’s seen more boats dropping more visitors in the water. Meanwhile, he sees fewer spinners than in previous years.

“I used to see schools of 400 (dolphins). I don’t see schools of 400 anymore,” Ewalt said, adding that “it’s mayhem” in the water when multiple tours converge on the same spot.

Near Waianae, it seems that competition is driving tour operators to put customers ever closer to dolphins, Doane said.

Hawaii Nautical loses business to the “swim-with” operators, but it still manages to make a profit keeping its customers at a safe distance from the animals, Ewalt said, adding that the company’s business model could succeed for others.

Possible Decline In Numbers

Researchers have expressed concerns about the long-term impacts of up-close swims on the species, which received its name because the dolphins are often seen leaping and spinning out of the water.

They’ve found that spinners off the Kona Coast are exposed to human tourism activities precisely when they’re supposed to be resting.

The near-constant exposure stresses and strains the animals, researchers say, similar to a chronically sleep-deprived person. Some researchers suspect that’s causing local spinner population to decline, although it hasn’t been proven conclusively.

What has been proven, however, is that dolphins in other parts of the world have had their numbers decline when overexposed to humans, according to director of the University of Hawaii’s Marine Mammal Research Program.

Hawaii’s spinners are more vulnerable to human interaction because their pattern of foraging in one place and resting in shallow, safe habitats along the coast is unique among dolphins, Bejder said.

Different population estimates recorded over the decades also hint at possible declines in numbers among local spinner groups. Researchers estimated in 2010 and 2011 that about 631 spinners were off the Kona Coast, while past estimates showed as many as 2,334 in previous decades.

Earlier estimates were done using different, less-robust research methods, however, so Bejder cautioned against comparing them directly to the latest population estimates. More research needs to be done.

Bejder added that dolphin tours can have educational value — if they’re done responsibly.

Exceptions For Passive Swimmers

The new NOAA rule could be issued as early as this summer, said Ann Garrett, a Hawaii-based NOAA assistant regional administrator for protected resources. Officially, the rule process started in 2016, but the effort to get the proposed restrictions actually started about 15 years ago, she said.

It would address the boats’ aggressive leapfrogging maneuvers while including exceptions for vessels and swimmers who aren’t trying to chase the spinners, or may even be trying to avoid them, Garrett added.

Sinkin said the dolphins occasionally approach and interact with swimmers. One of the swimmers cited by authorities recently claimed that the dolphin approached her and wanted to play — not the other way around, he said.

NOAA officials hope the exceptions would address that issue. The agency has said some dolphins may appear to want to interact with people but those are for the most part “possibly just curious juveniles .”

Hawaii County Councilwoman Maile Medeiros David said she’s drafting a resolution to support NOAA’s proposed rule.

“I think this is such a huge issue, an island-wise, state-wide issue,” David said.

“I hear urgency, I hear frustration” from the community, she added. “We need to put a little nudge on NOAA.”

Read the Kai Kuleana Network’s letter to NOAA enforcement here: