Rule Banning Dolphin Interactions Meets Dubious Appeals Panel

A federal appeals court panel expressed skepticism Thursday that a federal regulation banning human interaction with spinner dolphins could pass constitutional muster.

A three-judge panel of the US Court of Appeals for the Fourth Circuit during oral arguments questioned whether an agency’s ultimate ratification of a rule that was drafted by the deputy assistant administrator, a career official, properly remedied the Appointments Clause issue in the case.

Judges Julius N. Richardson and Toby J. Heytens said a lower court’s acceptance of the former National Oceanic and Atmospheric Administration administrator’s ratification of the rule creates “bad incentives” for agencies to retroactively finalize regulations crafted by officials who weren’t congressionally authorized to issue them.

“If I was still an executive branch lawyer, I might just say hey get hit with an Appointments Clause challenge, just ratify, it’s fine, just make it go away,” Heytens said.

The government’s lawyer, Robert Parke Stockman of the Justice Department, argued that Samuel Rauch—the career official who developed the dolphin approach rule—"was doing exactly what he would have done if he had been the final decision maker in the first instance,” thus allowing the former political appointee Richard Spinrad to easily ratify.

The appellant, a psychotherapist who incorporated dolphin encounters in experimental treatments, is asking the court to block the rule under both the Appointments Clause and the Marine Mammals Mammal Protection Act.

Judge Pamela Harris questioned why the appellants didn’t bring up Loper Bright Enterprises v. Raimondo, the US Supreme Court opinion that scrapped decades of deference to agency interpretations of ambiguous laws and opened such regulatory action to judicial scrutiny.

Michael Poon of the Pacific Legal Foundation, who represented the appellant, said the case was about “who is regulating us, who has power over our lives.”

Agencies “don’t have that kind of power over you anymore,” Harris said. “Congress has that power.”

The case is Wille v. Pelter, 4th Cir., No. 24-01734, oral arguments 5/8/25.