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Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 1 of 23
`
`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
`
`ELIZA WILLE
`75-5595 Mamalahoa Highway
`Holualoa, HI 96725
`
`No. 8:22-cv-689
`
`COMPLAINT
`
`SHELLEY CAREY
`PO Box 1359
`Kailua-Kona, HI 96745
`
`LISA DENNING,
`PO Box 1041
`Kealakekua, HI 96750
`
`Plaintiffs,
`
` v.
`GINA RAIMONDO, in her official capacity as
`Secretary of Commerce
`1401 Constitution Ave., N.W.
`Washington, DC 20230
`
`NATIONAL MARINE FISHERIES SERVICE
`1315 East-West Highway, 14th Floor
`Silver Spring, MD 20910
`Maryland County: Montgomery
`
`RICHARD SPINRAD, in his official capacity
`as Administrator of the National Oceanic and
`Atmospheric Administration
`1401 Constitution Ave., N.W., Room 5128
`Washington, DC 20230
`
`JANET COIT, in her official capacity as
`Assistant Administrator for Fisheries
`1315 East-West Highway, 14th Floor
`Silver Spring, MD 20910
`Maryland County: Montgomery
`
`Defendants.
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 2 of 23
`
`INTRODUCTION
`
`1.
`
`The natural resources of Hawaii are renowned for their beauty,
`
`diversity, and accessibility. Their presence is so central to Hawaii’s identity and
`
`economy that the state constitution forbids not making reasonable use of these
`
`resources. See Kauai Springs, Inc. v. Planning Comm’n of Cnty. of Kauai, 133 Haw.
`
`141, 172 (2014); In re Water Use Permit Applications, 94 Haw. 97, 141 (2000).
`
`2.
`
`Among Hawaii’s popular attractions are spinner dolphins, a playful,
`
`social animal that often seeks out human encounters in nearshore waters. In turn, a
`
`productive industry of boat captains and dolphin guides has sprung up to introduce
`
`locals and tourists alike to the experience of being approached by and swimming with
`
`these gregarious marine mammals. These dolphins have also played a key part in
`
`some psychotherapy practices, which have found that dolphin-based experiential
`
`therapy can have a profound impact on those struggling with mental illness.
`
`3.
`
`Last September, however, this fruitful and mutually beneficial
`
`relationship between humans and dolphins was destroyed.
`
`4.
`
`The cause is a rule adopted by the Deputy Assistant Administrator for
`
`Regulatory Programs (“DAARP”), an employee at Defendant National Marine
`
`Fisheries Service (“NMFS”). See Swim With and Approach Regulation for Hawaiian
`
`Spinner Dolphins Under the Marine Mammal Protection Act, 86 Fed. Reg. 53,818
`
`(Sept. 28, 2021) (“Rule”). Effective October 2021, the Rule permanently banned
`
`swimming with or approaching Hawaiian spinner dolphins—not because spinner
`
`dolphins are in decline, or because there are any confirmed negative impacts of
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 3 of 23
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`swimming with them. Rather, the DAARP concluded that allowing people and
`
`dolphins to swim with each other may lead dolphins to expend energy that they really
`
`ought to spend caring for their young and eating their food—a state of affairs that the
`
`employee decided was illegal “harassment” of the dolphins. Id. at 53,819.
`
`5.
`
`Plaintiffs are among the boat captains, guides, and mental health
`
`professionals whose professional lives and personal finances have been upended by
`
`the Rule. Plaintiffs challenge the Rule as a violation of the Appointments Clause.
`
`Under that structural provision of the Constitution, officials who possess significant
`
`federal power, including rulemaking power, must be appointed as “Officers of the
`
`United States.” Buckley v. Valeo, 424 U.S. 1, 140–41 (1976) (per curiam). Officers
`
`must be appointed by the President with the advice and consent of the Senate, except
`
`that Congress may by law vest the appointment of “inferior” officers in the President
`
`alone, the courts of law, or the heads of departments. U.S. Const. art. II, § 2, cl. 2.
`
`These limitations make the President responsible for the selection and oversight of
`
`executive officials with significant power, and the American people can then hold him
`
`responsible for poor appointments.
`
`6.
`
`The DAAARP, Samuel Rauch, is a career civil servant. As a career
`
`employee, Mr. Rauch was not appointed pursuant to the Appointments Clause. Yet
`
`he holds vast rulemaking power as the official at NMFS in charge of regulations and
`
`policymaking. As a result, Mr. Rauch holds his post unconstitutionally and lacked
`
`the power to adopt the Rule. The Rule must therefore be vacated.
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 4 of 23
`
`7.
`
`Plaintiffs also challenge the agency actions by which Mr. Rauch came to
`
`possess his authority over Plaintiffs. Mr. Rauch’s rulemaking power was not vested
`
`in his post by statute but by a chain of departmental delegations of authority. But
`
`because the Appointments Clause does not permit non-officers to be vested with
`
`rulemaking authority over Plaintiffs and other individuals, the delegations are
`
`unconstitutional and must be vacated.
`
`JURISDICTION AND VENUE
`
`8.
`
`The Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331
`
`(federal question jurisdiction); id. § 2201 (authorizing declaratory relief); id. § 2202
`
`(authorizing injunctive relief); and 5 U.S.C. §§ 701–06 (judicial review provisions of
`
`the Administrative Procedure Act).
`
`9.
`
`Venue in the District of Maryland is proper because the offices of the
`
`Defendants are located within the district, and a substantial part of the acts or
`
`omissions giving rise to this action occurred within the district. 28 U.S.C. § 1391(e).
`
`PARTIES
`
`Plaintiffs
`
`10.
`
`Eliza Wille, Shelley Carey, and Lisa Denning are Hawaii residents and
`
`participants in commercial or professional activities directed toward Hawaiian
`
`spinner dolphins.
`
`11.
`
`Eliza Wille is a psychotherapist, with a master’s degree in psychology
`
`from the London School of Economics and a bachelor’s degree in psychology from the
`
`University of Hawaii. Her career has included eight years participating in cognition
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 5 of 23
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`research on dolphins. Most recently, Eliza conducted her psychotherapy practice at
`
`Hawaii Island Recovery, a small residential treatment center on Kona Island that
`
`focuses on substance abuse, addiction, and related mental disorders. Eliza’s practice
`
`focuses on experiential therapy, rather than talk therapy. Experiential therapy
`
`places clients in unfamiliar situations that surface strong emotions, which the
`
`therapist and client then discuss and process together. This form of therapy—which
`
`includes art, nature, and equine therapy—is especially helpful for those who have
`
`difficulty surfacing or grasping their emotions by themselves in a traditional talk-
`
`therapy setting. Eliza started employing dolphin encounters in her experiential
`
`therapy 10 years ago. In her experience, dolphin encounters have been a powerful
`
`part of her practice, creating turning points for many patients’ mental health
`
`journeys. The encounter can bring to the surface anxiety and feelings of being
`
`overwhelmed and losing control in Eliza’s patients, which she can then help them
`
`process and overcome. In learning to manage these emotions in the context of a
`
`dolphin encounter, Eliza’s patients also learn to manage their emotions in everyday
`
`contexts. The Rule prevents Eliza from offering this key part of her psychotherapy
`
`practice. Shortly after the Rule went into effect, Eliza was furloughed by Hawaii
`
`Island Recovery, as the clinic continued to grapple with the COVID-19 pandemic.
`
`Eliza continues to work toward other opportunities to conduct her practice, including
`
`building a private practice. But so long as the Rule stands, Eliza will be unable to
`
`offer dolphin encounters as part of her practice, whether at Hawaii Island Recovery
`
`or in private practice.
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 6 of 23
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`12.
`
`Shelley Carey is the owner of Merrill Inc. d/b/a Dolphin Discoveries and
`
`a boat captain in Hawaii. Dolphin Discoveries has been offering dolphin swims and
`
`other marine experiences since 1999; Shelley purchased the company in 2019. After
`
`the Rule went into effect, Dolphin Discoveries stopped offering dolphin swims. As a
`
`result, the company’s revenue dropped by one-third, even after the company pivoted
`
`to providing dolphin watches from a distance. In addition, by banning a popular
`
`aquatic activity, the Rule reduces the value of Shelley’s transferrable boating permit.
`
`Shelley, on behalf of an industry association, submitted comments opposing the Rule
`
`by email to the Regional Administrator for NMFS’s Pacific Islands Regional Office in
`
`August 2021.
`
`13.
`
`Lisa Denning is a marine mammal naturalist who has worked with
`
`dolphins in multiple capacities. Lisa was a dolphin guide in Hawaii; she would lead
`
`her own clients out to spinner dolphins on chartered boats and show her clients how
`
`to interact with the dolphins respectfully. She also contracted her services to vessels
`
`with their own clients. Lisa is also an ocean photographer and videographer; her work
`
`with dolphins and whales supplemented her income. Since the Rule went into effect,
`
`Lisa’s income has fallen by approximately 90%. In addition to her guide and camera
`
`work, Lisa co-founded the Light ON Foundation, which she runs in partnership with
`
`a licensed trauma therapist. The Light ON Foundation is a donor-funded nonprofit
`
`that provided survivors of sexual assault and domestic violence with free dolphin-
`
`centered experiential psychotherapy, as well as other types of therapy. The Light ON
`
`Foundation continues to operate, but the Rule has prevented the nonprofit and Lisa
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 7 of 23
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`from offering their primary mode of therapy. Lisa submitted comments opposing the
`
`Rule by email to the Regional Administrator for NMFS’s Pacific Islands Regional
`
`Office in August 2021.
`
`14.
`
`Each Plaintiff had always interacted with dolphins respectfully and
`
`taught their clients to do the same. Plaintiffs and their clients would take a vessel
`
`out onto the water in the early morning and maneuver alongside a pod of dolphins. If
`
`the dolphins were already inactive or resting, Plaintiffs and their clients would
`
`simply watch from the vessel. If the dolphins were active, Plaintiffs and their clients
`
`would gently enter the water, and wait for the dolphins to approach.
`
`15.
`
`Eliza and Lisa would then allow their clients to swim amongst the
`
`dolphins in a slow, relaxed manner, with their arms at their sides or behind their
`
`backs. They did not reach out to the dolphins with their hands or chase them. During
`
`Eliza’s sessions, she would also help her clients process and manage their emotions
`
`while they interacted with the dolphins. Eliza and Lisa and their clients were always
`
`out of the water by mid- to late-morning, to give the dolphins time to rest.
`
`16.
`
`Shelley and his clients were even more limited in their interactions with
`
`the dolphins. His clients were taught simply to let the dolphins swim by them, and
`
`they were out of the water by 10 a.m.
`
`17.
`
`None of the Plaintiffs have been cited for harming or harassing dolphins
`
`or other wildlife.
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 8 of 23
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`Defendants
`
`18.
`
`Gina Raimondo is the Secretary of Commerce and the official charged
`
`by law with administering the relevant portions of the Marine Mammal Protection
`
`Act, 16 U.S.C. §§ 1361 et seq. (“Act”). She is sued in her official capacity only.
`
`19.
`
`The National Marine Fisheries Service is an agency within the National
`
`Oceanic and Atmospheric Administration (“NOAA”). NOAA is an agency within the
`
`Department of Commerce.
`
`20.
`
`Richard Spinrad is the Administrator of NOAA. He is sued in his official
`
`capacity only. The Secretary of Commerce has delegated to the NOAA Administrator
`
`the authority to administer the relevant portions of the Act.
`
`21.
`
`Janet Coit is the Assistant Administrator for Fisheries and the head of
`
`the National Marine Fisheries Service. She is sued in her official capacity only. Ms.
`
`Coit was appointed to her position on June 21, 2021. The NOAA Administrator has
`
`sub-delegated his authority under the Act to the Assistant Administrator for
`
`Fisheries. The Assistant Administrator has further sub-delegated rulemaking
`
`authority under the Act to NMFS’s Deputy Assistant Administrator for Regulatory
`
`Programs.
`
`LEGAL BACKGROUND
`
`The Marine Mammal Protection Act
`
`22.
`
`Congress passed the Marine Mammal Protection Act because “marine
`
`mammals have proven themselves to be resources of great international significance,
`
`esthetic and recreational as well as economic.” 16 U.S.C. § 1361(6). To protect these
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 9 of 23
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`values, marine mammals are to be regulated pursuant to “sound policies of resource
`
`management.” Id. In particular, marine mammals that are “in danger of extinction
`
`or depletion” should not be allowed to “diminish” beyond their “optimum sustainable
`
`population” or “the point at which they cease to be a significant functioning element
`
`in the ecosystem.” § 1361(1)–(2).
`
`23.
`
`In furtherance of these goals, the Act creates a “moratorium on the
`
`taking and importation of marine mammals and marine mammal products,”
`
`§ 1371(a), but empowers the Secretaries of Commerce and Interior to make
`
`exceptions to the moratorium, § 1371(a)(1)–(3), (5).
`
`24.
`
`“Take” is defined to include actions “to harass . . . or attempt to harass
`
`. . . any marine mammal.” § 1362(13). And “harassment” is defined to “mean[] any act
`
`of pursuit, torment, or annoyance which—(i) has the potential to injure a marine
`
`mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a
`
`marine mammal or marine mammal stock in the wild by causing disruption of
`
`behavioral patterns[.]” § 1362(18)(A).
`
`25.
`
`Regulations further define “take” to include “the doing of any . . .
`
`negligent or intentional act which results in disturbing or molesting a marine
`
`mammal.” 50 C.F.R. § 216.3.
`
`26.
`
`The Act empowers the Secretaries of Commerce and Interior to issue
`
`regulations that are “necessary and appropriate to carry out the purposes of” the Act.
`
`16 U.S.C. § 1382(a).
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 10 of 23
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`27.
`
`The Act splits responsibilities for its administration between the
`
`Secretaries of Commerce and Interior. § 1362(12). The Secretary of Commerce
`
`(“Secretary”) is responsible for duties under the Act relating to spinner dolphins and
`
`other cetaceans. Id.
`
`The Delegations of Authority and the
`Deputy Assistant Administrator for Regulatory Programs
`
`The Secretary of Commerce has delegated her powers under the Act to
`
`28.
`
`the NOAA Administrator. In turn, the NOAA Administrator has sub-delegated those
`
`powers to the NMFS Assistant Administrator.
`
`29.
`
`The NMFS Assistant Administrator has further sub-delegated her
`
`rulemaking powers under the Act to the NMFS Deputy Assistant Administrator for
`
`Regulatory Programs. The DAARP may exercise these rulemaking powers without
`
`the concurrence of the Assistant Administrator or other more senior officials.
`
`30.
`
`The DAARP is one of three senior positions within NMFS that report to
`
`the Assistant Administrator.
`
`31.
`
`The DAARP manages policy and regulations within NMFS. As part of
`
`this work, he oversees NMFS’s Office of Protected Resources, which assists the
`
`DAARP in administering his responsibilities under the Act. The DAARP also oversees
`
`NMFS’s Office of Sustainable Fisheries, Office of Habitat Conservation, and NMFS’s
`
`various regional offices.
`
`32.
`
`The other senior positions are the Deputy Assistant Administrator for
`
`Operations, who manages NMFS’s budget and enforcement efforts, and the Director
`
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`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 11 of 23
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`of Scientific Programs and Chief Science Advisor, who manages NMFS’s scientific
`
`work.
`
`33.
`
`The current DAARP is Samuel Rauch. He has held the position since
`
`2006. Mr. Rauch is a career member of the Senior Executive Service. On information
`
`and belief, he was not appointed by the President, a court of law, or a head of
`
`department. Rather, as a career civil servant, he was hired as an employee through
`
`a civil-service staffing process, and he enjoys civil-service protections.
`
`34.
`
`Mr. Rauch approved the final rule for publication in the Federal
`
`Register.
`
`The Appointments Clause
`
`35.
`
`The Appointments Clause of the United States Constitution provides
`
`that the President “shall nominate, and by and with the Advice and Consent of the
`
`Senate, shall appoint” all “Officers of the United States.” U.S. Const. art. II, § 2, cl. 2.
`
`This requirement applies to both noninferior (also called principal or superior)
`
`officers and inferior officers, except that “Congress may by Law vest the Appointment
`
`of such inferior Officers, as they think proper, in the President alone, in the Courts
`
`of Law, or in the Heads of Departments.” Id.
`
`36.
`
`“[A]ny appointee exercising significant authority pursuant to the laws
`
`of the United States is an ‘Officer of the United States,’ and must, therefore, be
`
`appointed in the manner prescribed by” the Appointments Clause. Buckley, 424 U.S.
`
`at 126.
`
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`
`37.
`
`The Appointments Clause is not limited to officials with authority to
`
`“enter a final decision” on behalf of the United States; it applies to any official who
`
`“exercise[s] significant discretion” in “carrying out . . . important functions.” Freytag
`
`v. Comm’r, 501 U.S. 868, 881–82 (1991).
`
`38.
`
`Rulemaking is a significant authority which may be exercised only by
`
`an officer. Buckley, 424 U.S. at 140–41.
`
`39.
`
`A person exercising officer powers may be appointed as an inferior
`
`officer only if his “work is directed and supervised at some level by others who were
`
`appointed by presidential nomination with the advice and consent of the Senate.”
`
`Edmond v. United States, 520 U.S. 651, 663 (1997). It is necessary but “not enough
`
`that other officers may be identified who formally maintain a higher rank, or possess
`
`responsibilities of a greater magnitude.” Id. at 662–63. The key question, rather, is
`
`“how much power an officer exercises free from control by a superior.” United States
`
`v. Arthrex, Inc., 141 S. Ct. 1970, 1982 (2021).
`
`40.
`
`Three factors that bear on whether an official wielding officer powers
`
`may be appointed as an inferior officer are: (1) whether the officer is subject to
`
`oversight in the conduct of his duties; (2) whether the officer is subject to removal
`
`without cause; and (3) whether the officer has “no power to render a final decision on
`
`behalf of the United States unless permitted to do so by other Executive officers.”
`
`Edmond, 520 U.S. at 664–65.
`
`41.
`
`However, if an officer has “the power to render a final decision on behalf
`
`of the United States without any . . . review by [a] principal officer in the Executive
`
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`Branch,” then the officer necessarily must be appointed as a principal officer. Arthrex,
`
`141 S. Ct. at 1981 (cleaned up).
`
`42.
`
`The practical result of the Appointments Clause is that officers with
`
`more discretion must be appointed by nomination and confirmation, while closely
`
`supervised officers with less discretion may be appointed with less scrutiny (if allowed
`
`by Congress). Only non-officers—those who lack any significant federal authority—
`
`may be selected by other means.
`
`FACTUAL ALLEGATIONS
`
`Hawaiian Spinner Dolphins
`
`43.
`
`Hawaiian spinner dolphins are relatively small, social dolphins named
`
`for their acrobatic aerial displays. The dolphins are not “in danger of extinction or
`
`depletion.” § 1362(1). To the contrary, “[s]pinner dolphins are common and abundant
`
`throughout the entire Hawaiian Archipelago[.]” National Marine Fisheries Service,
`
`Final Environmental Impact Statement and Regulatory Impact Review 82 (June
`
`2021).1
`
`44.
`
`Spinner dolphins typically hunt in the open ocean at night and return
`
`to the Hawaiian Islands to socialize. Id. at 85. These daytime activities tend to take
`
`place in shallow, nearshore waters, where the dolphins can socialize with each other
`
`and with humans, while remaining safe from predators. Id. “Upon arrival [to
`
`
`1 https://media.fisheries.noaa.gov/2021-07/enhancing-protections-for-hawaiian-
`spinner-dolphins-feis-508.pdf.
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`nearshore waters], the dolphins exhibit a high degree of social interactions[.]” Id. at
`
`86.
`
`45.
`
`After the social time ends, the dolphins spend “four to five hours” resting
`
`before returning to open waters to forage again. Id. In Oahu, for example, the
`
`dolphins’ rest hours take place from “midday to late afternoon.” Id.
`
`The Rule
`
`46.
`
`In August 2016, Mr. Rauch issued a notice of proposed rulemaking.
`
`Protective Regulations for Hawaiian Spinner Dolphins Under the Marine Mammal
`
`Protection Act, 81 Fed. Reg. 57,854 (Aug. 24, 2016). The comment period closed in
`
`December 2016. Swim With and Approach Regulation for Hawaiian Spinner
`
`Dolphins Under the Marine Mammal Protection Act, 86 Fed. Reg. 53,818, 53,822
`
`(Sept. 28, 2021).
`
`47.
`
`On September 28, 2021, Mr. Rauch published the corresponding final
`
`rule in the Federal Register. Id. at 53,818. The Rule prohibits “swimming with and
`
`approaching a Hawaiian spinner dolphin within 50 yards.” Id.
`
`48.
`
`The Rule was motivated by concern that, when dolphins socialize with
`
`humans, the animals use energy that they ought to spend foraging or nurturing their
`
`young instead. Id. at 53,819.
`
`49.
`
`For example, when dolphins socialize with humans, they more
`
`frequently engage in “aerial displays” (such as the leaping and spinning for which
`
`spinner dolphins are named), “tail-slapping, [and] other visible behaviors.” Id. The
`
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`dolphins may also expend energy in swimming away from humans when they are not
`
`interested in socializing. Id.
`
`50.
`
`Because these energy expenditures “can reduce the amount of energy
`
`available to forage and care for young,” they “could potentially cause negative
`
`population-wide impacts.” Id. Through this speculative chain of “can” and “could”
`
`statements, Mr. Rauch concluded that permitting dolphins to socialize with humans
`
`“may result in ‘take.’” Id. at 53,820.
`
`51.
`
`The Rule thus seeks to protect dolphins from their own desire to socialize
`
`with humans. To that end, the Rule not only forbids swimmers themselves from
`
`approaching spinner dolphins; it also requires swimmers who are “approached by a
`
`spinner dolphin” to “take[] immediate steps to move away from the animal.” Id. at
`
`53,841 (emphasis added).
`
`52.
`
`Mr. Rauch justifies the regulation as necessary to stop the “pursuit,
`
`torment, or annoyance” of spinner dolphins “which . . . has the potential to . . . caus[e]
`
`disruption of behavioral patterns.” 86 Fed. Reg. at 53,821, 53,823. Nevertheless, he
`
`admits that “there is not clear evidence of population decline or adverse biological
`
`impacts.” Id. at 53,824.
`
`DECLARATORY AND INJUNCTIVE RELIEF ALLEGATIONS
`
`53.
`
`Each Plaintiff has a significant interest in whether the Rule was
`
`lawfully promulgated. Eliza is unable to help her psychotherapy patients to her
`
`fullest ability. The incomes of Shelley’s company and Lisa’s business have been
`
`substantially reduced. And Lisa’s trauma-survivor nonprofit is no longer able to offer
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`dolphin encounters to its participants. Further, the Rule has reduced the value of
`
`Shelley’s boating permit.
`
`54.
`
`The Rule thus visits significant financial and professional hardship on
`
`Plaintiffs.
`
`55.
`
`A decision declaring the Rule to be inconsistent with the Appointments
`
`Clause would remedy these injuries by restoring Plaintiffs’ ability to resume their
`
`dolphin-related work, and by preserving the value of Plaintiffs’ assets.
`
`56.
`
`Each Plaintiff also has a significant interest in whether rulemaking
`
`power was lawfully delegated to the Deputy Assistant Administrator for Regulatory
`
`Programs and to the Assistant Administrator. The Rule was promulgated pursuant
`
`to those delegated powers, and the DAARP continues to exercise rulemaking powers
`
`over Plaintiffs. Being subject to the power of an unconstitutionally serving official
`
`inflicts a present injury on Plaintiffs. Furthermore, at least one regulation that was
`
`proposed by the DAARP and that will injure Plaintiffs is currently pending. See
`
`Establishment of Time-Area Closures for Hawaiian Spinner Dolphins Under the
`
`Marine Mammal Protection Act, 86 Fed. Reg. 53,844 (Sept. 28, 2021) (notice of
`
`proposed rulemaking issued by Mr. Rauch).
`
`57.
`
`Plaintiffs have no plain, speedy, and adequate remedy at law for their
`
`injuries. Money damages in this case are not available.
`
`58.
`
`This case is currently justiciable because the Rule went into effect on
`
`October 28, 2021, 86 Fed. Reg. at 53,818, and the delegations empowering the DAARP
`
`and the Assistant Administrator continue to be in effect.
`
` 15
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 17 of 23
`
`59.
`
`Therefore, declaratory and injunctive relief are appropriate to resolve
`
`this controversy.
`
`FIRST CLAIM FOR RELIEF
`
`Adoption of a Final Rule by a Person Not Appointed as an Officer
`(U.S. Const. art. II, § 2, cl. 2; 5 U.S.C. § 706(2)(B))
`The preceding paragraphs are incorporated herein by reference.
`
`60.
`
`61.
`
`The Administrative Procedure Act subjects to judicial review final
`
`agency actions that are contrary to the Constitution. 5 U.S.C. §§ 704, 706. The
`
`issuance of a final rule is a final agency action.
`
`62.
`
`As the DAARP, Mr. Rauch wields power reserved for officers of the
`
`United States because he exercises significant powers pursuant to the laws of the
`
`United States, including but not limited to rulemaking powers. Agency delegations
`
`empower him to “sign[] . . . material for publication in the Federal Register and the
`
`Code of Federal Regulations.” National Oceanic & Atmospheric Administration, U.S.
`
`Department of Commerce, NOAA Organizational Handbook: Transmittal No. 61, at
`
`PDF 5 (2015), https://bit.ly/3k9XRlj.
`
`63.
`
`Yet, Mr. Rauch was hired as a career civil servant, not an accountable
`
`officer appointed pursuant to the Appointments Clause. He therefore served and
`
`continues to serve in contravention of the Appointments Clause, and his adoption of
`
`the final rule was contrary to the Constitution.
`
` 16
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 18 of 23
`
`Unlawful Principal Officer
`
`64.
`
`The DAARP must be appointed as a principal officer because he is not
`
`effectively supervised by anyone who is appointed by the President with the advice
`
`and consent of the Senate.
`
`65.
`
`First, as a career member of the Senior Executive Service, the DAARP
`
`may not be removed from the Senior Executive Service except for cause, 5 U.S.C.
`
`§§ 7541–43, and in certain circumstances he cannot be reassigned within the Senior
`
`Executive Service without his consent, 5 C.F.R. § 317.901. Second, because the
`
`DAARP has the delegated authority to issue rules, he is empowered to make “final
`
`decision[s] on behalf of the United States.” Edmond, 520 U.S. at 665. The DAARP’s
`
`approval of a rule does not require the concurrence of another official. Compare
`
`National Oceanic & Atmospheric Administration, U.S. Department of Commerce,
`
`NOAA Organizational Handbook: Transmittal No. 61, at PDF 5 (2015) (delegation of
`
`rulemaking power to DAARP), https://bit.ly/3k9XRlj, with id. at PDF 8 (requiring the
`
`Assistant Administrator be advised before action is taken on certain delegated
`
`responsibilities). Third, the DAARP is overseen, if at all, by the Assistant
`
`Administrator, who is not a Senate-confirmed appointee. The DAARP therefore must
`
`be appointed as a principal officer.
`
`66.
`
`Additionally, since the DAARP is empowered to issue regulations
`
`without the concurrence of other officials, he can commit the federal government to a
`
`final regulatory action, which cannot be reversed without a new regulatory action.
`
`For that separate reason, he must be appointed as a principal officer.
`
` 17
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 19 of 23
`
`67.
`
`Despite the DAARP’s discretion and independence, he is not nominated
`
`by the President and confirmed by the Senate. He therefore exercises his powers
`
`unconstitutionally.
`
`Unlawful Inferior Officer
`
`68.
`
`Even if the DAARP need only be appointed as an inferior officer, such
`
`appointment has not taken place, and he therefore exercises his powers
`
`unconstitutionally.
`
`69.
`
`The default appointment procedure for inferior officers is presidential
`
`appointment with Senate confirmation. Edmond, 520 U.S. at 660.
`
`70.
`
`The Constitution permits Congress to loosen this requirement within
`
`strict limits: Congress may only vest the appointment of inferior officers in the
`
`President, the courts of law, or the heads of departments; and Congress must do so
`
`“by law.” U.S. Const. art. II, § 2, cl. 2.
`
`71.
`
`On information and belief, the DAARP is not appointed by the President,
`
`a court of law, or a head of department. Rather, as a career civil servant, Mr. Rauch
`
`was hired by the civil service’s merit staffing process—that is, he was identified by
`
`an Executive Resources Board (or the delegate of the Board) as amongst the most
`
`qualified applicants on non-political criteria, selected by the hiring authority from
`
`those most qualified applicants, and approved as qualified by a board assembled by
`
`the Office of Personnel Management. See 5 C.F.R. §§ 317.501, 317.502. On
`
`information and belief, the hiring authority for Mr. Rauch was not the President, a
`
`court of law, or a head of department.
`
` 18
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 20 of 23
`
`72.
`
`Moreover, Congress has not provided for the DAARP’s position by law
`
`and so it necessarily has not, by law, vested the DAARP’s appointment in the
`
`President, a court of law, or a head of department.
`
`73.
`
`The DAARP therefore exercises his powers unconstitutionally even if he
`
`need only be appointed as an inferior officer.
`
`In the Alternative—Unconstitutional Action by the Assistant Administrator
`
`74.
`
`The DAARP was empowered to adopt the Rule without the concurrence
`
`of other officials and was responsible for doing so. Nevertheless, assuming the
`
`Assistant Administrator also approved the Rule as issued, the Rule still must be
`
`vacated.
`
`75.
`
`The Assistant Administrator has been delegated wide, unreviewable
`
`discretion to exercise the Secretary’s powers across a broad range of statutes. She
`
`therefore must be appointed as a principal officer. Nevertheless, she is not nominated
`
`by the President and confirmed by the Senate, and she therefore holds her office
`
`unconstitutionally and any approval of the Rule was thus in violation of the
`
`Appointments Clause and ineffective.
`
`*
`*
`*
`The Rule is thus contrary to constitutional right, power, privilege, or
`
`76.
`
`immunity. 5 U.S.C. § 706(2)(B).
`
`SECOND CLAIM FOR RELIEF
`
`Delegation of Rulemaking Authority
`to a Person Not Appointed as an Officer
`(U.S. Const. art. II, § 2, cl. 2; 5 U.S.C. § 706(2)(B))
`The preceding paragraphs are incorporated herein by reference.
`
`77.
`
` 19
`
`

`

`Case 8:22-cv-00689-PX Document 1 Filed 03/21/22 Page 21 of 23
`
`78.
`
`The Administrative Procedure Act (“APA”) subjects to judicial review
`
`“[a] preliminary, procedural, or intermediate agency action” that is contrary to the
`
`Constitution. 5 U.S.C. §§ 704, 706. Such actions are subject to review on the review
`
`of a final agency action. Id. § 704. The NOAA Administrator’s delegation of
`
`rulemaking authority under the Act to the NMFS Assistant Administrator is a
`
`preliminary, procedural, or intermediate agency action preceding the issuance of the
`
`final rule. And the NMFS Assistant Administrator’s delegation of rulemaking
`
`authority under the Act to the NMFS Deputy Assistant Administrator for Regulatory
`
`Programs is likewise a preliminary, procedural, or intermediate agency acti

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