BLOOD IN THE WATER: SHARK FEEDING, TOURISM, AND THE LAW.

• Author: Macdonald, Catherine

1. INTRODUCTION A. Methods B. Shark Feeding Tourism and Economic Valuation II. LEGAL IMPLICATIONS OF SHARK FEEDING A. Governmental Liability for Shark Bites B. Jurisdictional Issues III. CASE STUDY L: FLORIDA A. Florida Legal Precedents for Liability Associated with Shark Attacks B. History of the Florida Ban C. The Industry's Proposed Self-Regulation D. Legal Basis for Regulation by the Florida Fish and Wildlife Commission E. The Administrative Hearing Complaint: The Industry Appeals F. A Second Attempt to Derail the Rule: The Industry Brings a Civil Suit G. Enforcing the Feeding Ban in Florida IV. CASE STUDY 2: HAWAII A. Hawaii's Legislative Ban on Shark Feeding B. Enforcing the Shark Feeding Ban in Hawaii V. CONCLUSION I. INTRODUCTION

   In recent years, a number of researchers have suggested that shark-based ecotourism can play an important role in advancing legal protections for sharks and other vulnerable species of elasmobranch. It has been argued that shark ecotourism can create economic incentives that encourage governments and individuals to protect sharks from anthropogenic threats including overfishing, finning, and indiscriminate use of longlines. (1) In spite of concerns about the potential effects of feeding sharks on both public safety and animal health, studies attempting to assess the effects of shark-based tourism on shark behavior and well-being are equivocal. (2) Most report some behavioral changes in participating sharks, but the significance and severity of these changes is the subject of intense and ongoing debate. (3)

   Despite a lack of clear evidence that shark tourism creates a hazard for participants or the general public, the economic benefits associated with shark ecotourism still appear to be too small to secure the future of shark species--or even of shark ecotourism as a commercial activity--and fail to account for the potential opportunity costs associated with increases (or perceived increases) in shark attack risk due to such activities. In response to concerns over the marine conservation impacts of shark feeding, as well as the health and safety of human beings who come into contact with sharks attracted by feeding activities, some state and local governments have instituted, or considered instituting, legal bans on commercial shark feeding. (4) These concerns are undoubtedly related not just to possible safety risks, but also to the concomitant potential tort liability for governmental entities managing the waters in which humans and sharks may interact.

   This Article investigates the interlocking legal, economic, and conservation issues surrounding the implementation of such regulation. In the first section, we provide an overview of shark ecotourism and legal risks which may arise for the state as a result. This section discusses legal and economic reasons that the implementation of bans on shark tourism by many U.S. states and municipalities was predictable (and, perhaps, inevitable). The second section provides an exploration of two case studies based on introductions of shark feeding bans. The first case study, in Florida, traces the failure of a small but relatively organized and well-funded local shark tourism industry to avoid being regulated out of legal existence. This case study demonstrates the potential for lengthy and contentious debates both in and out of court to which such regulations may lead. The second case study, in Hawaii, focuses on some of the difficulties associated with effectively enforcing such a ban once it becomes law.

   1. Methods

      This Article is based on legal research into the risks shark tourism might pose to states, utilizing legal databases and a range of primary source documents. For in-depth information on the Florida ban, the Florida Fish and Wildlife Conservation Commission (FFWC) provided hundreds of pages of minutes, memoranda and other documents in response to our requests, related to the policy and legal issues around shark tourism. Additional historical information was gathered from news coverage of these events in both Florida and Hawaii.

   2. Shark Feeding Tourism and Economic Valuation

      Estimates suggest that marine tourism and ecotourism are an important and growing part of the global tourism economy, with naturebased "ecotourism" activities worth an estimated $10 to $17.5 billion per year worldwide. (5) In a marine context, it has been suggested that ecotourism may serve to generate funds for research and conservation, raise the profile of targeted habitats or species, and create economic rationales for conservationist policies. (6) Non-governmental organizations increasingly view such tourism as both a conservation and "pro-poor" development strategy. (7)

      While the economic values associated with shark tourism are relatively modest in comparison to ecotourism globally, at an estimated $314 million per year, they are still significant enough to support an estimated 10,000 jobs globally. (8)

      There are significant debates about the usefulness of economic measures in calculating the "value" of a species, and particularly the value of individual animals participating in tourism. (9) This is in part a practical matter--for example, published analyses of the economic value of sharks for consumption or tourism often fail to account for the value people may place on the mere existence of sharks, or the ecological contributions sharks make to maintaining healthy ocean ecosystems, both of which may constitute a meaningful portion of the total estimated value of a population. (10)

      Other authors have taken issue with the very idea of using economic valuation as a conservation tool, suggesting the ethical and moral arguments for conservation are weakened when economic rationalism is emphasized as a motive to conserve nature. [11] The reality that many tourist uses of species and areas are harmful to wildlife or ecosystems, or are incompatible with other uses or mutually exclusive, further complicates estimates of value, given that (for example) shark tourism and beach tourism may have difficulty operating in the same areas. (12) There is also considerable doubt about the impact of these activities on the attitudes and behaviors of participants, with some authors arguing that tourism experiences can lead to pro-environmental behaviors, (13) while others are more skeptical that these experiences create lasting attitudinal or behavioral changes in most participants. (14) Potential impacts would presumably be closely linked to the educational content and quality of the tourism experience, which will also inevitably vary, based both on operator resources and customer preferences. (15)

      There is a good deal of contention about the impacts of shark feeding tourism on both humans and sharks. Those who feel that it can meaningfully contribute to conservation point to a dearth of evidence that shark feeding causes serious, harmful ecological impacts, highlight the role of economic valuation as a tool for encouraging governments to protect sharks, and report, generally anecdotally, that direct experiences with sharks can change people's views about them. Those who are less sanguine observe that a lack of proof of harm does not necessarily represent a lack of harm, that habituation and feeding of terrestrial predators is widely understood to be inadvisable, and that the public relations gains of sharks as a result of tourism are speculative. (16) In this data-limited setting, debates are more likely to be based on emotions or opinion than on available facts, and in the absence of scientific consensus, policymakers are likely to act based on local or regional political and legal realities. (17)

2. LEGAL IMPLICATIONS OF SHARK FEEDING

   The risk of an unprovoked shark bite occurring is low: in 2019 only 64 cases were reported worldwide, out of 105 bites total. (18) Yet many governmental agencies may be unwilling to tolerate even this low risk, particularly in areas that are comparative "hotspots" for shark bite incidents. (19) For example, in 2019, 51% of unprovoked shark bites in the United States occurred in Florida, with 9 out of 21 bites occurring in Volusia County alone. (20) Furthermore, even where risks are low, governments reliant on beach tourism dollars may want to avoid making the presence of sharks in the area public information, and face possible perceptions that beaches are unsafe. Finally, although this is contested, some recent research suggests a modest increase in unprovoked shark bites in recent decades, which is not fully explained by increases in human or shark populations. (21)

   While a full discussion of the relevant legal issues would take up multiple volumes, the two primary legal issues implicated are: 1) the liability of governmental entities for shark injuries, the potential risks of which might give rise to a ban on shark provisioning tourism; and 2) jurisdictional issues relating to the ability of a specific governmental entity to implement and enforce such a ban.

   1. Governmental Liability for Shark Bites

      Governmental entities at the federal, state, and local level may face potential liability for animal attacks that occur in areas over which they have control, though whether liability attaches depends on the law of the jurisdiction as well as the specific factual circumstances surrounding a given incident. Such liability would typically take the form of an action for negligence, which occurs with the existence (and violation of) a legal duty to use care, proximately causing injury to another. (22) Landowners generally are liable for negligence for failing to maintain their premises in a safe condition, though the exact duty may differ in some jurisdictions based on the status of the person coming onto the land. (23) In most cases, however, there is at minimum a duty to warn licensees and invitees of dangerous conditions if such conditions are known. (24)

      In the American civil court system, there are two primary hurdles...