More than 1,300 owners of federally licensed charter boats in the Gulf of Mexico are suing the federal government in a class action lawsuit to try to force them to buy GPS systems to track their movements.
Charter boat captains, represented by attorneys from the New Civil Liberties Alliance, are suing the US Department of Commerce, National Oceanic and Atmospheric Administration and National Marine Fisheries Service to compel owners to install GPS tracking devices on their boats at their own expense.
The rule, passed as law in July 2020, requires owners or operators of licensed charter fishing vessels in the Gulf of Mexico to submit an electronic fishing report and states that each vessel must be “equipped with approved hardware and software by the NMFS with minimal capacity. archiving GPS positions.
The law also states that “the vessel location tracking device…must be permanently affixed to the vessel and operated without interruption”.
The tracking device must “archive the precise position of the vessel at least once an hour, 24 hours a day, every day of the year”, and the device must continuously transmit the data to the NMFS and the U.S. Coast Guard , in accordance with the law cited in the lawsuit.
The necessary equipment costs around $3,000, as well as a monthly service fee of $40 to $75.
The law took effect on January 5, 2021. Charter boat operators used a smartphone app they had to download to report certain business data, including charter fees, fuel consumption, fuel price, passenger numbers and crew size, although the GPS tracking requirement was initially “delayed indefinitely,” according to the lawsuit.
NCLA filed suit on behalf of the charter captains in August 2020, and on February 28, 2022, a district court denied a motion for summary judgment, as well as a request to stop the regulations. The GPS tracking requirement went into effect the next day, and NCLA immediately appealed the decision to the United States Court of Appeals for the 5th Circuit.
NCLA filed its opening brief in the case last week, and the states of Louisiana, Alabama, Mississippi and South Carolina, along with two public interest organizations, filed briefs with the supporting court.
NCLA argues that the GPS tracking requirement violates the 4th and 5th Amendments and imposes costly and burdensome regulations without explaining how the regulations improve conservation or fisheries management. The lawsuit notes that charter fishing accounts for less than 1% of the total catch in the Gulf of Mexico and less than 3% of recreational fishing.
The NCLA also argues that “the case raises complex issues regarding an agency’s obligations under the notice and comment and arbitrary and capricious requirements of the Administrative Procedure Act.”
The explanatory notes cover the same issues.
“The final rule clearly violates the prohibition on warrantless tracking via government-installed devices recognized by the Supreme Court in US v. Jones,” according to the joint brief filed by the state attorneys general. “Although the preservation of the nation’s fisheries is a true objective of the government, the means by which the defendants-defendants seek to do so must be limited to constitutionally authorized methods.” The final rule exceeds these limits.
“No exception of warrant, substantive principle of property law, custom or common law practice makes the physical installation and continued operation of GPS tracking devices aboard chartered fishing vessels reasonable in the absence of a warrant” , wrote the Pacific Legal Foundation. “Thus, without further consideration of privacy expectations unrelated to the Fourth Amendment proprietary rights baseline, [the Fifth Circuit] should prohibit the impugned rule mandating the installation and operation of such devices.
The Buckeye Institute argued that the district court’s decision should be overturned because the GPS tracking requirement “does not meet constitutional requirements” and “does not present an adequate substitute for a warrant because it is not limited in time or scope”.
The NCLA requested oral arguments in the case to “help the court navigate the complex legal and factual issues presented.”