Thu, May 12, 2022 3:41 PM
By By Victor Skinner The Center Square contributor, The Center Square
(The Center Square) – More than 1,300 federally permitted charter boat owners in the Gulf of Mexico are suing the federal government in a class-action lawsuit over an effort to force them to purchase GPS systems to track their movements.
The charter boat captains, represented by attorneys at the New Civil Liberties Alliance, are suing the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service over a requirement for owners to install GPS tracking devices on their boats at their own expense.
The rule, adopted as law in July 2020, requires the owners or operators of permitted charter fishing boats in the Gulf of Mexico to submit an electronic fishing report and states each boat must be “equipped with NMFS-approved hardware and software with a minimum capability of archiving GPS locations.”
The law also states “the vessel location tracking device … must be permanently affixed to the vessel and have uninterrupted operation.”
The tracking device must “archive the vessel’s accurate position at least once per hour, 24 hours a day, every day of the year,” and the device must continuously transmit the data to NMFS and the U.S. Coast Guard, according to the law cited in the lawsuit.
The equipment necessary costs about $3,000, along with a monthly service fee of $40 to $75.
The law became effective on Jan. 5, 2021. Charter boat operators have been using a smartphone app they were required to download to report certain business data, including the charter fee, fuel usages, fuel price, number of passengers, and crew size, though the GPS-tracking requirement was initially “delayed indefinitely,” according to the lawsuit.
NCLA filed suit on behalf of charter captains in August 2020 and on Feb. 28, 2022 a district court denied a motion for summary judgement, as well as a request to halt the regulations. The GPS-tracking requirement became effective the next day and NCLA immediately appealed the decision to the U.S. 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 court in support.
NCLA argues the GPS tracking requirement violates the 4th and 5th amendments and imposes costly and burdensome regulations without articulating 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 the recreational fishery.
NCLA also argues the “case poses complex questions regarding an agency’s obligations under the notice-and-comment and arbitrary-and-capricious requirements of the Administrative Procedure Act.”
The supporting briefs center on the same issues.
“The Final Rule plainly violates the prohibition of warrantless tracking via Government-installed devices recognized by the Supreme Court in U.S. v. Jones,” according to the joint brief filed by the states’ attorneys general. “While preserving the nation’s fisheries is a proper Government objective, the means by which Defendants-Appellees seek to do so must be constrained to constitutionally permissible methods. The Final Rule exceeds these bounds.”
“No warrant exception, background principle of property law, custom, or common-law practice renders the physical installation and continuous operation of GPS tracking devices onboard charter fishing vessels reasonable in the absence of a warrant,” the Pacific Legal Foundation wrote. “Thus, without further examination of privacy expectations irrelevant to the Fourth Amendment’s property-rights baseline, [the Fifth Circuit] should enjoin the challenged rule mandating the installation and operation of these devices.”
The Buckeye Institute argued the District Court’s decision should be reversed because the GPS tracking requirement “fails to pass constitutional muster” and “does not present an adequate substitute for a warrant because it is not limited in time or scope.”
NCLA requested oral arguments in the case to “help the court navigate the complicated legal and factual issues presented.”