Mexican Gulf Fishing Company, et al. v. National Oceanic and Atmospheric Administration, et al.

Washington, DC (November 29, 2023) – The New Civil Liberties Alliance has agreed to dismiss its motion for fees under the Equal Access to Justice Act in Mexican Gulf Fishing Company v. U.S. Department of Commerce. In lieu of a court judgment on the pending motion, the U.S. Government has paid NCLA a $160,000 fee settlement. In February, NCLA convinced the U.S. Court of Appeals for the Fifth Circuit to set aside an unconstitutional National Marine Fisheries Service (NMFS) Final Rule that required 24-hour GPS tracking of recreational charter fishing vessels and reporting of confidential economic data. NCLA celebrates this just conclusion to our clients’ long-fought battle against the Final Rule, along with Greg Grimsal and his colleagues at the New Orleans firm of Gordon Arata, who provided invaluable local counsel in the case.

NCLA has represented more than 1,300 federally permitted charter boat owners in this class-action lawsuit against the Final Rule, which required every boat to install an onboard Vessel Monitoring System tracking device that continuously transmitted its GPS location to NMFS. The Rule forced charter boat captains to pay for these devices, which tracked boats whether they were being used for a charter-fishing trip or something else. This 24-hour surveillance was unnecessary, unduly burdensome, and violated the Fourth Amendment by searching without probable cause or a warrant. It also exceeded NMFS’s authority under the Magnuson-Stevens Act and was arbitrary and capricious in violation of the Administrative Procedure Act. NCLA also complained the rule required reporting data that the agencies had nowhere specified in proposing the rule for comment.

The Fifth Circuit largely agreed with NCLA’s analysis and held that the GPS-tracking requirement was unlawful for several reasons, including that “the Government failed to respond to public comments expressing concerns of personal privacy violations stemming from GPS surveillance.” Judge Jennifer Elrod emphasized that particularly on unlawful searches “the Government fail[ing] to identify this particular concern from the public comments borders on incredible.” NCLA commended the Fifth Circuit for its wise decision and is now pleased to bring its clients’ long ordeal to an end.

In January 2024, NCLA will present oral arguments before the U.S. Supreme Court in its Relentless v. Department of Commerce case challenging the Chevron doctrine and another unconstitutional NMFS rule that requires fishing companies in the North Atlantic to pay for at-sea government monitoring of their herring catch. Relentless will be argued in tandem with the case of Loper Bright Enterprises, et al. v. Gina Raimondo. In these cases and many others, NCLA continues to turn the tide against the Administrative State’s violations of Americans’ civil liberties.

NCLA released the following statements:

“We are pleased to have reached a settlement agreement with the Government on the legal fees at issue in this matter. This $160,000 payment rewards NCLA and its local counsel for taking this important case, vindicates our clients’ rights, and avoids burdening the Courts with ancillary litigation.”
— John Vecchione, Senior Litigation Counsel, NCLA

“This rule was a constitutional travesty from the get-go. NCLA is proud to have vindicated our clients’ civil liberties. We will put these funds to good use in lawsuits against other federal agencies, securing Americans’ civil liberties from an Administrative State that routinely fails to respect people’s rights.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (February 23, 2023) – In a landmark win for charter boat fishermen across the Gulf of Mexico, the U.S. Court of Appeals for the Fifth Circuit has set aside a controversial Final Rule issued by the National Marine Fisheries Service (NMFS), which required 24-hour GPS tracking of recreational charter boat fishing vessels and reporting of confidential economic data. As Judge Jennifer Walker Elrod wrote, “in promulgating this regulation, the Government committed multiple independent Administrative Procedure Act violations, and very likely violated the Fourth Amendment.” The ruling is major for many reasons, including that the government tried to claim that charter boat fishing is a “closely-regulated industry” to which the Fourth Amendment does not apply.

NCLA represents more than 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company v. U.S. Department of Commerce. The Final Rule required each charter boat to be “equipped with NMFS-approved hardware and software with a minimum capability of archiving GPS locations.” The Rule would have required charter boats to install onboard an NMFS-approved Vessel Monitoring System (VMS) tracking device—an “anchor bracelet”—that continuously transmits the boat’s GPS location to NMFS, whether the boat is being used for a charter-fishing trip or for something else. Charter boat operators “are responsible for purchasing the VMS units,” which the Final Rule estimated would cost upwards of $3000 plus a monthly service fee of $40 to $75. NCLA argued this 24-hour GPS surveillance was not only unnecessary and unduly burdensome, but also that this requirement violated the Fourth Amendment by searching without probable cause or a warrant, exceeded the authority granted by the Magnuson-Stevens Act (MSA), and was arbitrary and capricious in violation of the Administrative Procedure Act (APA). NCLA also complained that the rule required reporting economic data that had nowhere been specified by the agencies in proposing the rule for comment.

The Fifth Circuit agreed with NCLA’s analysis and held that the GPS-tracking requirement was unlawful for “several independently sufficient reasons.” These include (1) that the “unambiguous language of the Magnuson-Stevens Act does not authorize the regulation;” (2) “the Government failed to respond to public comments expressing concerns of personal privacy violations stemming from GPS surveillance;” (3) “the Government failed to rationally consider the associated costs and benefits;” and (4) the Final Rule cannot withstand APA review because there was improper notice of the data the agency planned to collect. Regarding the contention that the Government failed to address Fourth Amendment concerns in public comments, Judge Elrod emphasized that “the Government fail[ing] to identify this particular concern from the public comments borders on incredible.”

Charter boats operating in the Gulf of Mexico are small businesses. They account for less than one percent of Gulf fishing. NCLA commends the Fifth Circuit for recognizing the financial and privacy costs associated with NMFS’s ill-conceived regulation. The Court also correctly held that the agencies could not state vaguely that they sought “other” socio-economic data and then require purely economic data reporting like the cost of fuel and how much passengers were charged. In highlighting how the Government failed to connect the GPS-tracking requirement with any legitimate conservation purpose, Judge Elrod wrote, “What benefits does the Government point to in response? Next to nothing.”

NCLA released the following statements:

“The rights of all charter boat fishing businesses in the Gulf of Mexico have been vindicated. Just because they have fishing permits does not let Big Brother track them 24 hours a day. The agencies were utterly dismissive of the rights of more than a thousand of these boat owners, but the Fifth Circuit was having none of it.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

“Since this rulemaking began, the Government has ignored massive privacy costs that its rule placed on charter fisherman in the Gulf. As the Fifth Circuit held, government agencies are not free to duck hard questions, nor may they avoid considering a rule’s costs and benefits. They tried to do so here and got slapped down hard.”
— Kara Rollins, Litigation Counsel, NCLA

For more information visit the case page here and watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (May 3, 2022)—The New Civil Liberties Alliance filed its opening brief Monday in its appeal to the U.S. Court of Appeals for the Fifth Circuit on behalf of more than 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. Dept. of Commerce, et al. The appeal challenges a Final Rule issued by the National Marine Fisheries Service (NMFS) pursuant to the Magnuson-Stevens Act. It requires 24-hour GPS tracking of recreational charter boat fishing vessels in the Gulf of Mexico. NCLA argues, among other things, that the district court erred in holding that the Fourth Amendment allows an agency to monitor charter boat operators without a warrant or any suspicion of wrongdoing.

On August 20, 2020, Appellants filed a class-action suit challenging the Final Rule as unconstitutional and unlawful. Appellants do not challenge the transmission of fish-related information in electronic fishing reports; rather, they challenge the GPS tracking mandate and the requirements to transmit “other information” not specified in the Notice of Proposed Rulemaking, including business data. On February 28, 2022, the district court denied the boat owners’ motion for summary judgment and denied their request for a stay of the regulation. The GPS-tracking requirement came into effect the next day. NCLA immediately appealed.

The Government produced no evidence of routine violations of conservation regulations by charter-fishing federal permit holders in the Gulf of Mexico justifying their surveillance; the agencies and the district court simply assumed it. The amount of the fishing resource harvested by the class of charter boat permit holders is tiny, yet NMFS has based extremely invasive and intrusive searches and data collection on it. Worse, the Final Rule mandates GPS tracking of charter boat operators even when they are not fishing or using the permits in any manner (such as when they are taking a pleasure cruise with their own family). It also forces the class to purchase the monitoring systems and place them on their vessels in violation of the Fifth Amendment’s prohibition on taking property without just compensation. Congress did not grant the Department of Commerce, nor its bureaus or offices, the authority to compel such unwanted purchases and physical attachments to these vessels.

The imposition of permanent 24-hour-a-day electronic tracking of charter boats is a novel and dangerous government intrusion into Americans’ private lives. Constant GPS tracking violates Plaintiffs’ reasonable expectations of privacy and constitutes a warrantless and unconstitutional search. Neither the district court nor the Government denies that the Final Rule empowers an administrative agency to electronically record Americans’ movements, even when they are not engaging in regulated activities, as long as they work in a “closely-regulated industry.” But, even assuming that commercial fishing is a closely-regulated industry—certainly a contestable claim—recreational charter boat fishing is not. So, the district court’s reliance on the closely-regulated-industry exception to the Fourth Amendment was legal error. Furthermore, that exception does not even apply to Fourth Amendment violations that include physical trespass, which the mandated Vessel Monitoring Systems at issue here do. So, the Final Rule’s GPS-tracking requirement violates the Fourth Amendment of the U.S. Constitution, and it should be set aside.

NCLA released the following statement:

“Everyone who engages in recreational fishing should be livid that the Government has asserted a right to monitor your whereabouts at all times because you might be using the fishing resource. There is no reason to think this incredible invasion of our clients’ constitutional rights, if tolerated, will not be extended to any sportsmen who take fish from America’s waters. To give bureaucrats the right to search you at any time on the off chance you are fishing makes our constitutional protections flimsy indeed. We look forward to the Fifth Circuit’s reversing this mistaken decision.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (March 3, 2022) – The U.S. District Court for the Eastern District of Louisiana has denied the Motion for Summary Judgment filed by over 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al., and granted the Government’s motion to allow a Final Rule governing the tracking of boats to go into effect. Charter boats operating in the Gulf of Mexico must now comply with an unlawful requirement to pay for and “permanently affix” a Vessel Monitoring System (VMS) that tracks, relays, and stores information for government use. The U.S. Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service began enforcing the Final Rule on Tuesday, March 1, 2022. On behalf of its clients, the New Civil Liberties Alliance filed a notice of appeal on March 2 and will move for stay of the regulation in the U.S. Court of Appeals for the Fifth Circuit.

NCLA, a nonpartisan, nonprofit civil liberties group, brought the lawsuit on behalf of the entire class of charter boat permit holders under pressure to purchase at least one and sometimes multiple VMS devices that can cost up to thousands of dollars each. NCLA represents charter boat owners operating off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, who are seeking relief against the Final Rule. In November 2021, NCLA was successful in petitioning the Government to delay the effective date of the Final Rule to March 1, 2022.

The VMS Requirement violates, among other things, the Fourth Amendment of the U.S. Constitution to be free of unreasonable searches. Even after assuming the tracking requirement constitutes a Fourth Amendment search, the District Court ruled against Plaintiffs because “the search is reasonable under the closely regulated industry exception,” which allows warrantless searches only in industries that pose significant dangers to the public. There is no evidence that charter boat operations present any risk to the public, particularly not the abstract concept of overfishing, as charter fishing’s impact on Gulf fish stocks is miniscule. But even if charter fishing were deemed closely regulated because it somehow poses a public danger—though the Supreme Court has not so held—the Government still cannot violate the Constitution even for a closely regulated industry.

Following the Supreme Court’s 2015 decision in City of Los Angeles v. Patel, being subject to licensing requirements and other regulations, even extensive ones, no longer suffices to qualify as “closely regulated” for Fourth Amendment purposes. Charter boats are regulated solely for how many fish they catch and when. Constant tracking of charter boats’ whereabouts, even when not fishing, is not part of any regulatory purpose. To the extent warrantless searches are permitted in the context of the fishing industry, at minimum, they must stop when Plaintiffs are not fishing. The Final Rule makes no such distinction and tracks Plaintiffs’ movement regardless of whether they are using their vessels for business, recreation, or travel.

The District Court erroneously skirted the post-Patel approach, whereby extensive regulation and licensing requirements are not enough for the “pervasively regulated” exemption. Instead, it relied on contrary pre-Patel decisions from other circuits. The Fifth Circuit should correct course and stay this unlawful regulation.

NCLA released the following statement:

“Taking people fishing in the Gulf of Mexico is neither a federal crime nor a closely regulated industry. The Government should not subject charter-boat captains to constant tracking, even when using their vessels for other purposes. NCLA is appealing this ruling to the Fifth Circuit. We will seek to stay the part of the regulation that violates the Fourth Amendment in the meantime.”

— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

Washington, DC (November 2, 2021) – A rule requiring for-hire charter boat captains off the Gulf of Mexico to install vessel monitoring systems (VMS), a kind of GPS tracking device, on their boats to supply 24/7 location information to the U.S. Government has been put on hold. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, previously filed a petition with the National Oceanic and Atmospheric Administration (NOAA) to amend the effective date of the Final Rule by 90 days until March 14, 2022. However, NOAA has only approved a delay until March 1, 2022.

NCLA represents over 1,300 federally permitted charter boat owners operating off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, who are seeking relief against the Final Rule in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. NOAA, et al.

NCLA argued in the petition to NOAA that the agency should permit the U.S. District Court for the Eastern District of Louisiana time to determine the validity of the Rule before requiring petitioners and their respective class members—Gulf charter boat captains and companies—to purchase, install, and operate costly and unconstitutionally invasive tracking devices. The constitutional violations in the Rule are even more stark, given that many owners of charter boats also use them for personal non-fishing activities but are still monitored and tracked on such excursions.

On July 21, 2020, the National Marine Fisheries Service (NMFS) published the Final Rule, Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico Fisheries. The Rule requires that each charter boat must be “equipped with NMFS-approved hardware and software with a minimum capability of archiving GPS locations.” The VMS must be “permanently affixed” to the vessel and “archive[] the vessel’s accurate position at least once per hour, 24 hours a day, every day of the year.”

This 24-hour GPS surveillance is not only unnecessary and unduly burdensome, but the Supreme Court struck down long-term location tracking as an unconstitutional invasion of privacy months before the issuance of the notice of proposed rulemaking. NMFS and NOAA plunged ahead anyway.

The Petitioners and counsel for NOAA agreed to and filed a request to shorten the briefing schedule and for expedited review. Petitioners anticipate that briefing will conclude in November. While NOAA did not credit NCLA, this successful petition means the Court will now have time to consider the positions of the parties.

NCLA released the following statements:

“The agencies appeared determined to force our clients and the class they represent to purchase monitoring devices that cost thousands of dollars per charter vessel and be tracked twenty-four hours a day, before a court could rule on our motion to set aside the regulation because it violates constitutional and statutory rights. This wise action of NOAA and the regulators gives the Court more time to consider the law in this matter and grants the many hundreds of charter boat captains in the Gulf of Mexico a reprieve until next year at least.”
— John Vecchione, Senior Litigation Counsel, NCLA

“While we appreciate the federal regulators’ decision to delay this rule, they still have not explained how 24-hour tracking of charter boats—which account for a minuscule amount of Gulf fishing—promotes conservation, especially since boat captains already report the number and types of fish caught in real time.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (September 3, 2021) – A video released today by the New Civil Liberties Alliance dives into a lawsuit brought by charter boat captains, including Allen Walburn, who has been chartering deep-sea fishing vessels in Naples, FL, for the past 42 years. Captain Walburn operates one of approximately 1,300 federally permitted charter boats that take customers fishing and sightseeing off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas. The captains and owners of these boats are all part of a class-action lawsuit brought by NCLA, a nonpartisan, nonprofit civil rights group.

The lawsuit challenges a Final Rule issued by the National Oceanic and Atmospheric Administration (NOAA), the U.S. Department of Commerce, and the National Marine Fisheries Services (NMFS). The rule requires Gulf of Mexico for-hire charter vessel owners to install hardware and software on their boats approved by NMFS that provides GPS tracking information to the government. They must submit electronic fishing reports that include intrusive and proprietary business information “to protect fisheries.”

The rule is unconstitutional, unauthorized, and wholly disproportionate to any plausible conservation purpose. The 24-hour GPS tracking of all charter boats without any suspicion of wrongdoing is a violation of the Fourth Amendment’s prohibition against unreasonable searches. The permanent installation of GPS-tracking devices on charter boats constitutes a taking in violation of the Fifth Amendment. And by requiring charter-boat operators to purchase and provide the government data from these unwanted devices—$3,000 per unit—the Final Rule exercises power that Congress did not and could not have granted the agencies.

Last month, NCLA filed a motion asking the U.S. District Court for the Eastern District of Louisiana to award summary judgment and enjoin the application of the Final Rule against charter boat captains operating in the Gulf of Mexico.

Excerpts from the video:

“I don’t know of anybody else in our country that is required to have a monitoring device attached to their personal equipment 24 hours a day, 7 days a week, and has to notify the federal government of their use of the equipment and the intent of the use of the equipment. We’re upset about this because Big Brother is intruding into our business, in essence putting an ankle bracelet on all the charter boat operators in the Gulf of Mexico.”
— Captain Allen Walburn, Owner, A&B Charters Inc.

“The whole reason you have this regulation is to protect the fisheries. They have to have a permit to fish and to take people out on charter boats. And the government has an interest in making sure that they fish correctly. All fine. But there is no relationship between watching you 24 hours a day and checking which fish you took in.”
— John J. Vecchione, Senior Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (August 12, 2021) – The New Civil Liberties Alliance filed a motion for summary judgment this week, requesting relief on behalf of more than a thousand charter boat captains who are challenging a Final Rule subjecting charter boats operating in the Gulf of Mexico to 24-hour warrantless surveillance. The motion was filed in the U.S. District Court for the Eastern District of Louisiana, in NCLA’s class-action lawsuit, Mexican Gulf Fishing Company, et al. v. National Oceanic and Atmospheric Administration, et al.

The National Marine Fisheries Service (NMFS) published the Final Rule in July 2020, requiring that each charter boat be “equipped with NMFS-approved hardware and software with a minimum capability of archiving GPS locations.” The Vessel Monitoring System (VMS) must be permanently affixed to the vessel and “archive[] the vessel’s accurate position at least once per hour, 24 hours a day, every day of the year.” In other words, NOAA and NMFS want to LoJack every charter boat in the Gulf of Mexico—but they don’t own these boats.

Unfortunately for NOAA/NMFS, the Supreme Court struck down long-term location tracking by government agencies as an unconstitutional invasion of privacy months before the issuance of the notice of proposed rulemaking. Thus, NCLA argues the 24-hour GPS tracking of all charter boats in the Gulf of Mexico without any suspicion of wrongdoing violates the Fourth Amendment’s prohibition against unreasonable searches. Moreover, the permanent installation of GPS tracking devices on charter boats effects an uncompensated taking, in violation of the Fifth Amendment. These constitutional violations are even more stark, given that many owners of charter boats also use them for personal non-fishing activities but are still monitored and tracked on such excursions.

Plaintiffs do not challenge the transmission of fish-related information in electronic fishing reports. Rather, they challenge the requirement to transmit “other information” not specified in the regulatory text, including business data. The Final Rule creates a regime of pervasive and constant electronic monitoring. It imposes burdensome technological and reporting requirements on small businesses and confers virtually no benefit over cheaper and less intrusive methods in monitoring fish stocks in the Gulf of Mexico.

Beyond the blatant constitutional violations, NOAA/NMFS’s surveillance program for chartered boats is not authorized by the Magnuson-Stevens Act, which Congress passed to protect, manage, and grow U.S. fisheries resources. Each of these grounds provides enough reason to set aside the Final Rule and declare it unlawful.

NCLA released the following statements:

“Taking people out into the Gulf of Mexico to fish is not a crime, and the Administrative State should not be able to track our clients with marine ‘ankle bracelets’ reporting their every move.”
— John Vecchione, Senior Litigation Counsel, NCLA

“The Final Rule would subject every single charter boat owner in the Gulf of Mexico to 24-hour GPS tracking, without warrants or even suspicion of wrongdoing. The Supreme Court has said clearly and repeatedly such panoptic surveillance violates the Fourth Amendment. What’s worse, under the Final Rule boat owners must pay for the violation of their own constitutional rights because the rule forces them to purchase, install, and maintain expensive tracking 6devices themselves for the government’s use.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document 

Washington, DC (June 11, 2021) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, is defending the rights of more than 1,000 charter vessel operators in the Gulf of Mexico. In a class-action lawsuit against the National Oceanic and Atmospheric Administration (NOAA), NCLA objects to unconstitutional and warrantless surveillance of boating operations. The U.S. District Court for the Eastern District of Louisiana granted NCLA’s motion for class certification this week and accepted an amended complaint in Mexican Gulf Fishing Company, et al. v. National Oceanic and Atmospheric Administration, et al. The ruling ensures that all members of the class will benefit from the Court’s rulings on these privacy issues.

In July 2020, the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service (NMFS), and the U.S. Department of Commerce published a Final Rule requiring Gulf for-hire vessel owners to submit electronic fishing reports “using hardware and software approved by NMFS.” The plaintiffs, charter boat captains and companies that take customers fishing and sightseeing off the coasts of Alabama, Florida, Louisiana, Mississippi, and Texas, say that the rule is the regulatory equivalent of an “ankle bracelet” (or anchor bracelet!) that constantly monitors their businesses and personal lives. It mandates that charter boat captains pay for and “permanently affix” a Vessel Monitoring System (VMS) and allow the tracking device to relay and store information at all times. Each captain must contact NMFS every time the vessel leaves port—even if just crossing the bay for dinner.

The Final Rule imposes technological and reporting requirements on small businesses and confers virtually no benefit in monitoring fish stocks in the Gulf of Mexico over cheaper, less intrusive methods. There is zero evidence that written logs and weekly reporting of fish reports countersigned by charter boat customers are insufficient for the government’s purposes. Further, the VMS unit gives NMFS knowledge of the vessels’ whereabouts 24 hours a day, 365 days a year, thus forcing captains to divulge sensitive proprietary information, including prime fishing locations that captains have spent decades obtaining.

The forced use of VMS “anchor bracelets” violates the plaintiffs’ constitutional right to privacy by transmitting and archiving locations when the vessels are used both for for-hire fishing and purely private and nonregulated purposes. As the amended complaint clarifies, NCLA is also challenging the aspects of NOAA’s Final Rule that require captains to divulge “charter fees, fuel prices, amount of fuel used, number of paying passengers, number of crew, [and] similar economic information.” None of that proprietary business information helps NOAA or NMFS track fishing stocks and is being collected unlawfully. The Fourth Amendment protects a person’s possessory rights by forbidding the government from trespassing without a warrant based on probable cause. Additionally, the Final Rule infringes on the plaintiffs’ freedom of movement under the Ninth Amendment. In light of these violations, the Plaintiffs seek permanent injunctive relief setting aside the Final Rule.

NCLA released the following statements:

“The Court’s ruling is welcome and allows all charter boat operators in the Gulf to benefit from rulings by the Court in this matter without the necessity of joining hundreds of aggrieved parties. The government opposed this motion, but the Court’s ruling makes eminent sense given the wide-ranging impositions on charter boats caused by the Final Rule.”
— John Vecchione, Senior Litigation Counsel, NCLA

“Warrantless GPS surveillance of even a suspected criminal’s vehicle is indisputably unconstitutional. Yet, NOAA is mandating 24-hour GPS surveillance of countless boat owners for running legitimate businesses. It does not take a legal scholar to spot the constitutional violation.”
— Sheng Li, Litigation Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (August 20, 2020) – The U.S. government is trying to force charter boats and companies that take customers fishing and sightseeing in the Gulf of Mexico to purchase a vessel monitoring system (VMS). Federal agencies will use the VMS tracking devices to monitor boats’ movements and whereabouts on the water, even when they are not using their federal permits to fish. A class-action lawsuit was filed today by the New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, in the U.S. District Court for the Eastern District of Louisiana against the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the respective agency heads in their official capacities. It contends that these agencies are mandating an unlawful and unconstitutional 24-hour GPS surveillance regime without a warrant.

The named plaintiffs NCLA represents are for-hire vessel operating companies and captains who are affected by a final rule enforced by Commerce, NOAA, and NMFS. The case is Rivers End Outfitters, et al. v. Department of Commerce, et al. The rule, which goes into effect on January 5, 2021, affirms that owners or operators of charter vessels or for-hire vessels in the Gulf of Mexico must submit an electronic fishing report using NMFS-approved hardware and software with GPS location capabilities that “at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS.” The rule also requires that captains pay for the vessel equivalent of an ankle bracelet. NCLA contends that these agencies cannot issue a regulation that would monitor law-abiding captains more closely than many prisoners on parole.

According to the agencies, the purpose of this final rule is to “increase and improve fisheries information collected from federally permitted for-hire vessels in the Gulf.” But NCLA argues that warrantless access to the GPS information of a person’s locations and movements is blatantly unconstitutional. It amounts to an unreasonable search violating the Fourth Amendment and violates Ninth Amendment rights, including the right to privacy, freedom of movement, free enterprise, freedom from unreasonable governmental interference, and the right to travel. Since plaintiffs are the sole owners of the data produced by their newly purchased devices, the seizure of it without any cause also violates the Due Process Clause of the Fifth Amendment.

In addition to constitutional infringements, the agency’s surveillance program for chartered boats is not authorized by the Magnuson-Stevens Act (MSA)—meant to protect, manage, and grow U.S. fisheries resources. MSA authorizes warrantless access to VMS data by the Coast Guard and other law enforcement agencies only if they have a reasonable belief of wrongdoing. But it does not require a vessel to have such data nor does it command them to buy a 24-hour surveillance device. The VMS mandate does not protect, conserve, grow, or help manage the United States’ fisheries resources. Therefore, it greatly burdens NCLA’s clients without accomplishing any of the MSA’s goals.

Commerce also failed to prepare legally sufficient regulatory flexibility analyses in violation of the Regulatory Flexibility Act (RFA)—meant to require agencies to take into account the impact their rules have on small businesses. NCLA’s clients are precisely the kind of entities the RFA protects.

This is not the first time that Commerce and NOAA have acted in excess of any statutory authority granted by Congress. This past March, NCLA brought the lawsuit Relentless Inc., et al. v. U.S. Dept. of Commerce, et al. challenging the agency’s at-sea monitor mandate that unlawfully commands small commercial fishing businesses to pay for the Atlantic herring at-sea monitoring program.

NCLA released the following statements:

“Commerce and NOAA cannot issue a regulation that not only requires a charter boat owner to be tracked whenever he’s on his boat, but also to call the government every time he leaves port—whether to fish or take his wife to dinner. This surveillance is greater than some prisoners on parole get and does nothing to preserve and grow fish stocks in the Gulf of Mexico. It violates Constitutional rights to absolutely no legitimate purpose.”

— John Vecchione, Senior Litigation Counsel, NCLA 

“Being issued a federal permit to conduct regulated fishing is not a license for the government to fully invade the privacy and other constitutional rights of the Gulf’s charter fishermen at all times regardless of whether they are engaged in regulated activities. That’s not a tradeoff contemplated under the Magnuson-Stevens Act nor permitted under the Constitution. This suit aims to stop these agencies’ unlawful use of administrative power.”

— Kara Rollins, Litigation Counsel, NCLA

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document