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.
“… in promulgating this regulation, the government committed multiple independent Administrative Procedure Act violations, and very likely violated the Fourth Amendment,” Judge Jennifer Walker Elrod wrote.
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.
The National Civil Liberties Alliance (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 final rule would have required charter boats to install onboard NMFS-approved vessel monitoring system (VMS) tracking devices — 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 $3,000 plus a monthly service fee of $40 to $75.
“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,” John J. Vecchione, senior litigation counsel, NCLA, said in a statement. “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.”
NCLA argued that this 24-hour GPS surveillance was not only unnecessary and unduly burdensome, but also that the 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 the reporting of 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 including the following:
• The unambiguous language of the Magnuson-Stevens Act does not authorize the regulation.
• The government failed to respond to public comments expressing concerns of personal privacy violations stemming from GPS surveillance.
• The government failed to rationally consider the associated costs and benefits.
• 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 1% of Gulf fishing. The court also 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.”
“Since this rulemaking began, the government has ignored massive privacy costs that its rule placed on charter fisherman in the Gulf,” said Kara Rollins, litigation counsel, NCLA. “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.”
