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

CASE SUMMARY

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 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 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.

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CASE STATUS: Active

CASE START DATE: August 20, 2020

DECIDING COURT: The U.S. District Court for the Eastern District of Louisiana

ORIGINAL COURT: The U.S. District Court for the Eastern District of Louisiana

CASE DOCUMENTS

July 2, 2021 | Order Considering the Foregoing Unopposed Motion to Amend or Alter Class Certification and to Confirm Class Counsel
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July 2, 2021 | Memorandum in Support of Plaintiffs’ Unopposed Motion to Amend or Alter Class Certification and to Confirm Class Counsel
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July 2, 2021 | Plaintiffs’ Unopposed Motion to Amend or Alter Class Certification and to Confirm Class Counsel
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June 9, 2021 | First Amended Complaint in the U.S. District Court for the Eastern District of Louisiana
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June 2, 2021 | Class Certification Order
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January 5, 2021 | Reply Memorandum in Support of Plaintiffs’ Motion to Certify Class
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November 19, 2020 | Motion of Plaintiffs to Certify Class
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November 19, 2020 | Memorandum in Support of Plaintiffs’ Motion to Certify Class
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August 20, 2020 | Complaint for Permanent Injunctive and Declaratory Relief
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PRESS RELEASES

June 11, 2020 | NCLA ‘Anchor Bracelet’ Lawsuit Granted Class-Action Status in Fight Against NOAA’s Boat Tracking

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.

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August 20, 2020 | NCLA Challenges Dept. of Commerce Regulation that Would Track Charter Vessels in the Gulf 24/7

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.

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OPINION