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

November 3, 2021 | Reply in Support of Federal Defendants’ Cross-Motion for Summary Judgment
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November 2, 2021 | Federal Register: NMFS Is Delaying the Effective Date of 50 CFR 622.26 (b)(5) and 622.374(b)(5)(ii) Through (v) Until March 1, 2022
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October 13, 2021 | Plaintiffs’ Opposition to Defendants’ Motion for Summary Judgment and Reply in Support of Plaintiffs’ Motion for Summary Judgment
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October 13, 2021 | Plaintiffs’ Response to Defendants’ Counter Statement of Undisputed Facts
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October 4, 2021 | Petition to Amend the Effective Date of Amendments to §§ 622.26(b)(5) and 622.374(b)(5)(ii) through (v), published July 21, 2020 (85 FR 44005)
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September 24, 2021 | Federal Defendants’ Response to Plaintiffs’ Statement of Undisputed Facts and Counter-statement of Uncontested Material Facts
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September 24, 2021 | Federal Defendants’ Opposition to Plaintiffs’ Motion for Summary Judgment and Cross- Motion for Summary Judgment
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September 24, 2021 | Federal Defendants’ Cross-Motion for Summary Judgment
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August 11, 2021 | Plaintiffs’ Memorandum in Support of Summary Judgment
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August 11, 2021 | Plaintiffs’ Motion for Summary Judgment
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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

November 2, 2021 | NCLA Successfully Petitions NOAA to Delay Warrantless 24/7 Surveillance of Charter Boats in the Gulf

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.

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September 3, 2021 | Something Is Fishy in the Gulf: NOAA Forces Charter Boat Captains to Install ‘Anchor Bracelets’

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

August 12, 2021 | NCLA Seeks Summary Judgment in Class-Action Lawsuit over NOAA’s Boat Tracking Mandate

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 

June 11, 2021 | 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.

Download the full document

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.

Download the full document

OPINION