National Fisheries GPS Tracking Rule for Deadwater Charter Boats Fifth Circuit Decision – Privacy

March 15, 2023

Liskow & Lewis

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In its February 23, 2023 ruling in Mexican Gulf Fishing Co. v. United States Department of Commerce, the Fifth Circuit Court of Appeals reversed a National Fisheries Management Services (“NFMS”) rule requiring charter boat owners and operators to do so Gulf of Mexico to equip their boats with approved GPS tracking devices that would transmit the boat’s position to NFMS and the United States Coast Guard on an hourly basis. The decision, which overturned a lower court decision upholding the law, came after a group of charter boat operators filed a class action lawsuit challenging the rule in US District Court for the Eastern District of Louisiana.

The Government made the relevant rule under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (“MSA”). This statute and subsequent amendments are codified in 16 USC Chapter 38. The “NFMS Rule” was published on July 21, 2020 and codified in NOAA regulations as follows: 50 CFR § 622.26(b)(5) (GPS tracking requirement) ; ID. § 622.26(b)(1) (business information requirements); and ID. § 622.26(b)(6) (travel declaration requirement). In its decision, the Fifth Circuit found that the GPS tracking requirement violated the Administrative Procedures Act and possibly the Fourth Amendment. The rule(s) required the following:

  1. Charter boat owners must install hardware and software for an NFMS-approved vessel monitoring system that transmits the vessel’s location at least once an hour, 24 hours a day, every day of the year;
  2. Charter boat owners are required to provide NFMS with voyage declarations and written pre-fish unloading reports detailing all fish harvested and discarded and any other information requested by NFMS, including catch location, fishing effort, vessel information and permit holder information; And
  3. Charter boat owners are required to disclose business data to NFMS, including charter fees, fuel prices, estimated amount of fuel used, and number of paying passengers and crew.

The complainants (captains of charter boats operating in the Gulf of Mexico with federal charter permits and their companies) specifically challenged the GPS tracking requirement. The lower circuit court initially dismissed the fishermen’s claims, finding that the continued GPS tracking did not constitute a violation of the Fourth Amendment guarantee against unreasonable search and seizure, nor a violation of the doctrine of non-delegation.

On appeal, the Fifth Circuit rejected the Government’s arguments, finding that GPS tracking devices fall outside the scope of equipment that the MSA may require for use on recreational vessels and that the NFMS rule therefore has statutory authority conferred by the MSA in the application of the test instituted by the Supreme Court’s landmark decision in Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 US 837 (1984).

The Fifth Circuit found that no provision of the MSA requires 24-hour GPS tracking of charter boat operators. The government’s arguments that the GPS tracking requirement was necessary to enforce the law’s data collection provisions fell flat when the court found that the rules already required charter boat owners to report any information the government used for the GPS tracking request asserted intended for collection. The Fifth Circuit found that requiring GPS tracking devices imposed an expensive burden on charter boat operators and owners while doing nothing to encourage enforcement of any provision of the MSA. The court concluded that a GPS device, as required by the rule, is not “equipment” that the government can order use under the MSA and declined to include the “necessary and reasonable” exception in of the MSA, as the exception did not apply for the same reasons – the government could not demonstrate that it would get any meaningful benefit from the GPS data. MSA has only approved regulations mandating the use of certain devices that may be necessary to facilitate enforcement of the provisions of this chapter. The Fifth Circuit based its decision on the plain and clear language of the statute and eschewed any further analysis under Chevron.

The court then relied on a broad reading of the law and the ambiguity of the relevant provisions to consider possible violations of the Fourth Amendment. The Fifth Circuit found that for highly regulated industries, the threshold for whether a search is appropriate for Fourth Amendment purposes is much lower. New York v. Burger, 482 US 691, 702-03 (1987). However, the Court found that the competent district court erred in failing to examine whether the charter fishing industry was in fact strictly regulated. Rather, the court found that the district court had taken the industry too broadly, erroneously basing it on commercial fishing cases rather than recreational or charter fishing. Charter boat fishing is distinctly different from the commercial fishing industry and the government has not demonstrated that it is a tightly regulated industry or that it would pose a significant threat to the public if unregulated. The Fifth Circuit commented that it had “serious concerns that the GPS requirement violates the Fourth Amendment in these circumstances” but did not rule on the issue, having already removed the GPS tracking requirement from others for violating the APA , had not been found invalid on constitutional grounds .

Fishermen also had success arguing that the GPS tracking requirement was arbitrary and capricious because (1) it imposed a costly and pointless burden on charter fishing boat operators and (2) the NFMS failed to respond to comments, in who have raised concerns about privacy breaches related to GPS tracking. The APA directs the courts to overturn administrative actions that are “arbitrary, arbitrary, an abuse of power, or otherwise inconsistent with the law.” 5 U.S.C. § 706(2)(A). The court found that the insignificance of the benefits “disproportionately bears any relation to the substantial financial and privacy costs imposed,” making the rule arbitrary and unpredictable.

Ultimately, the Fifth Circuit reversed the portion of the NFMS rule that requires GPS tracking devices, but did not rule on whether the rule violated the Fourth Amendment rights of complainants. This judgment is another example of the trend for courts to narrowly view administrative and agency powers.

The content of this article is intended to provide a general guide to the topic. In relation to your specific circumstances, you should seek advice from a specialist.

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