A lawsuit brought by several local charter boat companies has defeated a federal government regulation which would have required them to install tracking devices on their boats and transmit data about their trips to federal agencies. File photo by Nathan Mayberg

The U.S. Court of Appeals for the Fifth Circuit in Louisiana has struck down a U.S. Department of Commerce rule first proposed in 2018 which would have required the owners of charter boats to install 24-hour vessel monitoring systems. The court found the proposed surveillance to be a likely breach of the constitutional rights of charter boat captains.

The monitoring systems would have been required to be installed by charter boat captains at their own cost to continuously transmit their locations to government agencies at all times. The decision impacts dozens of charter boat captains around Southwest Florida as well as approximately 1,4000 charter boats on operation throughout the Gulf of Mexico.

The court, in a decision filed Feb. 23 found that the U.S. Government’s rule “likely violated the Fourth Amendment” of the U.S. Constitution for allowing for an unwarranted search and “committed multiple independent Administrative Procedure Act violations.”

A lawsuit challenging the rule was brought by the New Civil Liberties Alliance against the National Oceanic and Atmospheric Administration (NOAA), the U.S. Department of Commerce and National Marine Fisheries Service (NMFS).

“We are obviously very pleased,” New Civil Liberties Alliance attorney John Vecchione said. There was a concern on the part of the clients represented by Vecchione that the rule would lead to the monitoring of not just charter boat captains but recreational fishermen. “This (decision) stops that right in its tracks,” he said.

A lawsuit brought by several local charter boat companies has defeated a federal government regulation which would have required them to install tracking devices on their boats and transmit data about their trips to federal agencies. File photo by Nathan Mayberg

Vecchione said the monitoring of the boats wouldn’t have proven anything about any illegal fishing activities and said he thought the government wasn’t able to show why the monitoring was needed. In addition, the court found that the government erred in not presenting to the public before the public comment period ended, of a requirement under the rule for the number of passengers to be included.

The rule was proposed in 2018 under the Magnuson-Stevens Fishery Conservation and Management Act of 1976 and codified in 2020 by the Gulf of Mexico Fishery Management Council and South Atlantic Fishery Management Council. The Magnuson-Stevens Act creates fishery management councils that have jurisdiction in defined regions, the court stated in explaining its decision. The U.S. Department of Commerce has delegated regulatory authority to the National Oceanic and Atmospheric Administration, which regulates fisheries through the National Marine Fisheries Service.

An estimated 1,700 charter boat captains would be affected by the rule, including many in Lee County. Parts of the rule went into effect in 2021, while the vessel monitoring system requirement was delayed indefinitely.

The membership of the Gulf of Mexico Fishery Management Council and South Atlantic Fishery Management Council comprises the states of Florida, Georgia, Louisiana, Mississippi, Alabama, South Carolina and North Carolina.

Under the rule, charter boat captains were required to submit an electronic fishing report (or logbook) using federally approved hardware and software, for each fishing trip before offloading fish from that fishing trip.

A lawsuit brought by several local charter boat companies has defeated a federal government regulation which would have required them to install tracking devices on their boats and transmit data about their trips to federal agencies. File photo by Nathan Mayberg

Under the proposed rule in 2020, charter boat captains in the Gulf were required to notify the National Marine Fisheries Service (NMFS) prior to departing for any trip and declare whether they are departing on a for-hire trip or another trip type, and details of the expected completion. The vessel owners are also required to use NMFS-approved hardware and software with GPS location capabilities.

If leaving on a for-hire trip, the trip declaration requires the landing location for the end of the trip, and these landing locations must be added to any approved software before their use. Landing locations must be submitted to NMFS through the Landing Location Request form for verification.

The lawsuit filed by the New Civil Liberties Alliance claimed violations of the Bill of Rights through the Fourth Amendment, Fifth Amendment and Ninth Amendment due to warrantless trespassing as a Fourth Amendment violation, Fifth Amendment due process violations, and Ninth Amendment protections which provide freedom of movement, right to travel, rights to free enterprise, freedom from unreasonable governmental interference and right to privacy.

According to the July, 2020 federal register of the rules and regulations of the Department of Commerce and NOAA, the new rule is intended to “increase and improve fisheries information collected from federally permitted for-hire vessels in the Gulf” and “improve recreational management of the for-hire component” of fisheries in the Gulf.

One of the plaintiffs in the suit, Naples-based Capt. Allen Walburn of A & B Fishing Charters, said the regulation was a violation of the privacy of the charter boat captains.

A lawsuit brought by several local charter boat companies has defeated a federal government regulation which would have required them to install tracking devices on their boats and transmit data about their trips to federal agencies. File photo by Nathan Mayberg

“We’re ecstatic,” Walburn said of the ruling. “It’s a big victory.”

“The reason we were against this so much is it tracked us precisely where we were going,” Walburn said.

Walburn also cited the cost of the GPS units – which can run between $1,000 to $3,000 in addition to an estimated $60-100 monthly service charge.

In addition, Walburn said the charter boat captains were being asked to submit data about their boat travels through a cellphone application, how much they were charging for their charters and how much they were spending for fuel.

The suit contended that the rule confers virtually no benefit to charter boats as a way of monitoring fish stocks in the Gulf of Mexico over “cheaper and less intrusive methods.”

The court sided with the charter boat owners on the cost burden, stating in its decision “the expected costs associated with the GPS-tracking requirement are not “reasonably related” to its expected benefits.” The court found that the government failed to show “that such a device is “necessary and appropriate for the conservation and management of the fishery.”

Charter boat fishermen are limited in how many fish they can catch. The rule would have required that before a charter-boat owner take a boat out to sea, he or she must submit a trip declaration indicating the purpose of the trip, such as for-hire, fishing recreational, or non-fishing as well as other unspecified information as requested.

The government, in its filing, stated that the charter fishing industry needed to be regulated to protect local fisheries. If left unregulated, the fishing industry would pose a serious risk of overfishing and depleting a critical food supply. The court found that the threat did not outweigh the constitutional protections and that charter fishing represented only a small percentage of total fishing in the Gulf of Mexico.

“We have serious concerns that the GPS requirement violates the Fourth Amendment in this circumstance, given the Supreme Court’s instruction that members of the public have a “reasonable expectation of privacy in the whole of their movements,” the court stated.

In their decision, the Fifth Circuit Court ruled that the GPS data the government is seeking is intended to improve “the accuracy and reliability of fishery data by providing trip validation–in other words, corroborating whether a vessel has left the dock.” The court found that “charter-boat owners are already required to report all of the information that the Government says the GPA-tracking requirement is designed to collect. That is, before going on a trip, charter-boat owners must tell the Government the type of trip (fishing or otherwise), and if it is a fishing trip, they must also tell the Government where they are going, how long they expect the trip will take, and when and where they expect to return.”

In addition, the court stated in its decision “the record lacks any evidence that charter boat owners fail to accurately report their trips. Indeed, when asked at oral argument to identify one instance in which NOAA or NMFS documented inaccurate trip reporting, counsel for the Government failed to do so.”

Walburn, who has been in the charter boat industry since 1978, said he brought the suit because “I didn’t like being track” and being asked by the government to pay for the tracking devices. “Would you want a personal tracking device on your car?”

The U.S. Supreme Court had previously ruled against the right of the government to use tracking devices on cars in 2012 without a warrant. Walburn called the government’s rule to use the tracking devices on the charter boats “a warrantless search.”

Walburn said the information being tracked by the government from charter boats “shouldn’t be in the public domain.”

Joining Walburn in bringing the suit was Mexican Gulf Fishing Company, partially owned by Billy Wells; Capt. Kraig Dafcik, part owner of the Alabama with A&B Charters; Ventimiglia, L.L.C., owned by Frank Ventimiglia, doing business as Sanibel Offshore Fishing Charters; Fishing Charters of Naples, owned by Capt. Jim Rinckey; Capt. Joey D. Charter, Incorporated, owned by Capt. Joey Dobin.