The National Marine Fisheries Service must pay attorney fees for Gulf of Mexico charter captains who successfully challenged the agency’s requirement for them to pay for vessel monitoring systems.
The settlement approved by the U.S. Fifth District Court of Appeals calls for the U.S. Department of Commerce and NMFS to pay USD 160,000 (EUR 148,000) for lawyers of the New Civil Liberties Alliance, a nonprofit legal foundation who represented lead plaintiff Allen Walburn – a Naples, Florida, U.S.A. charter boat operator – and five other Gulf captains.
The appeals court’s 23 February decision “struck down the VMS monitoring requirement implemented by the U.S. Department of Commerce and the other defendants under the Administrative Procedure Act and strongly implied it was prohibited as an unreasonable search and seizure under the Fourth Amendment of the Constitution,” NCLA Senior Litigation Council John Vecchione said in an 8 December email to the captains.
“It’s going to have a far-reaching effect throughout the government,” Walburn told National Fisherman. “They’ve been doing it to other people for years.”
NCLA lawyers are also representing Rhode Island commercial herring fishermen in a similar case scheduled to be heard by the U.S. Supreme Court on 17 January. Like the Gulf charter captains, operators of the Point Judith, Rhode Island vessels Relentless, Huntress, and the processing firm Seafreeze contend an NMFS rule requiring them to pay for onboard fishery observers was unreasonable overreach by the agency, lacking specific authorization from Congress to impose those costs.
With the Gulf charter VMS rule, NMFS officials “said they needed to track where the fish were coming from,” said Walburn, who operates five boats fishing for bottom species like snapper and grouper, along with cobia and other Florida recreational species.
But Walburn contended the rule imposed unreasonable costs on operators, upwards of USD 1,500 (EUR 1,390) to install a VMS system on a boat and USD 75 (EUR 69) in monthly operation costs. Moreover, the requirement was an invasion of privacy – like making captains “wear an ankle bracelet” while fishing.
Among other details, the rule published in July 2020 specified that “if no fish are landed, the electronic fishing report must be submitted within 30 minutes after the completion of the fishing trip." This final rule also requires a Gulf for-hire vessel owner or operator to notify NMFS prior to departing for any trip and declare whether they are departing on a for-hire trip or on another trip type.
The rules also included specifications that vessel owners use GPS location capabilities archiving vessel position data during trips, and required vessel owners and operators to report details of each trip’s expected completion.
“A competitor of mine could make a Freedom of Information Act request and find out where I’m fishing,” Walburn said. In day-to-day operations, the rule required captains to “hail out” on departure, notify NMFS where they were fishing, and log in all their catch upon return to the dock, he said.
“I have no problem with fishing regulations, seasonal limits and all that,” said Walburn, who’s been fishing since 1978. “The information they were collecting had nothing to do with the fish we were catching.”
The Fifth District decision is now a precedent for the court, titled Mexican Gulf Fishing Company v. United States Department of Commerce.
The NCLA and its local counsel Gordon Arata Montgomery Barnett of New Orleans filed to recover attorney’s fees and the government agreed to settle for “approximately USD 160,000 in fees and costs,” Vecchione told the captains in the email. Some of the captains asked about recovering the costs of VMS from the government, but Vecchione said he has not been able to find counsel to take the case.
Writing for the appeals court in its opinion, U.S. Appeals Court Judge Jennifer Walker Elrod said that “in promulgating this regulation, the government committed multiple independent Administrative Procedure Act violations, and very likely violated the Fourth Amendment.”
Foremost, the “unambiguous language of the Magnuson-Stevens Act does not authorize the regulation,” Elrod said. NMFS also “failed to respond to public comments expressing concerns of personal privacy violations stemming from GPS surveillance," she wrote.
Repoting by Kirk Moore
Photo courtesy of the New Civil Liberties Alliance