National Fisheries' GPS Tracking Rule For Charter Boats Dead In The Water After Fifth Circuit Ruling

• Jurisdiction: United States,Federal
• Law Firm: Liskow & Lewis
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Disclosure & Electronic Discovery & Privilege, Constitutional & Administrative Law
• Author: Jessie Elizabeth Shifalo and Jonas S. Patzwall
• Published date: 15 March 2023

In its February 23, 2023 ruling in Mexican Gulf Fishing Co. v. United States Dep't of Commerce, the Fifth Circuit Court of Appeals struck down a National Fisheries Management Services ("NFMS") rule requiring owners and operators of charter boats in the 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 in the United States District Court for the Eastern District of Louisiana challenging the rule.

The government issued the subject rule pursuant to the Magnuson-Stevens Fishery Conservation and Management Act of 1976 ("MSA"). That law and subsequent amendments are codified at 16 U.S.C. chapter 38. The "NFMS rule" was published on July 21, 2020, and codified in NOAA regulations as follows: 50 C.F.R. ' 622.26(b)(5) (GPS-tracking requirement); id. ' 622.26(b)(1) (business-information requirement); and id. ' 622.26(b)(6) (trip-declaration requirement). In its decision, the Fifth Circuit found the GPS tracking requirement to be in violation of the Administrative Procedure Act and possibly the Fourth Amendment. The Rule(s) required the following:

1. Charter boat owners to install NFMS-approved Vessel Monitoring System hardware and software that transmit the vessel's location at least once per hour, 24 hours a day, every day of the year;
2. Charter boat owners to submit trip declarations and written reports to NFMS prior to offloading fish detailing all fish harvested and discarded, and any other information requested by NFMS including location fished, fishing efforts, information on the vessel, and information on the permit holders; and
3. Charter boat owners to disclose business data to NFMS including charter fees, fuel prices, estimated amount of fuel used and numbers of paying passengers and crew.

The appellants (captains of charter boats operating in the Gulf of Mexico with federal for-hire permits, and their companies) specifically challenged the GPS tracking requirement. The district court below originally rejected the fishermen's claims, finding that permanent GPS tracking was not a violation of the Fourth Amendment's guarantee against unreasonable search and seizure nor was it a violation of the nondelegation doctrine.

On appeal, the Fifth Circuit rejected the government's arguments, finding that GPS...