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 $160,000 for lawyers of the New Civil Liberties Alliance, a non-profit legal foundation who represented lead plaintiff Allen Walburn, a Naples, Fla., charter operator and five other Gulf captains.
The appeals court Feb. 23 decision “struck down the VMS monitoring requirement implemented by the 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,” wrote John Vecchione, senior litigation counsel for the NCLA, in a Dec. 8 email to the captains.
“It’s going to have a far-reaching effect throughout the government,” Walburn told National Fisherman Friday. “They’ve been doing it to other people for years.”
NCLA lawyers are representing Rhode Island commercial herring fishermen in a similar case scheduled to be heard by the U.S. Supreme Court Jan. 17. Like the Gulf charter captains, operators of the Point Judith, R.I., vessels Relentless, Huntress and company Seafreeze Fleet contend a 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 $1,500 to install a VMS system on a boat and $75 in monthly operation costs. Moreover the requirement was an invasion of privacy – like making captains “wear an ankle bracelet” while fishing he says.
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.
“If the vessel will be operating as a charter vessel or headboat during the specified trip, the vessel owner or operator must also report details of the trip’s expected completion. Lastly, this final rule requires that a Gulf for-hire vessel owner or operator use NMFS-approved hardware and software with global positioning system (GPS) location capabilities that, at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS.”
“A competitor of mine could make a Freedom of Information Act request and find out where I’m fishing,” Walburn contends. 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 $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 “unfortunately I have not been able to find counsel to take the case for individuals or a class,” he wrote.
Writing for the appeals court in its Feb. 23 opinion, 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, and NMFS also “failed to respond to public comments expressing concerns of personal privacy violations stemming from GPS surveillance.”
