MONITORED FISHERIES: WHAT ARE SOME FOLKS TRYING TO HIDE?

 

Fisheries management involves a number of interrelated variables. 

To manage fish stocks effectively, scientists must know, among other things, what fishermen are catching, they need to know how many fish are being caught and landed, they need to know the age and size of those fish they need to when fish are being caught, and they need to know where fish are being caught.

Those factors can be important both independently and when viewed in combination.

For example, back in the late 1970s, a cursory look at the striped bass fishery would have suggested that all was well.  Fishermen, both recreational and commercial, were still catching a lot of bass.  But once one looked past that basic fact, and started to investigate the composition of the catch, a problem quickly became manifest:  While there were still plenty of bigger fish—bass from 20 to over 50 pounds—being landed, smaller bass were becoming increasingly scarce.

Such scarcity boded problems for the future, that were reflected in the Maryland juvenile abundance index, which depicted a period of below-average recruitment that began in 1972 and continued through 1988.  The age and size data was there for everyone to see, and a few people did warn of what it portended, but the continuing high striped bass landings blinded both fishermen and fishery managers, leading to inaction and, eventually, the collapse of the Atlantic coastal migratory striped bass stock.

Even after the bass stock collapsed, there were pockets of good fishing for very large fish on Block Island and parts of Cape Cod, areas of the striped bass’ core summer range where there were still aggregations of fish, even when most of the rest of the coast was barren.  The fact that fish were being caught was not the most significant datum; what mattered was where they were caught and, by extension, where they weren’t.

Where fish are caught can matter for a number of reasons.  

While striped bass migrate along much of the Atlantic coast—an individual fish might winter off North Carolina, but spend much of the next summer off Maine—other species may be represented by localized stocks that overlap during the winter (or some other season), but do not mix on the spawning grounds.  Black sea bass off New England and the mid-Atlantic provide an example of such behavior. 

The New England Fishery Management Council breaks cod down into two stocks—Gulf of Maine and Georges Bank—which are, in theory, spatially and reproductively isolated.  A new study, released in June, paints a more complicated picture, and suggests that there may be as many as five reproductively isolated stocks, that are present in different locations throughout the year.

In either case, knowing when and where fish were caught is a prerequisite to effective management; placing onerous restrictions on black sea bass anglers up in New England, for example, might not yield the desired results if New Jersey adopts much weaker regulations that impact the same fish after they migrate to their wintering grounds near, and sometimes south of, Hudson Canyon.  Catching cod in the Gulf of Maine, and then saying you caught them on Georges Bank, might hamper biologists’ ability to effectively manage either local stock.

In some cases, fish aggregate to spawn in very specific locations.  Thus, the Gulf of Mexico Fishery Management Council decided to halt all fishing in two areas off Florida, known as “Madison-Swanson” and “Steamboat Lumps,” when gag grouper are typically spawning, in order to prevent fishermen from targeting gags when they are most vulnerable, and so place too much stress on the spawning stock.

Once again, where fish are caught—or not caught—is an important part of the management process.

Thus, it’s not unusual for the National Marine Fisheries Service to adopt regulations that require large-scale harvesters—commercial fishermen and sometimes for-hire recreational vessels—to carry equipment on board that records their whereabouts, and so allows fisheries managers—including law enforcement—to know when and where they are fishing, and by extension, where their catches are made.

Currently, NMFS requires fishermen who participate in about 30 different fisheries, in regions as different as New England, the Gulf of Mexico, Alaska, and the Marianas Islands in the western Pacific, to install vessel monitoring systems (VMS) on their boats, so that they may be tracked while out on the water.

As of January 5, 2021, the VMS requirement will be expanded to for-hire vessels—head boats and charter boats—that hold permits issued pursuant to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico and/or the Fishery Management Plan for Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region.

Few fishermen like to be subject to VMS requirements, first because the equipment—including a continuing subscription to a service that monitors their location—costs them money, and also because they don’t like the idea of being monitored by anyone; fishing is a business with a long tradition of secrecy, not only to keep competitors from knowing where fish are being caught, but also to keep the government from knowing when a fisherman, in pursuit of profits, takes one step—or maybe more than a few—over the line drawn by regulators.

In the case of the pending VMS requirement for for-hire vessels, that discontent went a bit further, with a handful of vessel owners and operators filing suit against the Secretary of Commerce, seeking to have the regulation invalidated.  

The plaintiffs are represented by a group called the New Civil Liberties Alliance, a group of attorneys and associated individuals who appear to be philosophically opposed to the administrative branch of government and the regulations that it promulgates.  On the home page of its website, such Alliance proclaims that

“NCLA views the administrative state as an especially serious threat to constitutional freedoms.  No other development in contemporary American law denies more rights to more Americans.  Although Americans still enjoy the shell of their Republic, there has developed within it a very different form of government—a type, in fact, that the Constitution was designed to prevent.  This unconstitutional administrative state within our U.S. government is the focus of NCLA’s concern.  NCLA urges Americans to recognize the administrative threat and join our civil liberties movement against it.”

NCLA holds itself out to be a non-profit organization.  A quick look at its IRS Form 990 for 2018—the most recent such form available--suggests that it does not charge any legal fees to those it represents, but instead receives all of its income—a little under $3 million in each of 2017 and 2018—from grants, gifts, donations, etc., although it provides no indication of where such grants, donations and similar funding comes from.

So, in return for what appears to be free legal representation, the plaintiffs in Rivers End Outfitters v. Ross are basing their regulatory challenge on a series of arguments questioning the constitutionality of the rule, which claim that it runs afoul of the 4^th Amendment’s prohibition of warrantless searches, the 5^th Amendment’s protections against takings of property, and various alleged 9^th Amendment protections, including the freedom to travel, right to privacy, etc.

NCLA has made some of the same arguments in challenges to a municipality’s use of automated license plate readers,  to an executive order in New Jersey that allows residential tenants to have their security deposits credited against the amount of rent that they owe, and to Massachusetts’ governor’s powers to adopt emergency measures to combat COVID-19.

In the Rivers End Outfitters matter, NCLA has claimed that

“the U.S. Department of Commerce, the National Oceanic and Atmospheric Administration (NOAA), the National Marine Fisheries Service (NMFS), and the respective agency heads in their official capacities…are mandating an unlawful and unconstitutional 24-hour GPS surveillance regime without a warrant.

“…The rule, which goes into effect on January 5, 2021, affirms that owners or operators of charter vessels or for-hire vessels in the Gulf of Mexico must submit an electronic fishing report using NMFS-approved hardware and software with GPS location capabilities that ‘at a minimum, archive vessel position data during a trip for subsequent transmission to NMFS.’  This rule also requires that captains pay for the vessel equivalent of an ankle bracelet.  NCLA contends that these agencies cannot issue a regulation that would monitor law-abiding captains more closely than many prisoners on parole.

“…NCLA argues that warrantless access to GPS information of a person’s locations and movements in blatantly unconstitutional.  It amounts to an unreasonable search violating the Fourth Amendment and violates Ninth Amendment rights, including the right to privacy, freedom of movement, free enterprise, freedom from unreasonable government interference, and the right to travel.  Since plaintiffs are the sole owners of the data produced by their newly purchased devices, the seizure of it without any cause also violates the Due Process Clause of the Fifth Amendment.”

Predicting what a court is going to do is always a fool’s errand, as judges can unexpectedly favor what might appear, to others, as a fruitless argument, and reject what seems to be settled law.  But established precedent seems to militate against the plaintiffs in Rivers End Outfitters succeeding.

The strongest precedent cited in support of the plaintiffs’ arguments deals with a private citizen being wrongly subject to 24-hour clandestine GPS surveillance in the ordinary course of that person’s life, not with a highly regulated industry such as for-hire fishing being required to knowingly provide information as a condition of being granted the permit required to fish.

Looked at from the perspective of a regulated fisherman, the arguments in Rivers End Outfitters look a lot weaker.

Goethels v. Pritzker, decided by the U.S. District Court for the District of New Hampshire, is instructive in that regard.  Although Goethels is only a trial-level decision, and slightly off-point because it deals with a regulation requiring on-board observers and not VMS, it cites higher-court cases that summarizes the law of monitoring vessels very well, in a way that should bear very directly on the Rivers End Outfitters decision.  

In deciding that a regulation requiring a New England groundfishing vessel to carry observers was valid, the court noted that

“Plaintiffs first argue that the presence of at-sea monitors amounts to an unconstitutional warrantless search.  The court disagrees.  Even assuming that ASM presence constitutes a search—an assumption the Secretary [of Commerce] accepts only for purposes of argument—warantless administrative searches of closely regulated industries are valid.  The test for determining whether an industry is ‘closely regulated’ is whether the regulatory presence is ‘so pervasive that business owners cannot help but know that their commercial properties may be periodically inspected for specific purposes.  So it is here.

“Given the closely regulated nature of commercial fishing, the ASM ‘searches’ are reasonable within the meaning of the Fourth Amendment if the government has a substantial interest in regulating the business, the monitors’ presence furthers this interest, and the regulations offer notice to the regulated.  Here, all three criteria are met.  Plaintiffs do not seriously dispute the government’s interest—as expressed by the [Magnuson-Stevens Fishery Conservation and Management Act]—in protecting fishery resources.  Nor do they dispute that ASMs further that interest.  And finally, the explicit provisions of [Magnuson-Stevens] give fishermen notice ‘that the government will conduct periodic inspections for specific purposes.’  [citations omitted]”

What can be said of on-board monitors can be said of a VMS; if anything, the electronic VMS is far less obtrusive than a person physically inspecting and recording one’s catch in real time (the only difference is that the plaintiffs in Rivers End Outfitters did not agree that the VMS materially furthered the government’s interests in well-managed fisheries).  Thus, if one had to handicap the plaintiffs’ odds of prevailing in the present case, it would be difficult to give them a better chance than the plaintiff in Goethels.

Still, it’s understandable why NCLA is making such arguments.  Its sole purpose is to challenge and try to weaken the “administrative state,” and given how deeply the authority of administrative agencies is rooted in U.S. jurisprudence, the only possible way it can achieve its goal is to bet on the long shots, and hope one eventually beats the odds.

But it’s harder to understand why the plaintiffs would be so willing to bet on what is almost certainly going to be a losing horse.

Unless, of course, they have something that they want to hide.  If that was the case--and this is pure specualtion, not a claim of fact--then backing a long shot would give them a better chance to do that than taking no shot at all.