A group of five Maine lobstermen are suing Maine Department of Marine Fisheries (MDMR) Commissioner Patrick Keliher over new rules mandating that all federally permitted lobster boats be equipped with a 24-hour electronic location monitoring system.
These mandated devices — provided by the MDMR — identify a vessel’s location every sixty seconds while in motion and once every six hours when stationary. Using one of these devices, a boat’s position is able to be accurately determined within 100 meters, or 328.1 feet.
According to the lobstermen, this new requirement violates the Fourth and Fourteenth Amendments, as they allege that it jeopardizes their Constitutionally-protected rights to privacy and due process.
The lobstermen filed their lawsuit on January 2, 2024, challenging the rule, which took effect two weeks prior on December 15, 2023.
Back in March of 2022, the Atlantic States Marine Fisheries Commission (ASMFC) updated its official guidance — referred to as a fisheries management plan (FMP) — to require continuous electronic tracking devices be installed on all federally permitted lobstering vessels.
Because of this, in September of last year, the MDMR initiated rulemaking procedures to bring state regulations into agreement with the new ASMFC guidance.
The electronic tracking mandate at the heart of this legal challenge dates back to a one-year pilot program that was started in February of 2018 that required that all federally permitted vessels self-report a handful of data points.
According to the filing, this pilot program only required lobstermen to report information such as the National Marine Fisheries Service statistical area, lobster management area, and 10-minute square level of their trips — not their precise location or route.
Unlike the minute-by-minute data shared by the newly required tracking devices, the information collected as part of the pilot program was far less specific, indicating only the generalized area in which a given trip was conducted.
The ASMFC contends that the more granular-level data that will be made available to them through these tracking devices is a necessary upgrade, the lobstermen argue otherwise in their complaint.
“The MDMR Rule’s requirement of a twenty-four hour a day vessel tracker is an unreasonable search and seizure and a violation of due process under the Fourth and
Fourteenth Amendments to the United States Constitution,” the lawsuit alleges.
In addition to the tracking itself, the lobstermen also raised concerns over the storage and potential dissemination of the data collected by the monitoring devices, as the ASMFC’s guidance “contains little to no information on how this data will be protected from unauthorized use and disclosure.”
“There are no references to encryption, and there is no data governance policy detailing what the specific intended use of the data is,” the complaint contends.
The lobstermen also allege that the devices supplied by the MDMR give them “no ability to view the reporting dashboards associated with the trackers or to agree to terms of service that describe how the data from the tracking device on their vessels will be collected, transmitted, stored and used.”
Concerns were also raised in the complaint that the ASMFC’s guidelines — upon which MDMR’s regulations were based — allegedly do “not place any upward limits on how sophisticated the data collection can be, i.e., whether the data collected is limited to spatial data or whether other types of data such as voice, speed, and other data categories can be collected.”
The lobstermen also argue that MDMR’s rule does sufficiently outline prohibited conduct and the associated penalties, thereby making the case that it “is void for vagueness in that it violates the equal protection guarantees” of both the United States and Maine constitutions.
The lawsuit also accuses MDMR’s rule of violating the Maine Administrative Procedures Act (APA) for being “arbitrary and capricious.”
According to the filing, the lobstermen voiced their concerns to the Sustainable Maine Fishing Foundation (SMFF) who reached out on their behalf to MDMR Commissioner Keliher, but as of January 2, they have not yet received a formal response.
The five lobstermen who filed the lawsuit — Frank Thompson, Joel Strout, Jason Lord, Christopher Smith, and Jack Cunningham — are being represented by attorneys Thimi R. Mina and Alfred C. Frawley IV, of Portland’s McCloskey, Mina, Cunniff & Frawley.
Earlier this week, the law firm issued a statement arguing that MDMR’s new regulations “present an immediate and serious risk to the constitutionally protected privacy interests of Maine lobstermen.”
“While the Plaintiffs and [SMFF] oppose the manner in which MDMR proposes to utilize, monitor and enforce the tracking program,” the statement continues, “they remain supportive of appropriate regulatory measures, by MDMR and federal authorities, that engage in dynamic management of the lobster fishery, including efforts, some of which remain in active developmental stages, to monitor the ocean ecosystem and protect both the lobster fishery and the other wildlife that inhabit it.”
“Unfortunately, the recent rules enacted by MDMR have conflated legitimate and salutary objectives of a monitoring program with what the Plaintiffs contend are patently unconstitutional encroachments on the personal and commercial privacy interests of Maine lobstering men and women,” the law firm concludes.
MDMR Commissioner Keliher has also issued a statement in response to the lawsuit, suggesting that the lobstermen’s claim has “no merit” and that their opposition to the rule is counterproductive.
“It’s ironic that a few members of an industry which has voiced a strong opinion that Maine needs to do more to protect this fishery are now resisting efforts to gather the data necessary to help defend their interests in the long run,” said Keliher.
“I believe their arguments have no merit,” Keliher said. “Data from the trackers is a critical component of the Atlantic states’ effort to ensure that the lobster industry is not burdened with management decisions based on assumptions derived from insufficient data.”
The lobstermen are seeking both injunctive and declaratory relief from the United States District Court for the District of Maine.
Among other things, they are asking the court to declare MDMR’s rule unconstitutional under the Fourth and Fourteenth Amendments, “void for vagueness,” and “arbitrary and capricious,” as well as to prevent the state agency from enforcing the rule “as presently formulated.”