A federal judge in Bangor has ruled against five Maine lobstermen who sued Maine Department of Marine Fisheries (MDMR) Commissioner Patrick Keliher in January of this year over new rules mandating that all federally permitted lobster boats be equipped with a 24-hour electronic location monitoring system.
The ruling grants Commissioner Keliher’s motion to dismiss, thus rendering the lobstermen’s motion for a preliminary injunction moot.
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 their Constitutionally-protected rights.
The lobstermen filed their lawsuit on January 2, 2024, challenging the rule, which took effect two weeks prior on December 15, 2023.
In a Thursday ruling, Judge John Woodcock dismissed their case, in part citing jurisdictional issues, as the rule originated from the Atlantic States Marine Fisheries Commission (ASMFC).
Back in March of 2022, the 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.
Judge Woodcock indicated in his ruling that he was convinced by the MDMR’s argument that this tracking was not overly intrusive, as the lobstermen suggested, given that the industry is subject to strict standards in the name of conservation.
“The court must instead conclude that the Maine Department of Marine Resources’ collection system cannot be designed without the overaccumulation of both relevant and irrelevant data,” the decision states.
“Furthermore, the [DMR] commissioner has represented that the current level of data accumulation is scientifically inadequate to the task of lobster preservation,” the judge continued. “As the lobstermen work in a closely regulated industry, the court concludes that given the choice between the overaccumulation of data and the accumulation of inadequate data, the law favors preservation of the resource over the lobstermen’s rights of privacy.”
Based on Woodcock’s interpretation, the Fourth Amendment’s protections do not cover the lobstermen in this case because the policy and its implementation fulfilled the requirements of a legal test previously established by the Supreme Court.
While it was agreed upon by both parties that the government has a substantial interest in regulating the lobster industry, whether or not this rule is necessary to further that interest emerges as a point of contention.
Several pages of analysis from the judge supported his conclusion that the regulation is, in fact, “‘necessary’ to advance the long-term health and stability of the Maine lobster fishery.”
Despite ultimately siding with the MDMR Commissioner, he clearly states in his decision that the “lobstermen have legitimate privacy concerns about the degree of governmental intrusion from the MDMR Rule.”
“Lobstermen are not always fishing on their boats. They have their own lives,” Woodcock wrote. “Even though they use their boats to fish for lobsters, they also use these vessels to perform personal errands, to visit family and friends, and even in some cases to live on.”
“In the ordinary case, the government, whether state or federal, would not have the right to track a citizen’s location and to force a citizen to wear an electronic monitoring device or to attach one to a company car,” he said. “The degree of state intrusion would be inimical to the restraint on government guaranteed by the Fourth Amendment but for the [Supreme Court’s exception for] closely regulated industry.”
“The lobstermen’s concern is not limited to data collection,” he continued. “It extends to the use of the data and who will have access to it.”
“The Commissioner revealed at oral argument that the data would be available for others within federal and state government,” he explained. “The state could share this data with other governmental agencies, whose concerns are distinct from lobstering and could involve such areas as protections of the right whale and the siting of wind power facilities.”
“Moreover, although the Commissioner properly observed that Maine’s privacy and confidentiality laws apply to the collected data, the data, including personal location data, remain vulnerable to potential revelation through the legal process,” said Woodcock.
“Unlike virtually any other businessperson, data exist for Maine lobstermen that can confirm his or her precise location at a particular time, which may be discoverable and held against the personal interests of the lobsterman,” he said.
“What trips the MDMR Rule from unconstitutional to constitutional is that the MDMR has represented that the collection of data from lobster boats cannot be effective without collecting both personal and lobstering data,” Woodcock said, explaining his reasoning for siding with the MDMR. “Thus, the Court cannot conclude that the MDMR Rule is gratuitously invasive of lobstermen’s personal privacy.”
Attorney for the lobstermen Alfred C. Frawley IV told the Bangor Daily News that concerns remain over the tracking requirements.
“That’s one of our primary concerns, is that there’s a lack of transparency into how the information can be used, and in particular, what federal and state agencies this information can be shared with,” he said.
In a statement to the Maine Wire, Frawley indicated that the lobstermen intend to eventually appeal Woodcock’s ruling.
“While the Plaintiffs are disappointed with the outcome, we appreciate the time and effort the Court put into a very close decision,” Frawley said. “As Judge Woodcock indicated, this is an important issue that should ultimately be decided by the appellate courts, and the Plaintiffs intend to appeal the decision in due course.”
The MDMR did not immediately respond to a request for comment from the Maine Wire.
There is no need of this, period. Just more government overreach.
Pretty sure the Supreme Court just said unelected bureaucrats can’t make rules. I’d throw that crap overboard and tell them to talk congress if they want to pass a law.
Maybe the Governor should put monitors’ on the chinese growers of illegal pot?
Regulation? There is a Kaleidescope of ways to regulate a catch rather than watching the boats ever move. Also, even for the untrained legal mind know that a mandate is NOT law and therefore unenforceable by any Judge. Let us be honest although that word need not apply to the DMR & ” Ah Judge” The Angus King/Collins Billions behind offshore wind wants our fishermen & woman off the ocean. Greed driven tyranny and nothing more.
Hey Barney Look at this . They are all going to grid 23-5-75 . There must be a shit load of bugs there.
Let’s close that grid to anymore fishing and let the Chinese have it .
Cohen-Collins RINO?
Can’t the lobstermen make the devices portable? And when they go out fishing, put the device on a buoy go to work and pick the device up on their way back in? Or what happens if they just say no?