Josh Clemons

On April 24 the U.S. District Court for the Middle District of Florida in Tampa dismissed a suit by the Gulf Fishermen’s Association, a fishing advocacy group, challenging a federal rule that requires certain commercial fishing vessels to be equipped with vessel monitoring systems.

Background
On August 9, 2006, the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS, also known as NOAA Fisheries) issued a Final Rule to implement Amendment 18A to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Final Rule).1 Among the Final Rule’s mandates was a requirement that vessels, including charter vessels, with federal commercial permits for Gulf reef fish (which include snapper and grouper) must be equipped with NMFS-approved vessel monitoring systems, or VMS, beginning December 7, 2006.

VMS is a system by which a mobile transceiver on the VMS-equipped vessel sends the vessel’s exact latitude and longitude hourly via satellite to NMFS’ Office for Law Enforcement.#2 Under the Final Rule the unit must be on twenty-four hours a day, seven days a week. NMFS has sought to use VMS to help it ensure compliance with area-specific restrictions on reef fish that, for logistical reasons – the limited number of enforcement personnel, the sheer expanse of the restricted areas and their distance from shore - have been difficult to enforce in the past. The agency is obligated to keep the location information confidential, and will release it only to federal fishery management and enforcement agents, to the vessel owner, or pursuant to a court order. Vessel owners must purchase and install their own VMS, which cost between $3,500 and $3,800 for the unit, plus $480 to $660 in annual service fees.

On December 6 the agency extended the deadline to March 7, 2007, so that vessel owners would have more time to decide whether remaining in the reef fishing industry was worth the cost of compliance, and if they chose to comply, to purchase and install VMS.

The Lawsuit
On December 15 the Gulf Fishermen’s Association (Association), a non-profit commercial fishing advocacy group headquartered in St. Petersburg, filed suit in federal court to challenge the Final Rule. The Association pressed four claims for relief.3 Its first claim was that the Final Rule violated the Magnuson-Stevens Fishery Conservation and Management Act, which requires NMFS to “take into account the importance of the fishery resources to the fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.”4 The Association argued that the cost of compliance with the Final Rule would have extremely detrimental effects and that NMFS did not give due consideration to these effects.

The Association’s second claim was that the Final Rule was arbitrary, capricious, and an abuse of agency discretion in violation of the Administrative Procedures Act.5 The agency’s purpose in enacting the Final Rule was to crack down on illegal fishing in restricted areas; however, the Association asserted that the use of VMS would cast too wide a net, so to speak, because it would record the movement into restricted areas of all vessels, including those not breaking any laws.

The Association’s third claim was that the Final Rule failed to satisfy the procedural requirements of the Regulatory Flexibility Act, which requires an agency to perform a regulatory flexibility analysis when it promulgates a rule that will have significant economic impact on a substantial number of small entities (such as the commercial fishers represented by the Association).6 According to the Association, NMFS did not adequately explain how it would minimize the Final Rule’s economic impacts on the fishers or why it chose to require VMS instead of a different option, and did not fulfill the Regulatory Flexibility Act’s reporting and recordkeeping requirements.

Finally, the Association asserted that the Final Rule violated its members’ right to privacy under the Fourth Amendment of the U.S. Constitution, because the VMS would enable law enforcement to monitor vessel movement at all times even in the absence of probable cause to believe that a crime is being committed. The Association asked the court to declare the Final Rule unlawful.

The Court’s Decision
Unfortunately for the Association, time was not on its side. The Association filed suit four months after the Final Rule was published; however, as the court observed, legal challenges to rules passed under the Magnuson-Stevens Act must be filed within thirty days of publication. The fact that some of the Association’s claims were pursuant to other statutes was not enough to rescue them. Neither did the court endorse the Association’s argument that the amendments to the Final Rule, such as the December deadline extension, started a new thirty-day challenge period.

Conclusion
The court entered judgment in favor of NOAA and NMFS because the Association waited too long to file its lawsuit. The merits of the Association’s arguments were not addressed. Although it was unsuccessful in court, the Association may still advocate for its members’ interests by petitioning the agencies for new rulemaking on VMS.

Endnotes
1. 71 Fed. Reg. 45428 (Aug. 6, 2006).
2. This information on VMS comes from NMFS Southeast Regional Office’s VMS Frequently Asked Questions, available at http://sero.nmfs.noaa.gov/vms/vms.htm.
3. Gulf Fishermen’s Association’s Complaint for Declaratory and Injunctive Relief (Oct. 23, 2006)
4. 16 U.S.C. § 1851(a)(8).
5.  5 U.S.C. § 706(2).
6.  5 U.S.C. §§ 601-12.