Maine lobstermen's Fourth Amendment case flounders at First Circuit

BOSTON (CN) — The First Circuit Court of Appeals brushed aside privacy concerns raised by lobstermen in a Fourth Amendment lawsuit and on Wednesday upheld a lower court ruling that dismissed the case.

Implemented in 2022, an addendum to the American Lobster Fishery Plan requires all lobster boats to install GPS tracking devices that remain active at all times, including when the boat is being used for recreational or noncommercial purposes.

The regulation includes a “ping” requirement that necessitates an update on any lobster boat’s position every minute while it is at sea and every six hours when it is docked.

The devices cannot be turned off and are also capable of recording audio, although Maine has denied it uses that feature.

Five lobstermen, including lead plaintiff Frank Thompson, sued the state in federal court and claimed the tracking devices were an unreasonable search under the Fourth Amendment.

U.S. District Judge John Woodcock Jr., a George W. Bush appointee, granted Maine’s motion to dismiss in November 2024 but urged the lobstermen to appeal to the First Circuit for a definitive ruling.

Woodcock determined lobster fishing is a “closely regulated industry” that necessitates the sacrifice of some privacy rights as far as the lobstermen are concerned, and the appeals court agreed.

The panel, which heard arguments in July of this year, applied the reasonableness test established by the Supreme Court in the 1987 case New York v. Burger , which entails a three-step methodology to analyze administrative searches in closely regulated industries.

Thompson and the other lobstermen argued nonstop monitoring was unreasonable and unnecessary for the state to achieve its goals of sustainability and conservation, but the appeals court disagreed.

“Thompson takes issue solely with the method of search imposed by the rule — constant GPS tracking when a vessel is in the water. This interpretation turns a deaf ear to the music of the Burger test: it is a limited exception to the Fourth Amendment’s warrant requirement in closely-regulated industries where the regulatory scheme wouldn’t work without warrantless searches, and the scheme provides the functional equivalent of a warrant,” Senior U.S. Circuit Judge O. Rogeriee Thompson said.

Thompson, a Barack Obama appointee, emphasized the lobstermen seek less invasive tracking measures but ones that would nonetheless constitute warrantless searches.

“With elusive (but nevertheless very important) goals such as conservation and sustainability, it would be futile to imagine what level of government conduct would be permissibly ’necessary’ to achieve them,” she said.

Thompson and the rest of the panel agreed Maine’s tracking of lobster boats is crucial to allow the state to collect data about not only harvests and the health of the lobster population but also to assist federal whale regulators to reduce the number of marine mammals caught in fishing nets.

The lobstermen also argued the amount of data collected by the state needed to be more narrowly tailored to satisfy the Burger test, and while the panel appreciated the “unique” nature of GPS monitoring raises interesting questions, it ultimately sided with the state.

“Minimally intrusive, mindless tracking devices remove discretionary judgment calls from the equation entirely, alleviating the concern of any intrusive government officials overstepping their authority. But, in exchange, tracking devices engage in a constant search anytime the predetermined vessels are in the water, testing the limits of the time restrictions considered in the Burger test,” Thompson said.

The clarity of the timing of searches conducted via GPS monitoring and the fact they are required across the entire lobster industry led the panel to affirm their constitutionality and dispel notions of an “Orwellian picture” suggested by Thompson and the other lobstermen.

“Maine lobstermen may raise or haul their traps at any time. … And while Thompson frames the rule as a ‘perpetual, technology-driven, and omnipresent search,’ it only applies to the vessels of federally-licensed lobstermen when they are in the water, and only at a near-constant rate while the vessel is moving.

“Any other ’time limit’ would frustrate the regime’s design; lobsters are caught in the water and thus lobstermen need to be tracked while they too are in the water. So, the timing and frequency of the searches here, in the context of the statutory scheme, are sufficiently akin to a warrant, as required,” Thompson said.

U.S. Circuit Judges Lara Montecalvo and Seth Aframe, both Joe Biden appointees, also sat on the panel.

Neither party immediately responded to requests for comment.

Follow @kkoeninger44