A group of charter boat captains have won class-action status for their lawsuit challenging new reporting requirements, including a mandate requiring them to allow federal agencies to monitor 24-hour GPS devices on their boats.

The rule, which has since been delayed would affect an estimated 1,700 charter boat captains, including many in Lee County.

Parts of the new mandate went into effect in January, while the GPS requirement has been delayed indefinitely.

The captains oppose the use of the devices, which they would be required to purchase along with a subscription to a reporting app, as an infringement on their constitutional rights. The captains are being represented by the New Civil Liberties Alliance.

The suit has been filed against the National Oceanic and Atmospheric Administration, the U.S. Department of Commerce and National Marine Fisheries Service.

The lawsuit seeks to stop the enforcement of what the plaintiffs describe as an “unlawful and unconstitutional, industry-funded, warrantless 24-hour Global Positioning System (GPS) surveillance of location and movement of each vessel via the Vessel Monitoring System, targeting a select group of federally permitted charter boats and headboats in the Gulf of Mexico.”

The rule in question was codified in July of 2020 through the Gulf of Mexico Fishery Management Council and South Atlantic Fishery Management Council. The membership of the councils comprises the states of Florida, Georgia, Louisiana, Mississippi, Alabama, South Carolina and North Carolina.

Under the rule which took effect in January, the charter boat captains are required to submit an electronic fishing report (or logbook) using federally approved hardware and software, for each fishing trip before offloading fish from that fishing trip and within 30 days if no fish or landed.

Under the proposed rule in 2020, charter boat captains in the Gulf are required to notify the National Marine Fisheries Service prior to departing for any trip and declare whether they are departing on a for-hire trip or another trip type, and details of the expected completion. The vessel owners also are required to use NMFS-approved hardware and software with GPS location capabilities.

If leaving on a for-hire trip, the trip declaration requires the landing location for the end of the trip, and these landing locations must be added to any approved software before their use. Landing locations must be submitted to NMFS through the Landing Location Request form for verification.

The suit filed in federal court by the New Civil Liberties Alliance claims violations of the Bill of Rights through the Fourth Amendment, Fifth Amendment and Ninth Amendment due to warrantless trespassing as a Fourth Amendment violation, Fifth Amendment due process violations, and Ninth Amendment protections which provide freedom of movement, right to travel, rights to free enterprise, freedom from unreasonable governmental interference and right to privacy.

According to the July 2020 federal register of the rules and regulations of the Department of Commerce and NOAA, the new rule is intended to “increase and improve fisheries information collected from federally permitted for-hire vessels in the Gulf” and “improve recreational management of the for-hire component” of fisheries in the Gulf. Messages left with the NOAA were not returned.

The NMFS expects the new reporting requirements “to increase data accuracy, as well as provide more timely information of charter vessel activity,” according to the federal register.

Attorney John Vecchione, who is representing the New Civil Liberties Alliance and a handful of captains, including several in Naples, said the rule oversteps constitutional protections.

“If you want to monitor someone at all times, you have to convict them and put an ankle monitor on them,” Vecchione said. “It’s a huge violation of the constitution.”

Under the new rule, Vecchione said the government is now collecting data on where a charter boat captain is going to dinner or on a leisurely sightseeing activity with their significant other.

“Every time you leave the dock, you have to tell the government,” he said.

The new rules are too much for fishermen like Capt. David Hanson of Fishbuster Charters. Hanson is based in Bonita Springs and takes customers to Fort Myers Beach, Estero and Naples on fishing trips.

He said the new rule requires him to tell the government when they were leaving their docks, where they are going, what the purpose of the trip is, when they intend to return, how much gas they use, how much they pay for their gas, how many passengers they are taking, how much their passengers are paying, which fish they caught, how many fish they caught and which ones were released.

“I think it’s a little of Big Brother too much in the hand,” Hanson said. “They are wanting stuff they don’t need to know.”

The suit was started by Capt. Allen Walburn, who is based in Naples and runs A & B Fishing Charters.

“It’s a huge intrusion of my privacy,” Walburn said.

He said he started the suit originally due to the cost of the GPS units — which would run him an estimated $18,000 for six boats in addition to an estimated $75 monthly service charge.

Walburn said the government may offer to reimburse the boaters for the cost but said he still objected to the use of the GPS units.

“These devices track us 24 hours a day, seven days a week,” he said, “even if I am taking a moonlight cruise with my wife.”

Walburn said one fisherman thought it wasn’t a big deal.

“I said ‘why don’t you let me put GPS tracking on your wife?'”

Walburn said he also objected to the devices because if one were to fail, he said he might not be allowed to operate his business until it was replaced.

The suit contends that the rule confers virtually no benefit to charter boats as a way of monitoring fish stocks in the Gulf of Mexico over “cheaper and less intrusive methods.”

While Hanson isn’t a party to the lawsuit, he noted the Florida Fish and Wildlife Conservation Commission randomly calls him to check on where he travels to and has been subject to occasional visits by the FWC out in the water.

In addition to the cumbersome requests for information, Hanson had two major gripes with the rule — the first being for the cost of the GPS and subscription to government-approved reporting software. The GPS unit could cost an estimated $3,000, with the subscription running between $60-$100 a month.

The other main concern is that the GPS app would allow for other fishermen to see where they are going — a potential competitive disadvantage for successful fishermen who would be sharing data.

“We have spots we like to go to,” Hanson said.

Vecchione said commercial fishermen sued the federal government over a similar rule though ultimately settled. He said fishing charters are not impacting fisheries as much as the larger boats of commercial fishermen. Charter boat fishermen are limited in how many fish they can catch while commercial boaters are catching hundreds of fish at a time, if not more.

“We are not settling,” Walburn said.

The New Civil Liberties Alliance is mainly concerned with the collection of the private data of boaters.

“Let’s face it. The government hasn’t been too good about keeping your private information private lately,” Vecchione said.