approving government inspection of fishing vessels for violations of the Marine Mammal Protection Act, but noting that the regulation does not authorize searches of the persons, personal effects, or living quarters of the Captains and their crews, and that such searches would have to be justified independently under the fourth amendment
How later courts described this case
- approving government inspection of fishing vessels for violations of the Marine Mammal Protection Act, but noting that the regulation does not authorize searches of the persons, personal effects, or living quarters of the Captains and their crews, and that such searches would have to be justified independently under the fourth amendment
- referring to a similar argument as a “novel constitutional proposition” and determining that “[t]he law is to the contrary”
Written by the judges who cited it.
The opinion
NELSON, Circuit Judge,
concurring:
If hard cases make bad law, I fear the result of cases such as this. I write specially to reveal the extraordinary difficulties I find in this case, and to explain its limited applicability.
First, I would make explicit that the search involved here is overwhelmingly intrusive. Stationing an observer on a small boat for months at a time is both a search and a massive invasion of privacy. Thus, when I balance the need for government regulation with the degree of intrusion in this ease, I find both sides of the scale weighted heavily. I would not simply “assume arguendo” that this is a search, but would call it by its name and treat it accordingly.
Warrantless searches are presumptively unreasonable. See, e.g., Camara v. Municipal Court, 387 U.S. 523, 528-29 , 87 S.Ct. *768 1727, 1730-31 , 18 L.Ed.2d 930 (1967). The pervasively regulated industry exception is narrowly crafted, and should be limited as much as possible. See See v. City of Seattle, 387 U.S. 541, 543 , 87 S.Ct. 1737 , 18 L.Ed.2d 943 (1967). It is only because I view a commercial fishing vessel to be a workplace (unlike, say, a house boat or a recreational boat) that I am willing to apply the exception here. Even then, however, I am wary of permitting warrantless searches of residences that double as workplaces. But for the unique inaccessibility of ships at sea, I would not permit a warrantless search. See United States v. Villamonte- Marquez,-U.S.-, 103 S.Ct. 2573 , 77 L.Ed.2d 22 (1983).
Second, I write to emphasize the magnitude of the governmental interest involved in this case. If the world loses genetic diversity, it has truly suffered irreparable harm. Marine mammals have long been threatened by the onslaught of technology; if we must take drastic steps to avoid further encroachment, so be it.
Last, I am struck by the precautions the government has taken to limit the intrusiveness of the observer program. The regulatory scheme is detailed; the inspectors can report about porpoises and nothing more; absolutely no alternative method of enforcement exists. Under these circumstances, I hesitantly concur. Were the situation less compelling in any respect, I would not.