Petition for Writ of Certiorari — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

i

TABLE OF CONTENTS

Page

U.S. Court of Appeals for the First Circuit,

No. 25-1007, Opinion,

filed November 18, 2025 ...................................... 1a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW,

Order on Motion to Dismiss and

Motion for Preliminary Injunction,

filed November 21, 2024 .................................... 31a

U.S. Const. amend. IV .......................................... 135a

Atlantic States Marine Fisheries Commission

Addendum XXIX to Amendment 3 to the

American Lobster Fishery Management Plan;

Addendum IV to the Jonah Crab Fishery

Management Plan, March 2022 ...................... 136a

State of Maine Department of Marine Resources

Chapter 25: Lobster and Crab Regulations,

Chapter 25.98 Electronic Tracking Requirements

for Federally Permitted Lobster and Jonah Crab

License Holders, December 15, 2023 ............... 150a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW,

Complaint for Declaratory and

Injunctive Relief, filed January 2, 2024 .......... 156a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW, Declaration of

Frank Thompson, Exhibit B to Motion

for Preliminary Injunction,

filed January 12, 2024...................................... 190a

ii

State of Maine Department of Marine Resources

Notice of Agency Rule-Making Adoption,

Chapter 25.98 Electronic Tracking Requirements

for Federally Permitted Lobster and Jonah Crab

License Holders, dated March 1, 2024 ............ 196a

Appendix 1a

Filed November 18, 2025

United States Court of Appeals

For the First Circuit

____________________________

No. 25-1007

FRANK THOMPSON,

Plaintiff, Appellant,

JOEL STROUT; JASON LORD; CHRISTOPHER

SMITH; JACK CUNNINGHAM,

Plaintiffs,

v.

CARL WILSON, in their official capacity as

Commissioner, Maine Department of

Marine Resources,

Defendant, Appellee.

__________________________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

____________________________

Before

Montecalvo, Thompson, and Aframe,

Circuit Judges.

____________________________

Edward M. Wenger, with whom Caleb Acker and

Holtzman Vogel Baran Torchinsky & Josefiak PLLC,

were on brief, for appellant.

Valerie A. Wright, Assistant Attorney General,

with whom Aaron M. Frey, Attorney General, Thomas

A. Knowlton, Deputy Attorney General, and Jack

Appendix 2a

Dafoe, Assistant Attorney General, were on brief, for

appellee.

Sean H. Donahue, with whom David T. Goldberg,

Donahue, Goldberg & Herzog, Russell B. Pierce, Jr.,

and Norman Hanson DeTroy, LLC, were on brief, for

Atlantic States Marine Fisheries Commission, amicus

curiae.

Andrew C. Mergen, Sommer H. Engels, Rosa

Hayes, Shannon Nelson, Aaron Kleiner, Riley Pfaff,

Spencer Weisner, and Emmett Environmental Law &

Policy Clinic, Harvard Law School, on brief for

Environmental and Marine Law Scholars, amicus

curiae.

Erica A. Fuller, Chloe C. Fross, Sarah Shahabi, and

Conservation Law Foundation, on brief for

Conservation

Law

Foundation

and

Ocean

Conservancy, amicus curiae.

__________________________

November 18, 2025

__________________________

THOMPSON, Circuit Judge. According to New

England legend, Maine law once restricted the

amount of lobster that could be fed to prisoners before

it was considered cruel and unusual punishment. Our

Nation’s perspective on these succulent crustaceans

has certainly changed since those early colonial days,

but laws related to the American Lobster remain on

Maine’s books today. Such is the topic of the present

appeal: a Maine Department of Marine Resources

(“MDMR”) Rule that requires all Maine lobstermen 1

1 Just as the district court’s opinion and the parties’ briefing,

we note “lobstermen” is a gender-neutral term. See Maine

Lobster Community Alliance, A Lobstermen is a Lobstermen,

Appendix 3a

who hold federal lobster fishing permits to install an

electronic tracking device on their vessels and share

their location data whenever those vessels are in the

water.

After the MDMR Rule went into effect, appellant

Frank Thompson and a group of Maine lobstermen

filed suit in the United States District Court for the

District of Maine seeking to enjoin the MDMR Rule

and have it declared unconstitutional as per the

Fourth Amendment’s unreasonable searches and

seizures prohibition. Following a motion to dismiss

from the Commissioner of the MDMR (whom we will

refer to in this opinion generally as “Maine”), the

district court held that the lobstermen had failed to

state a claim for which relief could be granted.

However, before dismissing Thompson and the

lobstermen’s claim, the district court encouraged

them to appeal their Fourth Amendment challenge to

our court for an authoritative ruling. They did, and we

respond to this request head on. In doing so, we affirm

the district court’s dismissal.

I

Because this appeal follows a motion to dismiss, we

will pull our facts from Thompsons’s complaint, draw

all reasonable inferences in Thompson’s favor, and

consider any materials fairly incorporated in the

complaint or otherwise subject to judicial notice

(namely the MDMR Rule we have looked up for

ourselves). See, e.g., Lowe v. Mills, 68 F.4th 706, 711,

713-14 (1st Cir. 2023).

Regardless

of

Gender,

(July

7,

https://www.mlcalliance.org/post/a-lobsterman-is-alobsterman-regardless-of-gender,

[https://perma.cc/8DHC-V49M].

2023)

Appendix 4a

(A)

Our system of dual federalism has established a

complex and shared regime of federal and state law to

ensure the protection and continuous vitality of the

Nation’s fisheries.2 Along the Atlantic coast,

individual states like Maine regulate the fishery

happenings within three nautical miles of their

shores, while the National Marine Fisheries Service

(a sub-agency of the National Oceanic and

Atmospheric

Administration)

handles

waters

extending 200 nautical miles from the outer boundary

of state waters (an area known as the exclusive

economic zone or “EEZ”). See generally Me. Stat. tit

12, § 6001(6); 16 U.S.C. §§ 1801(b), 1802(11).

Fish (often along with their pursuers) tend to freely

move about the open ocean, making regulation subject

to clearly marked boundaries often impracticable.

That said, protection of these aquatic resources

remains crucial. To help combat this natural fishshifting dilemma, fifteen states and the District of

Columbia exercise joint regulatory authority through

the Atlantic States Marine Fisheries Commission

(“ASMFC” or the “Commission”). See generally 16

U.S.C. §§ 5101, 5102(3). Federal law encourages the

Commission to draft and adopt fishery management

plans (“FMPs”) that specify actions to be taken by

member states to protect coastal fishery resources.

See generally id. §§ 5102(1), 5104(a)(1). Once an FMP

is promulgated, federal law then requires member

2 While we only recap the statutes and regulations essential

to our analysis, the district court provided an in-depth summary

of the entire statutory and regulatory backdrop for the MDMR

Rule, which the curious reader may access. See Thompson v.

Keliher, No. 1:24-cv-00001, 2024 WL 4851243, at *2-9 (D. Me.

Nov. 21, 2024).

Appendix 5a

states to “implement and enforce” it. Id. § 5104(b)(1);

see generally R.I. Fishermen’s All., Inc. v. R.I. Dep’t of

Env’t Mgmt., 585 F.3d 42, 46 (1st Cir. 2009) (outlining

the history of the Commission and its shift to

compulsory FMPs). In the state of Maine (an ASMFC

member state), the MDMR regulates state waters

subject to the Commission’s FMPs. See Me. Stat. tit.

12, §§ 4651-56.3

So, to summarize what we’ve covered thus far, the

Commission creates an FMP to preserve fishery

resources, and the MDMR promulgates rules to adopt

and enforce, at a minimum, the requirements of the

FMP. See Medeiros v. Vincent, 431 F.3d 25, 27-28 (1st

Cir. 2005) (abrogated on other grounds) (describing

the relationship between the Commission and state

regulators in the context of the American Lobster

FMP); see also 50 C.F.R. § 697.3(c) (requiring a federal

lobster fishing license holder to adhere to the more

restrictive regulation where different). With this

backdrop in place, we can start narrowing down to the

specifics of this case.

In March 2022, the Commission published an

addendum to its existing American Lobster FMP

entitled “Addendum XXIX to Amendment 3 to the

American Lobster Fishery Plan; Addendum IV to the

Jonah Crab Fishery Management Plan.” The

Addendum’s primary purpose is to reduce the risk of

North Atlantic right whales from getting entangled in

fishing lines. In addition to protecting the right

whales, the Addendum seeks to: (1) improve

information available to fishery managers and stock

3

Maine participates in the ASMFC through three

representatives, one being the active MDMR Commissioner. Me.

Stat. tit. 12, § 4652.

Appendix 6a

assessment scientists; (2) support the development of

offshore renewable energy in U.S. waters; and (3)

improve the efficiency and efficacy of fishery

management and offshore enforcement efforts in the

EEZ.

To pursue these goals, the Addendum requires

member states to promulgate rules requiring

federally permitted lobstermen to install electronic

tracking devices that transmit location data using a

global positioning system (“GPS”) on board their

vessels by December 15, 2023. The required tracking

devices must remain powered and transmit data at all

times the vessel is in the water, including when a

vessel is docked or being operated for personal use.

The Addendum further specifies that compliant

tracking devices must have a “ping rate” of once per

minute, meaning that the tracker will collect data on

a vessel’s longitude and latitude once every minute.

Maine timely complied with Addendum XXIX by

promulgating the MDMR Rule on September 13,

2023. 13-188 C.M.R. ch. 25, § 98 (2023).

The MDMR Rule adheres to the requirements of the

Commission’s Addendum and makes some additions.

In essence, those additions make it unlawful for a

federally permitted lobstermen to fish or possess

lobsters without having an approved tracking device

aboard their vessel; to remove or tamper with the

tracking device absent approval from the MDMR; and

to operate their vessel without the tracking device

installed and powered at all times (with different

power source requirements for vessels in operation

compared to docked). See id. § 98(C).4 In November

4 The MDMR Rule does not list any specific punishments for

failure to comply with its requirements. Before the district court,

Appendix 7a

2023, the MDMR began sending permitted

lobstermen Particle TrackerOne devices to comply

with the MDMR Rule.5

(B)

The original plaintiffs in this case -- Thompson and

several Maine lobstermen subject to the MDMR Rule 6

-- filed a federal suit against the Commissioner of the

MDMR in his official capacity, which challenged the

adoption and enforcement of the MDMR Rule on three

grounds.7 First, they alleged the MDMR Rule violated

the Fourth Amendment’s prohibition on unreasonable

searches and seizures, as applied to the states by the

Fourteenth Amendment. Second, they claimed the

MDMR Rule violated their equal protection rights

pursuant to the U.S. Constitution and the Maine

Constitution. And third, they alleged the MDMR Rule

was arbitrary and capricious contrary to the

protections of the Maine Administrative Procedure

Act.8 Not long after the lobstermen filed their

complaint, Maine moved to dismiss under Federal

Maine stated that violations of the MDMR Rule are treated like

any other violation of an MDMR regulation with the possibility

of a civil fine of not less than $100 and the suspension of the

individual’s license. Thompson’s appellate arguments do not

draw on these potential penalties.

5 The MDMR presumably selected these tracking devices

because they comply with the Addendum’s standards and

transmit GPS location data at a ping rate of once per minute.

6 Only Thompson has appealed to our court.

7 The named party in this appeal, Commissioner Wilson, has

been substituted for the previously named party, Patrick

Keliher, who held the office of MDMR Commissioner during the

district court proceedings.

8 Only Thompson’s Fourth Amendment claim has been

presented on appeal. Accordingly, we focus our attention there

and say no more about the other claims.

Appendix 8a

Rule of Civil Procedure 12(b)(6). The district court

heard argument from the parties on this motion and

subsequently entered a remarkably thorough decision

wherein the court granted Maine’s motion in full.

In granting Maine’s motion, in relation to

Thompson’s Fourth Amendment challenge, the

district court specifically held that the MDMR Rule

was not “gratuitously invasive of lobstermen’s

personal privacy” and therefore plaintiffs had not

sufficiently stated a claim for relief under existing

Fourth Amendment jurisprudence. To reach this

resolution, the court first made note of four

concessions from the parties that narrowed the scope

of its analysis. We rehash these concessions here as

they will help narrow the scope of our appellate

review. First, Maine conceded that the GPS tracking

requirement of the MDMR Rule constituted a search

under the Fourth Amendment. Second, the

lobstermen implicitly conceded (and then confirmed

their position at oral argument before the district

court) that the lobster fishery constitutes a closelyregulated industry per our understanding of the

Fourth Amendment’s scope.9 Third, the parties agreed

in their papers before the district court that the

MDMR Rule constitutes an “administrative search”

under the Fourth Amendment. And fourth, the parties

agreed that the MDMR has a substantial interest in

regulating the lobster fishery and ensuring its longterm viability (an agreement that satisfies one prong

of the legal test we will be discussing at length and

applying).

9 Thompson seeks to repudiate this concession on appeal, a

matter to be discussed, and rejected, later on.

Appendix 9a

We will return to these concessions in a moment,

but for now, we are sufficiently enlightened as to what

happened below to start unpacking Thompson’s

appellate contentions.

II

Before going any further (and before using any

more Fourth Amendment lingo), here’s a Fourth

Amendment backdrop to set the scene.

The Fourth Amendment protects us from

“unreasonable searches and seizures.” U.S. Const.

amend. IV. The same amendment also provides that

“no Warrants shall issue, but upon probable cause.”

Id. Building from these constitutional provisions, the

Supreme Court has “repeatedly held that searches

conducted outside the judicial process, without prior

approval by a judge or a magistrate judge, are per se

unreasonable subject only to a few specifically

established and well-delineated exceptions.” City of

Los Angeles v. Patel, 576 U.S. 409, 419 (2015) (citation

modified). And it is well recognized that this general

rule covers searches of homes and commercial

premises. E.g., id. at 419-20; Marshall v. Barlow’s,

Inc., 436 U.S. 307, 312 (1978); see also Johnson v.

Smith, 104 F.4th 153, 158 (10th Cir. 2024) (“[F]or

more than 50 years the Supreme Court has recognized

that regulatory inspections are also constrained by

[the Fourth] Amendment.”).

A bit more on the “well-delineated” exceptions.

While “reasonableness” remains our North Star, see,

e.g., Rivera-Corraliza v. Morales, 794 F.3d 208, 21516 (1st Cir. 2015), “search regimes where no warrant

is ever required may be reasonable where special

needs make the warrant and probable-cause

requirement impracticable, and where the primary

Appendix 10a

purpose of the searches is distinguishable from the

general interest in crime control,” Patel, 576 U.S. at

420 (citation modified). This type of warrantless-yetreasonable regime can arise in administrative

searches of closely-regulated industries.10 See RiveraCorraliza, 794 F.3d at 216. The justification? Because

“‘when an entrepreneur embarks upon such a

business, he has voluntarily chosen to subject himself

to a full arsenal of governmental regulation,’ and thus

a warrantless search to enforce that regulatory

regime is not unreasonable.” Id. (quoting Marshall,

436 U.S. at 313).

Lest this potentially pervasive exception swallow

the rule, it is cabined by a three-pronged test that

serves as a “carefully-drawn screen” for upholding the

Fourth Amendment’s promised protections. See

Rivera-Corraliza, 794 F.3d at 217. So, even in the

context of a search within a closely-regulated

industry, three things must be true to justify the

search. There must be: (1) “a substantial government

interest that informs the regulatory scheme pursuant

to which the inspection is made; (2) the warrantless

inspections must be necessary to further the

regulatory scheme; and (3) the statute’s inspection

program, in terms of the certainty and regularity of

10 This exception is more accurately described as an exception

within an exception to the Fourth Amendment’s warrant

requirement. Searches that serve a “special need” other than

aiding criminal investigations have been categorized as

“administrative searches.” See Patel, 576 U.S. at 420. These

searches may skirt the general warrant requirement so long as

the subject of the search “be afforded an opportunity to obtain

precompliance review before a neutral decisionmaker.” Id.

Within this category are administrative searches of closelyregulated industries, which we examine under a different, “more

relaxed standard.” Id. at 424.

Appendix 11a

its application, must provide a constitutionally

adequate substitute for a warrant.” Patel, 576 U.S. at

426 (citation modified). We (the royal “we” as we’re

speaking for the legal community) refer to these three

criteria as the Burger test. E.g., Rivera-Corraliza, 794

F.3d at 217; see also New York v. Burger, 482 U.S.

691, 702-03 (1987). And only by satisfying the

requirements of the Burger test may we find an

administrative search of a closely-regulated industry

reasonable under the Fourth Amendment.

III

We review a district court’s dismissal of a complaint

under Rule 12(b)(6) de novo. E.g., Lowe, 68 F.4th at

713. This means we will be giving Thompson’s claims

a completely fresh look to see whether his complaint

“contain[s] sufficient factual matter, accepted as true,

to state a claim to relief that is plausible on its face.”

Id. (quoting Douglas v. Hirshon, 63 F.4th 49, 55 (1st

Cir. 2023)).

Thompson submits three arguments on appeal for

why he thinks the district court erred in throwing out

his Fourth Amendment claim. First, he suggests that

the MDMR Rule constitutes an unreasonable search

outside of, and regardless of, any constitutional

exception for warrantless searches. Second,

Thompson argues the MDMR Rule flunks” the

requirements of the Burger test for administrative

searches of closely-regulated industries. And third,

contrary to his position below, Thompson claims here

that lobstering is not a closely-regulated industry and

therefore the Burger test is wholly inapplicable. We

will get to each argument; however, due to its impact

on the other claims, we begin with Thompson’s third

Appendix 12a

argument fighting against the current of his previous

district court concession.

(A)

Thompson makes no attempt to hide his previous

concession that lobstering is a closely-regulated

industry, which dictates the specific legal test

applicable to his Fourth Amendment claim. On

appeal, in explaining why we should not hold him to

his prior position, Thompson asks us to apply a

“narrowly configured and sparingly dispensed”

exception to this circuit’s standard raise-or-waive rule

to his previously conceded claim. See Reyes-Colón v.

United States, 974 F.3d 56, 62 (1st Cir. 2020) (quoting

Daigle v. Me. Med. Ctr., Inc., 14 F.3d 684, 688 (1st Cir.

1994)). Thompson standardizes the test for

considering issues previously conceded but deserving

of reconsideration into four parts: (1) “the new issue is

strictly a question of law”; (2) “it is almost certain to

be presented in identical terms in other cases”; (3) “the

point can be resolved with certitude on the existing

record”; and (4) the argument “raises an issue of

constitutional magnitude which, if meritorious, could

substantially affect these, and future,” litigants. See

United States v. La Guardia, 902 F.2d 1010, 1013 (1st

Cir. 1990) (citation modified).11

11 Thompson’s test accurately reflects the facts important to

the La Guardia court’s analysis; however, we have previously

expressed interest in other factors when exercising our discretion

to examine issues first raised on appeal. Specifically, on top of

the factors Thompson names, we’ve reserved this discretionary

authority for “exceptional cases” where the party seeking review

makes a “highly persuasive” argument such that “failure to reach

it would threaten a miscarriage of justice” implicating “matters

of great public moment,” and the failure to raise below was

“inadvertent and provided no tactical advantage.” See, e.g., In re

Appendix 13a

For its part, Maine staunchly opposes its

opponent’s attempt to revive this issue. Maine first

notes that Thompson’s cited precedent for this

argument refers to a narrow exception to our raise-orwaive rule inapplicable to issues specifically conceded.

And where, as here, a party has specifically conceded

an issue, our court has repeatedly rejected a litigant’s

“attempt to repudiate that concession and resurrect

the issue.” Baker v. Smith & Wesson, Inc., 40 F.4th

43, 45 n.1 (1st Cir. 2022) (quoting United States v.

Miranda-Carmona, 999 F.3d 762, 767 (1st Cir. 2021)).

Were we to disagree with its first contention, Maine

also argues that our exception to the raise-or-waive

rule requires that the “error is plain and the equities

heavily preponderate in favor of correcting it.” Correa

v. Hosp. San Francisco, 69 F.3d 1184, 1196 (1st Cir.

1995). Here (according to Maine), Thompson cannot

establish plain error because his argument requires

us to make a series of legal and factual determinations

on issues we have not yet considered.

We decline Thompson’s invitation to throw a lifeline

out to this argument. Even if we were to agree with

Thompson that the boundary between our raise-orwaive rule and our rule regarding concession is a

distinction without a difference, see Lang v. Wal-Mart

Stores E., L.P., 813 F.3d 447, 455 (1st Cir. 2016), we

disagree that the present situation amounts to such

extraordinary

circumstances

warranting

the

application of our seldom-seen exception, see id.; see

also Nat’l Ass’n of Soc. Workers v. Harwood, 69 F.3d

622, 627-29 (1st Cir. 1995); United States v. Slade,

Net-Velázquez, 625 F.3d 34, 40-41 (1st Cir. 2010); Nat’l Ass’n of

Soc. Workers v. Harwood, 69 F.3d 622, 627-29 (1st Cir. 1995);

United States v. Krynicki, 689 F.2d 289, 291-92 (1st Cir. 1982).

Appendix 14a

980 F.2d 27, 31 (1st Cir. 1992) (requiring a “previously

omitted ground [be] so compelling as virtually to

insure appellant’s success” (citation modified)). So,

despite Thompson’s adjuration, the fact of the matter

remains that our court denies with near religious

fervor a party’s attempt to repudiate its concession on

appeal. See Alaniz v. Bay Promo, LLC, 143 F.4th 18,

30 (1st Cir. 2025) (declining to sanction the tactic of

“agreeable acquiescence to perceivable error as a

weapon of appellate advocacy” (quoting United States

v. Gates, 709 F.3d 58, 63 (1st Cir. 2013))). Such is the

fate of the issue at hand, and therefore, we proceed, as

the district court did, with the understanding that

lobstering is a closely-regulated industry.

(B)

We

next

address

Thompson’s

appellate

asseveration

focused

on

the

stand-alone

reasonableness of the MDMR Rule. His position

expands from two premises: first, as he puts it, “[t]he

Burger exception is not an exception to the Fourth

Amendment’s reasonableness requirement,” and

second, the government must prove its search is

reasonable per that term’s original meaning. If we

were to agree with these two premises, Thompson

then asks that we conclude the MDMR Rule lacks a

historical analogue (or even better, that it is the

modern reincarnation of the British writs of

assistance that fueled the American Revolution) 12 and

is therefore unreasonable in violation of the Fourth

Amendment. For reasons forthcoming, we find that

Thompson’s first premise misunderstands our binding

12 See Carpenter v. United States, 585 U.S. 296, 303-04 (2018),

for John Adams’s recollection of how patriotic condemnation of

the writs of assistance “helped spark the Revolution itself.”

Appendix 15a

precedent, and as such, we need not consider his

second premise to reject his contention outright.

Thompson pulls his first premise -- that the Burger

test cannot save unreasonable searches of closelyregulated industries -- from general Fourth

Amendment principles and his reading of our recent

administrative-search opinion. To Thompson, the

overbearing nature of the MDMR Rule is per se

unreasonable -- particularly in its monitoring of

activity beyond fishing -- such that any analysis

cabined within the Burger test exception would

impermissibly overlook the broad protections afforded

by the Fourth Amendment.

Maine’s immediate response is that this issue was

not raised to the district court, and as a result, should

be deemed unpreserved on appeal. And if we find

otherwise, Maine says that Thompson’s argument is

“just plain wrong” because searches that satisfy the

Burger test are deemed reasonable within the

meaning of the Fourth Amendment. Because

Thompson’s claim may be swiftly settled on the merits

(and we think he did just enough to preserve this issue

below), we decline to tackle Maine’s preservation

argument and proceed.

The Supreme Court has consistently framed the

Burger test as the relevant (and complete) metric of

Fourth Amendment reasonableness in cases involving

administrative searches within closely-regulated

industries. Starting with Burger itself (as good a place

as any), the Court explained that “[b]ecause the owner

or operator of a commercial premises in a ‘closely

regulated’ industry has a reduced expectation of

privacy . . . a warrantless inspection of commercial

premises may well be reasonable within the meaning

Appendix 16a

of the Fourth Amendment.” Burger, 482 U.S. at 702.

To continue, “[t]his warrantless inspection, however,

even in the context of a pervasively regulated

business, will be deemed to be reasonable only so long

as three criteria are met.” Id. (emphasis ours). 13

Decades after the Burger Court clarified the three

criteria for finding searches of this particular ilk

reasonable, the Court again applied these criteria to

determine whether a Los Angeles municipal scheme

permitting searches of hotel registries was

unreasonable under the Fourth Amendment. See

Patel, 576 U.S. at 426-27. We will discuss the details

of that case shortly, but for now, and for the purposes

of the present analysis, we emphasize that the Court

began its inquiry by stating that the searches at issue

would need to satisfy three additional criteria to be

reasonable under the Fourth Amendment.” Id. at 426

(emphasis added). Hence, a satisfactory passing of the

Burger test stands in as proxy for “the warrant and

probable-cause requirements, which fulfill the

traditional Fourth Amendment standard of

reasonableness for a government search.” Burger, 482

U.S. at 702.

In our review, no court has concluded differently.

After applying the Burger test to a regulatory scheme

involving searches of commercial trucks, we

previously held that “[s]ince all three of the Burger

13 To remind the reader of the test criteria: (1) “a substantial

government interest that informs the regulatory scheme

pursuant to which the inspection is made; (2) the warrantless

inspections must be necessary to further the regulatory scheme;

and (3) the statute’s inspection program, in terms of the certainty

and regularity of its application, must provide a constitutionally

adequate substitute for a warrant.” Patel, 576 U.S. at 426

(citation modified).

Appendix 17a

criteria [had been] satisfied, it follows inexorably that

an administrative search of a commercial truck is

constitutionally permissible.” United States v.

Maldonado, 356 F.3d 130, 136 (1st Cir. 2004); see also

Tart v. Massachusetts, 949 F.2d 490, 498 (1st Cir.

1991) (explaining that “a warrantless inspection in a

‘closely-regulated’ industry, pursuant to statute, is

valid” if it satisfies the Burger test); Killgore v. City of

South El Monte, 3 F.4th 1186, 1192 (9th Cir. 2021)

(“Under Burger, a warrantless inspection of a

commercial business in a ‘closely regulated’ industry

is reasonable under the Fourth Amendment provided

three conditions are met . . . .”). And when our sister

circuit upheld a Department of Transportation

regulation requiring commercial vehicles to install

electronic logging devices, it used the Burger test and

referred to it as “a three-part reasonableness test.”

Owner-Operator Indep. Drivers Ass’n v. U.S. Dep’t of

Transp., 840 F.3d 879, 895 (7th Cir. 2016). Despite

Thompson’s suggestion otherwise, nowhere in the

caselaw do we find a stand-alone reasonableness

inquiry conducted in addition to the Burger test.

Thompson’s attempts to persuade us differently

flounder. In his efforts to divorce the Fourth

Amendment’s reasonableness standard from the

Burger test, Thompson says that even if an exception

applies, this court “must still, no matter what,

‘balance the privacy-related and law enforcementrelated concerns to determine if the intrusion was

reasonable.’” (quoting Maryland v. King, 569 U.S. 435,

448 (2013)). In the case Thompson cites for this

proposition -- Maryland v. King -- the Court

considered the reasonableness of minimally invasive

buccal swabs on detained individuals. 569 U.S. at 46364. And with that important (but largely unrelated)

Appendix 18a

question on the table, the Court did not have occasion

to weigh in on whether a search may be unreasonable

regardless of the Burger test.14

Regardless, Thompson’s proposed balancing

overlooks the narrow context in which the Burger test

comes into play. Closely-regulated industries “have

such a history of government oversight that no

reasonable expectation of privacy could exist for a

proprietor over the stock of such an enterprise.” Patel,

576 U.S. at 424 (citation modified). As we explained

earlier, this diminished expectation of privacy exists

because individuals entering closely-regulated

industries subject themselves to a “full arsenal of

governmental regulation.” Rivera-Corraliza, 794 F.3d

at 216 (quoting Marshall, 436 U.S. at 313). Because

the Burger test applies to searches of closelyregulated industries, which necessarily have a

reduced expectation of privacy, see Burger, 482 U.S.

at 702, the privacy concerns and judicial balancing

Thompson requests come pre-baked into the Burger

test, and need not be repeated outside of its

application.

We also disagree with Thompson’s interpretation of

Rivera-Corraliza and take a moment here to clarify

any residual doubt. In Rivera-Corraliza, we prefaced

14 The Court did mention searches of closely-regulated

industries in passing to emphasize that “[t]he reasonableness of

any search must be considered in the context of the person’s

legitimate expectations of privacy.” See King, 569 U.S. at 462.

The Court used searches of closely-regulated industries as an

example of “a context-specific benchmark inapplicable to the

public at large” because “the expectations of privacy of covered

employees are diminished by reason of their participation in an

industry that is regulated pervasively.” Id. (quoting Skinner v.

Ry. Lab. Execs. Ass’n, 489 U.S. 602, 627 (1989)).

Appendix 19a

our discussion of the Burger test and exceptions to the

Fourth Amendment’s guarantees by stating that

“[j]udges must never forget that while the

Constitution okays warrantless searches in some

situations, it never okays unreasonable ones.” 794

F.3d at 217. Thompson reads these words of caution

to mean that some searches are so far beyond the

Fourth Amendment pale that an exception to the

warrant requirement cannot save them.

First, the language of a judicial opinion is not

always intended to be scrutinized as if it were the text

of a statute. See, e.g., Brown v. Davenport, 596 U.S.

118, 141 (2022). And when read in context, this

sentence from Rivera-Corraliza remains consistent

with the Fourth Amendment principles we’ve just

expounded. In the sentence immediately following the

one Thompson sets his sights on, we described the

Burger test as the “carefully-drawn screen” against

unreasonable searches which judges must “jealously

protect, lest this particular warrantless-search

exception destroy the Fourth Amendment.” RiveraCorraliza, 794 F.3d at 217. A court applying the

Burger test has not forgotten the Constitution’s

prohibition against unreasonable searches. It is

indeed through the application of that test that a court

may conclude that an administrative search of a

closely-regulated industry is reasonable.

In sum, we reject Thompson’s proposition that in

the context of a search of a closely-regulated industry,

a free-standing reasonableness inquiry must be

conducted apart from the application of the Burger

test, and we now proceed to review Thompson’s

challenge pursuant to that test of reasonableness.

Appendix 20a

(C)

For the main event, Thompson argues that the

MDMR Rule flunks the Burger test, particularly

considering how this test has been narrowed by the

Supreme Court’s decision in Patel. To (again) remind

the reader, the Burger test consists of three criteria:

“(1) There must be a substantial government interest

that informs the regulatory scheme pursuant to which

the inspection is made; (2) the warrantless inspections

must be necessary to further the regulatory scheme;

and (3) the statute’s inspection program, in terms of

the certainty and regularity of its application, must

provide a constitutionally adequate substitute for a

warrant.” Patel, 576 U.S. at 426 (citation modified).

Like before, at the district court, the parties agree

that the MDMR Rule satisfies the first Burger

criterion: Maine has a substantial interest in

regulating and conserving its lobster fishery.

Therefore, we’re left with the second and third Burger

criteria on our plate and discuss each in turn.

(1)

The second Burger criterion requires warrantless

searches be necessary to further the regulatory

scheme, typically because the element of surprise is

crucial. Burger, 482 U.S. at 710; Rivera-Corraliza, 794

F.3d at 220. Thompson’s argument harps on the term

“necessary,” and posits that Patel has elevated this

prong of the Burger test to something “like strict

scrutiny or [a] least-restrictive-means test” for the

method of search being imposed. In support,

Thompson points to Justice Scalia’s dissenting

opinion in Patel, where he described the majority’s

approach as “importing a least-restrictive-means test

into Burger’s Fourth Amendment framework . . . .”

Appendix 21a

Patel, 576 U.S. at 438 (Scalia, J., dissenting). To apply

Thompson’s version of the heightened second Burger

prong, we would need to ask whether the

government’s

interest

would

be

“fatally

undermine[d]” in the absence of the challenged

regulation. So, because Maine’s conservation and

sustainability interests in its lobster fishery would not

be “completely defeated” without the MDMR Rule,

Thompson concludes the Rule fails the Burger test at

prong two.

While we have previously described the second

Burger criterion in less demanding terms, see RiveraCorraliza, 794 F.3d at 216 (“The [second criterion] is

that warrantless inspections further [the substantial

government] interest.”), in practically the same

breath, we declined to decide one way or another

whether Patel had changed the Burger test in any

way, see id. at 217 n.12. For reasons we are about to

unpack, we do not believe Patel has elevated the

scrutiny owed at the second Burger criterion as

Thompson suggests.15

In Patel, the Court reviewed a facial challenge to a

provision of the Los Angeles Municipal Code that, in

relevant part, required hotel operators to produce

detailed records of their guests to any Los Angeles

police officer immediately upon request. 576 U.S. at

412-13. The Court began its Fourth Amendment

review by first acknowledging that government

searches conducted without a warrant, or otherwise

15 Due to Thompson’s prior concession (and our refusal to

allow him to repudiate that concession), our holding today does

not resolve the question of whether Patel changed the closelyregulated industry standard under Burger. See Mexican Gulf

Fishing Co. v. U.S. Dep’t of Com., 60 F.4th 956, 967 (5th Cir.

2023) (collecting cases).

Appendix 22a

conducted without prior approval by a judge, are “per

se unreasonable” under the Fourth Amendment. Id. at

419 (quoting Arizona v. Gant, 556 U.S. 332, 338

(2009)). However, the Court continued that “[s]earch

regimes where no warrant is ever required may be

reasonable where special needs make the warrant and

probable-cause requirement impracticable, and where

the primary purpose of the searches is distinguishable

from the general interest in crime control.” Id. at 420

(citation modified). Searches of this kind are referred

to as “administrative searches,” and must meet

certain requirements (not the Burger test) to pass

constitutional muster. Id. The Los Angeles ordinance

failed to do so. Id. at 423.

The Patel majority could have stopped there, but it

continued to address an alternate position raised by

Los Angeles and discussed by Justice Scalia in

dissent. Both Los Angeles and the dissenting Justice

believed the challenged regulation should have been

considered under the “more relaxed standard” applied

to administrative searches of closely-regulated

industries (the exception within the exception). See id.

at 424. The majority disagreed and held that hotels

were not part of a closely-regulated industry, making

the Burger exception inapplicable. Patel, 576 U.S. at

424-25.

Despite finding another dispositive basis for

dismissing the arguments raised, the Court proceeded

to find that the Los Angeles ordinance also failed the

second and third Burger criteria. Id. at 426. In

examining the second criterion, the Court first

presented Los Angeles’s argument “that affording

hotel operators any opportunity for precompliance

review would fatally undermine the scheme’s efficacy

by giving operators a chance to falsify their records.”

Appendix 23a

Id. at 427 (citing Brief for Petitioner at 41-42)

(emphasis added by us on behalf of Thompson). The

Court rejected this argument because, in its view,

officers of the Los Angeles Police Department could

still maintain the element of surprise or otherwise

protect the accuracy of hotel records through

available, judicially-approved channels such as ex

parte warrants. Id.

With our recap of Patel laid out, Thompson’s

characterization of Patel’s influence on the Burger

test flops. Thompson insists that the “necessary”

element of the second Burger prong relates back to the

“substantial government interest” required in the first

prong -- here Maine’s conservation and sustainability

interests. Therefore, his argument goes, the MDMR

Rule fails because 24/7 GPS tracking is not absolutely

necessary to achieving Maine’s conservation and

sustainability goals. But Thompson misapprehends

the question that we must reckon with.

Both the majority opinion and Justice Scalia’s

dissent in Patel (along with both pre- and post-Patel

caselaw make clear that the necessity being

scrutinized in the second prong of the Burger test is

the need for a warrantless search to accomplish the

regulatory scheme. See Patel, 576 U.S. at 437 (Scalia,

J., dissenting) (“Respondents and the Court

acknowledge that inspections are necessary to achieve

the purposes of the recordkeeping regime, but insist

that warrantless inspections are not.”); id. at 427

(finding “surprise inspection[s]” unnecessary to the

“scheme’s efficacy”); see also Rivera-Corraliza, 794

F.3d at 220 (reviewing “whether the state’s interest

justifies warrantless inspections”); Johnson, 104

F.4th at 176-77 (requiring the government to prove its

Appendix 24a

regulation could only be effectively enforced through

a warrantless inspection regime).

As we touched on in our Patel recap, the hotel

operators’

Fourth

Amendment

rights

were

undermined because the proposed government

searches did not need to be warrantless. Patel, 576

U.S. at 427. But importantly, the method of the

warrantless search -- making hotel records available

when police officers request them -- did not influence

the Court’s analysis. As in, the Court did not agonize

over whether it was necessary for Los Angeles police

officers to request hotel records in person because

they could have made less intrusive requests via email

to promote their goal of maintaining accurate hotel

registries. See id. at 426. Critically, Thompson asks

that we do what the Supreme Court did not. Rather

than contesting the general need for warrantless

searches in this regulatory scheme, Thompson takes

issue solely with the method of search imposed by the

MDMR 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 (the latter being a sneak peek into Burger’s

third prong).

Furthermore, the position advocated for by

Thompson quickly proves untenable. 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

Appendix 25a

permissibly “necessary” to achieve them.16 So, while

Thompson argues that “there are far less intrusive

ways to improve the fishery data,” such as “limit[ing]

tracking to vessels fishing for lobsters in federal

waters” or “employing lesser ‘ping rates,’” his

proposals would still amount to warrantless searches

-- just ones more suited to his preferences.

Our Fourth Amendment precedent has not

concerned itself with the necessity of ping rates.

Instead, it has remained focused on protecting

individuals from warrantless government searches

and jealously protecting the few exceptions to that

general rule. See Rivera-Corraliza, 794 F.3d at 217.

Thus, what Thompson deems the “inherent

contradiction” saddled in Burger and its progeny is no

more than a boogeyman of his own design. A

warrantless search must be necessary to satisfy the

substantial government interest, but the method of

conducting such a search need only reasonably serve

or advance that interest. See Burger, 482 U.S. at 70910; Patel, 576 U.S. at 427; Rivera-Corraliza, 794 F.3d

at 220; Johnson, 104 F.4th at 176-77.

Due to his presentation of Patel’s influence on the

Burger test, Thompson does not argue that

warrantless searches are unnecessary to Maine’s

interests. Indeed, Thompson has suggested less

intrusive ways to accomplish Maine’s goals which

nevertheless constitute warrantless searches. We

need not dwell on this issue and reiterate that

boatloads of caselaw have previously explained why

warrantless searches on the high seas are unique.

16 This court momentarily engaged in this exercise in futility

at oral argument, positing various methods of data collection

that may be less intrusive, but never solidly “necessary.”

Appendix 26a

See, e.g., United States v. Villamonte-Marquez, 462

U.S. 579, 593 (1983); United States v. Kaiyo Maru No.

53, 699 F.2d 989, 995-96 (9th Cir. 1983); Lovgren v.

Byrne, 787 F.2d 857, 867 (3d Cir. 1986). Additionally,

Maine has elucidated why this method of data

collection is necessary to their regulatory scheme. The

tracking devices on commercial lobster vessels ensure

accurate, reliable, and precise data that allows Maine

to assess its fishery stock and assist federal whale

regulators. Alternative data collection schemes would

require Maine lobstermen to turn on and off their

tracking devices at certain points or amount to a selfreporting system, either of which could skew their

data, thereby frustrating the purposes of the MDMR

Rule entirely.

Accordingly, Maine was not on the hook for

demonstrating that its chosen method of search was

the least restrictive means of achieving its

conservation and sustainability interests. The MDMR

Rule satisfies the second Burger prong because

warrantless searches are necessary to further the

regulatory scheme.

(2)

The third and final Burger criterion requires the

regulatory scheme, in terms of its certainty and

regularity, “provide a constitutionally adequate

substitute for a warrant.” Burger, 482 U.S. at 703

(citation modified); see also Patel, 576 U.S. at 426.

This means the regulation must (1) give notice to

those being regulated and (2) limit an inspecting

officer’s discretion in terms of time, place, and scope.

Rivera-Corraliza, 794 F.3d at 216-17 (citing Burger,

482 U.S. at 703).

Appendix 27a

Thompson’s protest under the third Burger

criterion necessarily caters to some of the novel

questions raised by the MDMR Rule. Thompson does

not dispute that the MDMR Rule provides notice of

the tracking requirement and the surrounding

regulatory scheme. Nor, from what we can tell, does

Thompson argue that the MDMR Rule gives any

MDMR officials unfettered discretion to conduct

searches.17 Instead, Thompson denounces the MDMR

Rule as an impermissible general warrant because “it

is not sufficiently tailored in scope and time to

function akin to an actual, specific warrant.” Maine

sees the situation differently. The MDMR Rule (it

says) only collects a limited and specific type of data

-- the location of licensed commercial fishing vessels that properly limits the scope of the search and the

government’s discretion.

The MDMR Rule is unique compared to previous

search regimes scrutinized under the Burger test. The

“searches” are constantly conducted by GPS tracking

devices installed on each federally licensed

lobsterman’s vessel; there are no friendly

neighborhood inspectors periodically dropping in

unannounced. Compare 13-188 C.M.R. ch. 25, § 98,

with Burger, 482 U.S. at 711 (describing a New York

law), and Tart v. Massachusetts, 949 F.2d 490, 497-98

(1st Cir. 1991) (describing a Massachusetts law). And

this difference cuts both ways for our review.

17 The parties mutually describe the search as taking place

through the tracking device and not at a later point when the

collected data is examined by a government official. Contra

Owner-Operator Indep. Drivers Ass’n, 840 F.3d at 895.

Accordingly, we will apply the Burger test to this search, as

prompted.

Appendix 28a

Minimally intrusive, mindless tracking devices

remove discretionary judgment calls from the

equation entirely, alleviating the concern of any

intrusive government officials overstepping their

authority. See Tart, 949 F.2d at 498, 499; see also

Patel, 576 U.S. at 427. 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. See, e.g., Rivera-Corraliza, 794 F.3d at 221. This

latter fact limits the persuasiveness of parallels

drawn to prior schemes offered by Maine, but it does

not paint the Orwellian picture offered by Thompson,

either.18

As a whole, the search regime imposed by the

MDMR Rule satisfies the third Burger criterion

because the searches are non-discretionary across the

industry, minimally intrusive, and sufficiently clear

in both timing and scope.

Notwithstanding the uniqueness just described, we

have previously said that “a regime may pass the

Burger test even if there are no time limits,” but

“context is key.” Rivera-Corraliza, 794 F.3d at 221.

And that “context” comes down to whether time limits

“would make inspections unworkable.” Id. To use a

tried and tested example, an inspection scheme for

18 Thompson seeks to analogize here to Supreme Court

caselaw concerning advanced technologies in government

searches. But the cases he cites are criminal in nature and

involve government searches to uncover evidence of criminal

activity. See Carpenter v. United States, 585 U.S. 296, 316

(2018). Therefore, any direct comparison to the MDMR Rule falls

short. Furthermore, the Supreme Court has not banned the

advancement of technologies used in government searches

outright, as Thompson suggests.

Appendix 29a

commercial trucks cannot have a feasible time

restriction because trucks operate twenty-four hours

a day. See id. (citing United States v. Ponce-Aldona,

579 F.3d 1218, 1225-26 (11th Cir. 2009)). Thus, a

truck regulation limiting inspections to typical

business hours would incentivize those seeking to

avoid detection to travel solely by night, making the

scheme unworkable. See Ponce-Aldona, 579 F.3d at

1226.

So too here. Maine lobstermen may raise or haul

their traps at any time, subject to specified seasonal

and weekend restrictions. See Me. Stat. tit. 12, § 6440.

And, while Thompson frames the MDMR Rule as a

“perpetual, technology-driven, and omnipresent

search,” it only applies to the vessels of federallylicensed lobstermen when they are in the water, and

only at a near-constant rate while the vessel is

moving. Cf. Tart, 949 F.2d at 498-99. 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. See Burger, 482 U.S. at 711

n. 21.

As for scope, the MDMR Rule poses no risk. The

tracking devices relay time and position data only,

and the Rule does not authorize the search of any

vessels more broadly. See Owner-Operator Indep.

Drivers Ass’n, 840 F.3d at 896. As such, we fail to see

Thompson’s perspective of how this amounts to an

unlimited scope. The tracking devices do not record

and report everything done aboard the vessel; they

record a limited and specific type of data and report

only that.

Appendix 30a

Putting everything together, the MDMR Rule, as

an administrative search of a closely-regulated

industry, passes the Burger test and does not violate

the Fourth Amendment.

For the reasons above, we affirm. No costs to either

side.

Appendix 31a

Filed 11/21/24

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

FRANK THOMPSON, et al.

Plaintiffs,

v.

PATRICK KELIHER, in his

official capacity as

COMMISSIONER, MAINE

DEPARTMENT OF

MARINE RESOURCES,

Defendant.

)

)

)

)

)

) No. 1:24-cv) 00001-JAW

)

)

)

ORDER ON MOTION TO DISMISS AND

MOTION FOR PRELIMINARY INJUNCTION

Maine lobstermen brought suit against the

commissioner of the Maine Department of Marine

Resources, seeking to enjoin the enforcement of a rule

issued by the department that compels federally

licensed lobstermen to install a tracking device on

their fishing vessels.1 The lobstermen challenge the

rule under Maine’s Administrative Procedure Act and

on federal and state constitutional grounds as a

violation of their right to be free from unreasonable

searches and seizures and right to equal protection

under the law. The defendant moves to dismiss the

case for failure to state a claim and for lack of subject

1 Throughout this order, the Court uses “lobstermen” as a

gender-neutral term. See Maine Lobster Community Alliance, A

Lobsterman is a Lobsterman, Regardless of Gender (Jul. 7, 2023),

A Lobsterman is a Lobsterman, Regardless of Gender

(mlcalliance.org).

Appendix 32a

matter jurisdiction. The lobstermen seek a

preliminary injunction, which the defendant also

opposes. The court dismisses the plaintiffs’ claim

under the Maine Administrative Procedure Act for

lack of subject matter jurisdiction and dismisses the

Fourth Amendment and equal protection claims for

failure to state a claim on which relief can be granted.

Although the court grants the motion to dismiss the

Fourth Amendment claim pursuant to Supreme Court

and First Circuit caselaw on administrative searches,

this case raises significant Fourth Amendment issues,

and the court encourages the lobstermen to appeal

this decision to the Court of Appeals for the First

Circuit for an authoritative ruling.

Having granted the defendant’s motion to dismiss,

the court dismisses the motion for preliminary

injunction as moot.

I. PROCEDURAL HISTORY

On January 2, 2024, Frank Thompson, Joel Strout,

Jason Lord, Christopher Smith, and Jack

Cunningham (collectively, the Plaintiffs) filed a facial

complaint against Patrick Keliher, in his official

capacity as Commissioner of the Maine Department of

Marine Resources (MDMR), seeking declaratory and

injunctive relief against a rule issued by the MDMR

that requires federally permitted lobstermen to install

an electronic tracking device on their fishing vessels.

Compl. for Declaratory and Injunctive Relief (ECF No.

1) (Compl.).

On January 12, 2024, the Plaintiffs filed a motion

for preliminary injunction. Pls.’ Mot. for Prelim. Inj.

(ECF No. 7). On March 1, 2024, Commissioner Keliher

responded in opposition to the motion for preliminary

injunction. Def.’s Opp’n to Mot. for Prelim. Inj. (ECF

Appendix 33a

No. 16). That same day, the Atlantic States Marine

Fisheries Commission (ASMFC), as amicus curiae,

also opposed injunctive relief. Amicus Curiae Atl.

States Marine Fisheries Comm’n’s Mem. in Opp’n to

Pls.’ Mot. for Prelim. Inj. (ECF No. 15). On March 12,

2024, the Plaintiffs replied. Pls.’ Reply to Opp’n to Mot.

for Prelim. Inj. (ECF No. 17).

On April 8, 2024, Commissioner Keliher moved to

dismiss the case pursuant to Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter

jurisdiction and Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. Def.’s Mot. to

Dismiss (ECF No. 23) (Mot. to Dismiss). That same

day, ASMFC filed an amicus curiae memorandum in

support of Commissioner Keliher’s motion to dismiss.

Amicus Curiae Atl. States Marine Fisheries Comm’n’s

Mem. in Support of Def.’s Mot. to Dismiss (ECF No.

22) (Amicus Mem. in Support of Mot. to Dismiss). On

April 29, 2024, the Plaintiffs responded in opposition

to the motion to dismiss. Pls.’ Opp’n to Def.’s Mot. to

Dismiss (ECF No. 24) (Pls.’ Opp’n). On May 13, 2024,

Commissioner Keliher replied. Def.’s Reply to Pls.’

Opp’n to Def.’s Mot. to Dismiss (ECF No. 25) (Def.’s

Reply).

On June 3, 2024, the Plaintiffs moved for oral

argument on the motion for preliminary injunction

and the motion to dismiss, Unopposed Mot. for Oral

Arg. (ECF No. 26); the Court granted the motion for

oral argument on the same day. Order (ECF No. 27).

On June 19, 2024, ASMFC requested leave to

participate in oral argument as amicus curiae. Mot. of

Amicus Curiae Atl. States Marine Fisheries Comm’n

for Leave to Participate in Oral Arg. on Mot. to Dismiss

and Mot. for Prelim. Inj. (ECF No. 28). The Court

granted the ASMFC’s motion on June 25, 2024, Order.

Appendix 34a

(ECF No. 29), and held oral argument on November

19, 2024. Min. Entry (ECF No. 32).

II. FACTUAL BACKGROUND2

A. The American Lobster Fishery

The American Lobster fishery is one of the nation’s

most valuable fisheries. Compl. ¶ 1. In 2016 alone,

approximately 159 million pounds of lobster were

landed within the fishery. Id. Over 97% of this haul

was landed in the Gulf of Maine and Georges Bank,

an area far offshore between Massachusetts and Nova

Scotia. Id.

Roughly 4,800 lobster license holders, 1,100

student license holders, and a great number of lobster

dealers, processors, sternmen, bait dealers, trap

builders, boat mechanics, shipyards, and local coastal

merchants depend on the Maine lobster fishery for

their very survival. Id. ¶ 2. Maine’s lobster supply

chain contributes $1 billion to the state’s economy

each year, in addition to the value of its actual lobster

landings. Id. By virtue of custom and practice over

generations of lobstering men and women, the

placement of lobster traps and trip routes is akin to

“coveted individual trade secrets used by lobstermen

to optimize their harvest.” Id. ¶ 3. Accordingly, this

2 Consistent with the motion to dismiss standard, the Court

relied on the complaint’s well-pleaded facts. “[T]he court must

distinguish ‘the complaint’s factual allegations (which must be

accepted as true) from its conclusory legal allegations (which

need not be credited).’” García-Catalán v. United States, 734 F.3d

100, 103 (1st Cir. 2013) (quoting Morales-Cruz v. Univ. of P.R.,

676 F.3d 220, 224 (1st Cir. 2012)); see also Schatz v. Republican

State Leadership Comm., 669 F.3d 50, 55 (stating that a court

may “isolate and ignore statements in the complaint that simply

offer legal labels and conclusions or merely rehash cause-ofaction elements”).

Appendix 35a

information has substantial economic value to each

lobsterman. Id.

Federal and state regulators share oversight of the

Atlantic coast fisheries. Id. ¶ 4. Individual states

regulate waters within three nautical miles of shore,

while the National Marine Fisheries Service (NMFS),

a sub-agency of the National Oceanic and

Atmospheric Administration (NOAA), regulates the

federal waters extending 200 nautical miles from the

inner boundary of state waters (known as the

Exclusive Economic Zone or EEZ). Id.

B. The Magnuson-Stevens Fishery

Conservation and Management Act

The Magnuson-Stevens Fishery Conservation and

Management Act (MSA) governs fishing within the

EEZ. Id. ¶¶ 7, 29 (citing 16 U.S.C. § 1802). In

recognition of the economic importance of commercial

and recreational fishing, Congress adopted the MSA

to protect, manage, and grow the United States’

fishery resources. Id. ¶ 28. To these ends, the MSA

delineates scientific and conservation-based statutory

obligations to sustainably manage fishery resources

for the benefit of the fishing industry and the

environment. Id. (citing 16 U.S.C. §§ 1801 et seq.). The

MSA grants the U.S. Department of Commerce the

ability to exercise “sovereign rights” to conserve and

manage fishery resources “for the purposes of

exploring, exploiting, conserving, and managing all

fish” in the EEZ. Id. § 29 (citing 16 U.S.C.

§§ 1801(b)(1), 1811(a)).

The MSA created eight Regional Fishery

Management Councils (the Councils) and empowers

both the regional councils and Secretary of Commerce

to prepare fishery management plans (FMPs). Id.

Appendix 36a

¶ 30. Maine is governed by the New England Council,

which also oversees the fisheries of New Hampshire,

Massachusetts, Rhode Island, and Connecticut. Id.

The New England Council has authority over fisheries

in the Atlantic Ocean seaward from those states. Id.

(citing 16 U.S.C. § 1852(a)(1)). Under the MSA, FMPs

must be “necessary and appropriate for the

conservation and management of the fishery, to

prevent overfishing and rebuild overfished stocks, and

to protect, restore, and promulgate the long-term

health and stability of the fishery.” Id. (citing 16 U.S.C

§ 1853).

Section 301 of the MSA lists ten “National

Standards” that all FMPs, regardless of the drafting

entity, are required to follow. Id. ¶ 33. At least six

national standards are implicated by the Addendum

at issue in the case at bar:

1. National Standard One, which requires that

“[c]onservation and management measures

shall prevent overfishing while achieving, on a

continuing basis, the optimum yield from each

fishery for the United States fishing industry.”

2. National Standard Two, which requires that

“[c]onservation and management measures

shall be based upon the best scientific

information available.”

3. National Standard Four, which requires that

all agency measures that allocate or assign

fishing

privileges

among

various

…

fisherm[e]n” should be “fair and equitable” and

“reasonably

calculated

to

promote

conservation”

….

Furthermore,

“[n]o

particular individual, corporation, or other

Appendix 37a

entity [should] acquire[] an excessive share of

such privileges.”

4. National Standard Six, which requires that

“[c]onservation and management measures

shall take into account and allow for variations

among, and contingencies in, fisheries, fishery

resources, and catches.”

5. National Standard Seven, which requires that

“[c]onservation and management measures

shall, where practicable, minimize costs and

avoid unnecessary duplication.”

6. National Standard Eight, which requires that

“[c]onservation and management measures

shall, consistent with the conservation

requirements … , take into account the

importance of fishery resources to fishing

communities by utilizing economic and social

data that [are based upon the best scientific

information available], 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.”

Id. (citing 16 U.S.C. § 1851(a)(1), (2), (4), (6)-(8))

(internal citations omitted).

The MSA does not authorize or permit any

collection of information on vessel movements when

the vessel is not fishing under its permit. Id. ¶ 32. The

MSA also “does not require lobster boats to have a

vessel tracker[,] nor does it mention or contemplate

24-hour location and movement surveillance of any

vessel, whether by GPS or otherwise,” regardless of

whether the vessel is fishing in federal waters under

a federal permit or being used for an unregulated

Appendix 38a

purpose. Id. ¶ 34. Rather, the MSA “only permits the

collection of information that is beneficial for

developing, implementing, or revising FMPs.” Id. at

¶ 32 (citing 16 U.S.C. § 1881a(a)(1)3). If a Council

determines information collection is necessary in

order to prepare an FMP, it may request that the

Secretary of Commerce implement such collection.4

Id. (citing 16 U.S.C. § 1881a(a)(1)5).

C. The Atlantic States Marine Fisheries

Commission

Both the federal and state governments regulate

lobster fishing in U.S. waters through the Atlantic

States Marine Fisheries Commission. Id. ¶ 4. The

ASMFC is a multi-state collaborative organization

through which fifteen Atlantic Coast states, including

Maine, coordinate their conservation efforts and share

in the management of migratory fisheries within their

state waters. Id. ¶¶ 4, 5. Pursuant to the Atlantic

Coastal Fisheries Cooperative Act (ACA), “[t]he

responsibility for managing Atlantic Coastal fisheries

rests with the States, which carry out a cooperative

program of fishery oversight and management

through the [ASMFC].” Id. ¶ 25 (citing 16 U.S.C.

§ 5101). The ACA says that it is the federal

3 Plaintiffs’ complaint ¶ 32 cites 18 U.S.C. § 1881a(a)(1). This

is incorrect. The proper citation is 16 U.S.C. § 1881a(a)(1).

4 “Only where the Secretary has determined that the

collection is justified does he or she have a duty to promulgate

regulations implementing the collection program.” Compl. ¶ 32

(citing 16 U.S.C. § 1881a(a)(2)). The Secretary may also initiate

an “information collection program . . . if deemed necessary.” Id.

The Court has again corrected Plaintiffs’ citation from 18

U.S.C. § 1881a(a)(1) to 16 U.S.C. § 1881a(a)(1).

5 The Court has again corrected Plaintiffs’ citation from 18

U.S.C. § 1881a(a)(1) to 16 U.S.C. § 1881a(a)(1).

Appendix 39a

government’s responsibility “to support such

cooperative interstate management of coastal fishery

resources.” Id. (citing 16 U.S.C. § 5101).

The ACA encourages this shared responsibility by

requiring the ASMFC to draft interstate FMPs,

pursuant to which each of the member-states

regulates that portion of the migratory fishery falling

within their individual waters. Id. ¶ 5 (citing 16

U.S.C. § 5104(a)). Under the ACA, states are required

to adopt and enforce fishery plans promulgated by the

ASMFC. Id. ¶ 5. However, FMPs implemented by any

of the NOAA Councils or the Secretary of Commerce

pursuant to the MSA supersede any conflicting

regulation issued by the ASMFC. Id. ¶ 31 (citing 16

U.S.C. § 5103). Thus, while the ACA empowers the

ASMFC to draft regulations governing the EEZ, it

cannot supplant regulations issued by NOAA, NMFS,

or the Secretary of Commerce. Id. ¶ 36.

When the ASMFC drafts FMPs containing

regulations and enforcement guidelines, it specifies

the requirements for state compliance. Id. ¶ 6. The

states then draft their own rules; in Maine, this work

is done by the MDMR, which regulates lobster fishing

in the state’s waters pursuant to an FMP. Id. ¶¶ 5-6

(citing 12 M.R.S. §§ 6421-6482; 13-188 C.M.R. ch. 25,

§ 98). If a member state fails to timely enact rules

adopting the ASMFC’s plan for a particular fishery,

the Secretary of Commerce has the authority to

impose a moratorium on fishing in that state’s waters.

Id. (citing 16 U.S.C. § 5106).

Appendix 40a

D. Addendum XXIX to Amendment 3 to the

American Lobster Fishery Management

Plan

In March 2022, the ASMFC published an

addendum to an existing FMP entitled Addendum

XXIX to Amendment 3 to the American Lobster

Fishery Management Plan; Addendum IV to the

Jonah Crab Fishery Management Plan (the

Addendum). Id. ¶ 8; see also Compl., Attach. 1,

Addendum XXIX to Amend. 3 to the Am. Lobster

Fishery Mgmt. Plan; Addendum IV to the Jonah Crab

Fishery Mgmt. Plan (ECF No. 1-1) (Addendum XXIX).

The primary purpose of the Addendum is to support

risk reduction efforts promulgated in NMFS’s 2021

Atlantic Large Whale Take Reduction Plan (Take

Reduction Plan), which is designed to reduce the risk

of North Atlantic right whale entanglement in fishing

lines. Compl. ¶ 8. As promulgated by NMFS, the Take

Reduction Plan does not contain a vessel tracking

requirement. Id.

In addition to protecting the North Atlantic right

whale, the Addendum identifies three secondary

objectives for its “‘24/7’ tracking requirement: 1) to

improve information available to fishery managers

and stock assessment scientists; 2) to support the

development of offshore renewable energy and the

conservation of U.S. waters; and 3) to promote

improved fishery management and offshore

enforcement of federal lobster fisheries in the EEZ.”

Id. ¶ 9.

The Addendum requires states to issue rules

mandating federally permitted lobstermen to install

an electronic tracking device onboard their respective

fishing vessels that will transmit their spatial data

Appendix 41a

using a Global Positioning System (GPS). Id. ¶ 10.

“According to the Addendum, the ‘vessel tracker must

remain powered and transmitting when the vessel is

in the water regardless of landing state, trip type,

location fished or target species.’” Id. The Addendum

mandated compliance with the tracking program by

December 15, 2023. Id.

1. The Origins and Drafting of Addendum

XXIX

When the ASMFC published the Addendum, it gave

no indication that it had consulted with any Council

during the drafting process. Id. ¶ 53.

The Addendum was initiated from what the

American Lobster Management Board (ALMB)

characterized as a “critical need for high resolution

spatial and temporal data.” Id. ¶ 54. At the time of the

Addendum’s drafting, however, the ALMB’s

purported need for more spatial data had been

previously addressed by a prior addendum published

in February 2018, Addendum XXVI. Id.; see also

Compl., Attach. 2, Addendum XXVI to Amend. 3 to the

Am. Lobster Fishery Mgmt. Plan; Addendum III to the

Jonah Crab Fishery Mgmt. Plan (ECF No. 1-2)

(Addendum XXVI). Addendum XXVI initiated a pilot

program for electronic tracking of vessels that

required all federally permitted vessels to self-report

harvester data either electronically or manually. Id.

Addendum XXVI mandated that federally licensed

lobstermen self-report: 1) a unique trip identification

number; 2) a vessel identification number, 3) the trip

start date, the location (by NMFS Statistical Area) of

the trip; 4) the lobster management area; 5) a tenminute square level; 6) the number of traps hauled on

the trip; 7) the number of traps set on the trip; 8) the

Appendix 42a

species harvested; 9) the quantity (in pounds) of the

harvest; 10) the length of the trip; 11) the number of

traps employed per trawl; 12) the number of buoy

lines employed; and 13) the soak time of the traps.

Compl. ¶ 55; see also Addendum XXVI.

At the end of Addendum XXVI’s one-year pilot

program, the ASMFC was directed to assess the

effectiveness of different tracking technologies and

consider whether the adoption of an electronic vessel

tracking requirement was appropriate. Compl. ¶ 56.

The ASMFC did so, formally adopting the vessel

tracking program piloted under Addendum XXVI

when it issued Addendum XXIX. Id. ¶ 57.

2. The Requirements of Addendum XXIX

As noted, the Addendum requires that federally

licensed lobstermen install and activate an electronic

tracking device on their vessels by December 15, 2023.

Id. The device must be installed directly on the vessel

and remain activated so that it can continually

transmit location data at all times, even when the

vessel is not in use (i.e., when it is docked) or when it

is not fishing in federal waters (i.e., when the vessel is

being operated by a lobsterman for personal use). Id.

The electronic tracking data is in addition to data that

lobstermen are already required to self-report about

their location. Id.

The Addendum requires the electronic tracker to

have a once-per-minute “ping rate”; this means that

the device will “ping,” or collect the device’s longitude,

latitude, corresponding vessel identifier, and the date,

at one-minute intervals. Id. ¶ 58. The Addendum also

requires lobstermen to use a device that can track

their vessel’s location within 100 meters of accuracy.

Id.

Appendix 43a

Per the Addendum:

To date, the majority of spatial analyses of

lobster . . . fishery data ha[s] been constrained to

NOAA statistical areas and state management

areas, hindering the ability to quantify effort in

specific regions or identify important transit

routes and fishing grounds. The application of

electronic vessel tracking to this fishery could

significantly improve the information available

to fishery managers and stock assessment

scientists. In particular, a number of challenges

the fishery is currently facing pose a critical need

for electronic tracking data in the offshore

fishery.

Id. ¶ 59.

3. The Goals of Addendum XXIX

The Addendum enumerates four goals of its

electronic tracking requirement:

1. To improve spatial information data

concerning the location of where the majority

of fishing effort occurs by collecting spatial

data more frequently and with more accurate

precision;

2. To improve risk reduction efforts under the

[Take Reduction Plan] that are based on

models that estimate the location of vertical

buoy lines using effort data of a similarly

coarse resolution;

3. To promote and prioritize the development of

offshore

renewable

energy

and

the

conservation of federal waters, including wind

energy, aquaculture, and marine protected

areas that may all create marine spatial

Appendix 44a

planning challenges for the lobster and Jonah

crab fisheries; and

4. To combat difficulties associated with locating

gear for compliance checks and to increase the

efficiency and efficacy of enforcement efforts in

offshore federal management areas.

Id. ¶ 60. See also Addendum XXIX at 2.

“The Addendum further addresses the ASMFC’s

offshore enforcement goals by enabling the ASMFC to

use this newly available data to identify subjects for

investigations into potential illegal fishing practices.”

Compl. ¶ 61. The Addendum states, in part, that:

Enforcement personnel have consistently noted

that having the ability to differentiate when a

boat is steaming versus hauling is critical to

efforts to inspect gear and identify when

fishermen are using illegal gear. Even if location

data are not reported in real-time, once a fishing

location can be identified from vessel tracking

data, enforcement personnel would be able to go

to that location to inspect gear for appropriate

markings, buoys, escape vents, and ghost panels.

Given finite enforcement resources, information

on distinct fishing locations would improve the

efficiency and capability of offshore enforcement

efforts.

Id.

4. Data Sharing Pursuant to Addendum

XXIX

The data collected from the tracking devices is

shared with and managed by the Atlantic Coastal

Cooperative Statistics Program (ACCSP), which

maintains a database referred to as the Standard

Atlantic Fisheries Information System (SAFIS). Id.

Appendix 45a

¶ 62. SAFIS currently hold self-reported data from

lobstermen as required by Addendum XXVI in the

form of “SAFIS reports” or “trip tickets.” Id. SAFIS

will be the repository of both self-reported trip data

(eVTR data) and the new electronic monitoring data

collected by the vessel trackers. Id. The Addendum

indicates that ACCSP will match the two sources of

data by means of trip identification numbers and

other vessel registration information. Id. ¶ 63.

The Addendum “contains little to no information on

how this data will be protected from unauthorized use

and disclosure.” Id. ¶ 64. There are no references to

encryption, and there is no data governance policy

detailing the specific intended use of the data. Id.

Instead, “the Addendum gives the ASMFC and

MDMR broad discretion on how they can use the data

collected, without assurances that the data will be

immune from third party subpoena or how access by

third parties will be limited, even though ACCSP data

has been subject to subpoenas in the past.” Id.

Unlike electronic devices or tracking applications

available in the private marketplace, the Addendum

does not provide lobstermen with the ability to view

the reporting dashboards associated with the tracking

data or to agree to terms of service describing the data

collection process, nor does it provide any limits

regarding how and in what format the data can be

used. Id. ¶¶ 65-66. It also does not place any upward

limits on how sophisticated the data collection can be,

“i.e., whether the data collected is limited to spatial

data or whether other types of data such as voice,

speed, and other data categories can be collected.” Id.

¶ 66.

Appendix 46a

The Addendum enumerates only two exceptions to

the tracking requirement. Id. ¶ 67. First, the

requirement does not apply to vessels in Trap Area 6,

which covers state waters off the coast of New York

and Connecticut, because a federal permit is not

required for lobster fishing in that area. Id. Second,

the Addendum exempts holders of state-only lobster

permits without a federal commercial trap gear area

permit. Id.

The Addendum states that the ASMFC

“recommends

that

the

federal

government

promulgate all necessary regulations in Section 3.0 to

implement complementary measures to those

approved in this addendum” and “requests that

NOAA Fisheries publish the final rule on vessel

tracking by May 1, 2023, with implementation no

later than December 15,2023.” Id. ¶ 68. At the time of

the Plaintiffs’ filing of the complaint, no such final

federal rule has been published by NOAA fisheries,

much less implemented.6 Id.

E. The MDMR Rule

As noted, MDMR is responsible for enforcing

ASMFC’s amendments in the state of Maine. Id. ¶ 69.

On September 13, 2023, MDMR complied with the

Addendum by publishing a final rule entitled

“Chapter 25.98 Electronic Tracking Requirements for

Federally Permitted Lobster and Jonah Crab License

Holders” (the MDMR Rule). Id. ¶ 11 (citing 13-188

C.M.R. ch. 25,§ 98). The MDMR Rule required all

6 The Court recites this fact as recounted by Plaintiffs in their

complaint, Compl. ¶ 68; however, NOAA appears to have

implemented a final rule on May 30, 2024. See Removal of

American Lobster Effort Control Measures, 89 Fed. Reg.46825

(May 30, 2024) (to be codified at 50 C.F.R. pt. 697).

Appendix 47a

Maine lobstermen holding federal lobster permits to

comply with the tracking device installation

requirement by December 15, 2023. Id. ¶¶ 10, 70.

The MDMR Rule adopts the Addendum and also

lists five new actions that MDMR deems unlawful:

1. It is unlawful for a federally permitted lobster

. . . fishing license holder to fish for, take,

possess, or land lobster . . . taken with trap

gear without having an approved tracking

device installed aboard the permitted vessel

listed on their license.

2. It is unlawful for a federally permitted lobster

. . . fishing license holder to remove or have

removed the approved tracking device from

the permitted vessel listed on their license

without written approval from the [MDMR].

3. It is unlawful for a federally permitted lobster

. . . fishing license holder to allow the

permitted vessel listed on their license to be

operated in the coastal waters of the State

without the approved tracking device being

powered by an external power source at all

times; an exception to this requirement exists

when the vessel is moored or docked at berth.

4. The approved tracking device must remain in

an operational condition, minimally powered

by an internal battery, when a permitted

vessel is docked, moored, or removed from the

water. The license holder shall notify the

[MDMR] prior to an approved tracking device

being rendered inoperative in instances where

the permitted vessel is removed from the

coastal waters for an extended period of time

Appendix 48a

or for purposes of repairing or replacing an

approved tracking device.

5. It is unlawful for a person to tamper with an

approved tracking device or device signal;

tampering includes any activity that may

affect the unit’s ability to operate or signal

properly or to accurately compute or report the

vessel’s position. Tampering with an approved

tracking device is not considered to occur in

circumstances where an approved tracking

device is being repaired or replaced provided

the license holder has written approval from

the [MDMR].

Id. ¶ 69.

The MDMR Rule does not list specific punishments

for failure to comply with its requirements. Id. ¶ 71.

Rather, the rule “simply states that individuals will

not be punished for a device malfunction if the

fisherman notifies MDMR of the issue and makes

efforts to restore it to operation in an unspecified

‘timely manner.’” Id. Because the MDMR Rule does

not specify how enforcement will be handled in any

other exigent circumstance, “it remains unclear what

responsibilities and repercussions will be applied to

fishermen unaware of malfunction of their electronic

tracking device.” Id. Plaintiffs emphasize this as a

particular concern given that lobstermen are not

given access to the settings on the device itself, or in

the instance where a lobsterman is unable to repair

the device. Id. It is also unclear if lobstermen are

entitled to appeal any fines, penalties, or other

enforcement actions levied against them regarding

the MDMR Rule. Id.

Appendix 49a

Like the Addendum, the MDMR Rule requires

continuous tracking and monitoring of lobstermen

even when they are not fishing in federal waters,

despite the fact that lobstermen use their vessels in

other commercial capacities (such as scallop, tuna,

and menhaden fishing) as well as recreationally. Id.

¶ 72. Thus, lobstermen’s “movements will be tracked

on a minute-by-minute basis even during emergency

search and rescue operations.” Id.

“Upon information and belief, the scope of potential

privacy and security intrusions associated with the

MDMR Rule far exceed those of any other vessel (or

motor

vehicle)

tracking

requirement

ever

implemented in [Maine].” Id. ¶ 73. The existing

scallop tracking requirement, for example, mandates

that a tracker be active only when the vessel is

entering the federal scallop fishery and requires a

once-per-hour ping rate. Id.

1. The Particle TrackerOne Device

In November 2023, MDMR began sending federally

permitted lobstermen electronic trackers that

complied with the MDMR Rule. Id. ¶ 74. MDMR

received funding for the electronic trackers and the

associated data plans through a NOAA and National

Fish Wildlife Grant. Id. MDMR represents that it will

pay for the associated data plan for the first three

years of the program; it is unclear who will fund the

data plan beyond that period. Id.

MDMR used these grant funds “to select and

purchase one of the many available electronic trackers

meeting the specifications called for by the

Addendum.” Id. ¶ 75. The tracking device MDMR

selected is the “TrackerOne,” an electronic tracker

distributed by Particle, a U.S.-based company. Id.

Appendix 50a

Particle intends to store the data on their U.S.-based

servers and offers “dashboards” that allow users

visibility into the data being collected by the

TrackerOne device in real time. Id. The TrackerOne

is manufactured in China based on Particle’s design.

Id.

In the materials that accompany each TrackerOne

device, see Compl., Attach. 3, Fed. Permit Holder

Vessel Tracking Requirements (ECF No. 1-3) (Vessel

Tracking Requirements), MDMR requires that the

TrackerOne be installed directly on fishing vessels

either via a USB port or by hardwiring the tracker to

the vessel. Compl. ¶ 76. After installation, the

lobsterman is then responsible for ensuring that the

tracker remains activated at all ties, either by

running a generator or by using the vessel’s house

batteries. Id.

MDMR did not provide lobstermen with any of the

manufacturer’s specifications, privacy agreements,

dashboard access, or other information associated

with the tracker. Compl. ¶ 77. Lobstermen are thus

unaware of what data will be collected, how that data

will be used, or the circumstances under which that

data can be shared. Id. Plaintiffs note “[t]his is

particularly worrisome given that, in addition to

determining a user’s GPS coordinates, the

TrackerOne appears to be Bluetooth compatible, may

be adapted in order to collect audio information, and

employs a predictive algorithm that can anticipate

vessel movements.” Id.

F. Plaintiffs’ Attempts to Raise their Concerns

In the fall of 2023, the Plaintiffs voiced their

concerns about the Addendum to the Sustainable

Maine Fishing Foundation (SMFF), a non-profit

Appendix 51a

entity established to support efforts to sustain the

lobster fishery and protect the rights of the fishing

communities that depend on the lobster industry. Id.

¶ 78.

In response to the confidentiality, privacy, and

enforcement concerns voiced by many affected

lobstermen, SMFF corresponded with Commissioner

Keliher, in his official capacity, on December 13, 2023

to detail the lobstermen’s apprehensions and to

request further information on the TrackerOne and

how its data would be collected, stored, maintained,

and protected. Id. ¶ 79; see also Compl., Attach. 4, Dec.

13, 2023 Correspondence (ECF No. 1-4). SMFF also

requested an extension of the December 15, 2023

implementation date. Id. At the time of filing, SMFF

had not received a formal response to its

correspondence.7 Id. However, Commissioner Keliher

“informed a member of the [Maine Lobstermen’s

Union] that the tracking requirement was ‘out of his

hands.’” Id.

G. The Parties

The Plaintiffs in this case are individual Maine

lobstermen subject to the tracking device

requirements of the MDMR Rule. See id. ¶¶ 13-18.

Plaintiff Frank Thompson is an individual residing

in Vinalhaven, Maine. Compl. ¶ 13. Mr. Thompson

and his spouse, Jean Thompson, are co-owners of Fox

Island Lobster Company LLC (FILCO). Id. He is also

a federally permitted lobsterman and fishes 800 traps

in federal waters. Id. MDMR gave Mr. Thompson a

7 The Court restates this fact as recounted in Plaintiffs’

complaint. Compl. ¶ 79.

Appendix 52a

vessel tracker and required that he install the device

on his vessel by December 15, 2023. Id.

Plaintiff Joel Strout is an individual lobsterman

residing in Harrington, Maine and the President of

the District 4 Lodge of the International Association

of Machinist and Aerospace Workers, Local Lodge

207, formerly known as IAMAW Maine Lobstering

Union – Local 207 (MLU). Id. ¶ 14. All MLU members

hold active Maine commercial lobster and crab fishing

licenses. Id. Mr. Strout himself is a federally

permitted lobsterman who fishes 800 traps in federal

waters. Id. MDMR gave Mr. Strout a vessel tracker

and required that he install the device on his vessel

by December 15, 2023. Id.

Plaintiff Jason Lord is an individual lobsterman

residing in Pemaquid, Maine. Id. ¶ 15. Mr. Lord is a

federally permitted lobsterman who fishes 800 traps

in federal waters. Id. MDMR gave Mr. Lord a vessel

tracker and required that he install the device on his

vessel by December 15, 2023. Id.

Plaintiff Christopher Smith is an individual

residing in Jonesport, Maine. Id. ¶ 16. Mr. Smith is a

federally permitted lobsterman who fishes 800 traps

in federal waters. Id. MDMR gave Mr. Smith a vessel

tracker and required that he install the device on his

vessel by December 15, 2023. Id.

Plaintiff Jack Cunningham is an individual

residing in Bar Harbor, Maine. Id. ¶ 17. Mr.

Cunningham is a federally permitted lobsterman who

fishes 800 traps in federal waters. Id. MDMR gave Mr.

Cunningham a vessel tracker and required that he

install the device on his vessel by December 15, 2023.

Id.

Appendix 53a

Defendant Patrick Keliher is the Commissioner of

the MDMR, appearing as a Defendant in his official

capacity. Id. ¶ 18. Commissioner Keliher is also a

member of the ASMFC. Id. In his official role,

Commissioner Keliher “supervises and directs all

business conducted by the MDMR and is responsible

for ensuring that the actions, decisions, and rules of

that agency comply with all applicable laws and

regulations.” Id.

III. THE PARTIES’ POSITIONS ON WHETHER

DISMISSAL IS APPROPRIATE

A. The Plaintiffs’ Allegations

Plaintiffs challenge the adoption and enforcement

of the MDMR Rule on three grounds. Compl. ¶ 12.

They argue, first, that the MDMR Rule’s requirement

of a twenty-four-hour-a-day vessel tracker is an

unreasonable search and seizure in violation of due

process protections in the Fourth and Fourteenth

Amendments to the U.S. Constitution. Id. They argue,

second, that the MDMR Rule violates Plaintiffs’ equal

protection rights pursuant to the Fifth and

Fourteenth Amendments to the U.S. Constitution and

Article I, § 6-A of the Maine Constitution by failing to

describe any of the conditions under which it will be

enforced and the penalties for noncompliance, such

that the Court should find it to be void for vagueness. 8

8 The Plaintiffs state in their complaint that they bring their

federal equal protection claim pursuant to Articles V and XIV of

the U.S. Constitution. Compl. ¶ 12. As Plaintiffs’ counsel

acknowledged at oral argument, the references to Articles V and

XIV, not Amendments V and XIV, are an obvious typographical

error, and the Court has treated the references to be to the

Amendments.

Appendix 54a

Id. Third, Plaintiffs aver that the MDMR Rule

violates the Maine Administrative Procedure Act (the

Maine APA), 5 M.R.S. §§ 8001 et seq., because it is

arbitrary and capricious and contrary to law. Id.

1. Count One: The Fourth Amendment

Plaintiffs begin by informing the Court that the

Fourth Amendment to the U.S. Constitution protects

individuals from unreasonable searches and seizures;

a search or seizure is “unreasonable” when the

government trespasses into personal property,

without a warrant, in violation of a reasonable

expectation of privacy. Id. ¶ 21 (citing U.S. CONST.

amend. IV). Plaintiffs aver that the use of information

or evidence obtained through an unconstitutional

search and seizure is a violation of the due process

protections in the Fourteenth Amendment. Id. ¶ 22

(citing U.S. CONST. amend. XIV).

Plaintiffs point out that the United States Supreme

Court has held that long-term “GPS monitoring of

even a vehicle traveling on public streets constitutes

a search,” and that individuals have a reasonable

expectation of privacy in physical movements

captured by GPS monitoring. Id. ¶ 23 (citing

Carpenter v. United States, 585 U.S. 296, 309, 314-15

(2018) (“Whether the Government employs its own

surveillance technology . . . or leverages the

technology of a wireless carrier, we hold that an

The Court also notes that allegations of “void for vagueness”

are typically argued as a violation of due process rights, not equal

protection. However, the Court views the complaint “in the light

most favorable to the plaintiff,” Germanowski, 854 F.3d at 71,

and infers that Plaintiffs intended to bring Count Two as a

violation of their rights to due process.

Appendix 55a

individual maintains a legitimate expectation of

privacy in the record of his physical movements”).

These constitutional protections extend, Plaintiffs

argue, to an individual’s right to conduct a business

free from government incursion. Id. ¶ 24 (citing

Airbnb, Inc. v. City of New York, 373 F. Supp. 3d 467,

487-88 (S.D.N.Y. 2019) (finding businesspeople

“ha[ve] a constitutional right to go about [their]

business free from unreasonable official entries upon

[their] private commercial property”)). To comply with

the Fourth Amendment, Plaintiffs contend, “an

administrative search of a business must have a

limited scope, a relevant purpose, specificity in its

demands, and a neutral arbiter.” Id.

Turning to the case at hand, Plaintiffs contend that,

under the Fourth Amendment’s protection against

unreasonable searches and seizures, they “have a

reasonable expectation of privacy in the movements of

their fishing vessels and the precise location of their

lobster traps.” Id. ¶ 81. Plaintiffs argue that they also

have a reasonable expectation of privacy “in the data

produced by the tracker itself.” Id. ¶ 82. They assert

that they have a constitutional right to be free from

unreasonable official entries upon their private

commercial property when acting in a business

capacity, id. ¶ 83, and that the tracking requirements

set forth in the Addendum and the MDMR Rule

constitutes a Fourth Amendment search “insofar as

the Defendant, without a warrant, is tracking the

Plaintiffs’ movements while conducting business

activities within federally regulated waters, as well as

their personal movements while in state-controlled

waters.” Id. ¶ 84.

Appendix 56a

They aver that neither the ASMFC nor MDMR

have articulated the “limited scope, relevant purpose,

and specificity required to otherwise obtain this

satellite tracking data through a constitutional

administrative search.” Id. ¶ 85. “Because ASM[F]C

and MDMR intend to use the tracker’s surveillance

data in connection with offshore enforcement efforts,”

they opine, “the information being collected without

[a] warrant from the Plaintiffs, and potentially used

punitively against them, violates their right to be free

from the deprivation of life, liberty, and property

without due process of law.” Id. ¶ 86.

2. Count Two: Equal Protection

Plaintiffs assert that the guarantee of equal

protection enshrined in the Fifth and Fourteenth

Amendments of the federal Constitution and Article I,

§ 6-A of the Maine Constitution, “applies to the

conduct and action of the Defendant and its officials

and employees.” Id. ¶ 88. They aver that they “have a

constitutionally protected right to equal protection

under the law when the government regulates their

private property, movements, and business

activities.” Id. ¶ 89.

The MDMR Rule, Plaintiffs contend, does not

provide this constitutionally required protection and

is thus “void for vagueness in that it is designed to

enforce criminal and regulatory offenses without

defining the contours of offenses with sufficient

definiteness such that ordinary people can

understand what conduct is prohibited and in a

manner that does not encourage arbitrary and

discriminatory enforcement.” Id. ¶ 91.

“By way of example,” Plaintiffs continue, “the

MDMR Rule does not list the penalties for

Appendix 57a

noncompliance, indicate what offenses can be

prosecuted based on the data that is collected, what

enforcement efforts can be used in connection with the

tracking device, or whether any non-compliance has

implications on their fishing licensure.” Id. ¶ 92. They

also argue that the MDMR Rule does not state what

penalties, if any, may be imposed for unintentional, as

opposed to intentional, violations, “whether MDMR

will make efforts to distinguish server-side errors

from fisherman error,” or what appellate rights

plaintiffs have pursuant to the rule. Id. ¶ 93. “Given

the lack of clarity on how MDMR intends to

incorporate the ‘offshore enforcement’ efforts called

for by the Addendum, and the fact that there are no

detailed penalties in the MDMR rule for

noncompliance,” Plaintiffs conclude that “the MDMR

Rule is void for vagueness in that it violates the equal

protection guarantees provided by both the [U.S.] and

Maine constitutions.” Id. ¶ 94.

3. Count Three: The Maine APA

Plaintiffs inform the Court that rules promulgated

by a Maine administrative agency can be challenged

under the Maine APA on procedural and substantive

grounds, id. ¶ 49 (citing 5 M.R.S. § 8058(1)), and that

a court reviewing a challenged agency action:

must set aside an agency rule that 1) does not

contain the written statement required by

Section 8057-A; 2) involves a procedural effort

that is substantial and related to matters of such

central relevance to the rule that there is a

substantial likelihood that the rule would have

been significantly changed if the error had not

occurred; or 3) is arbitrary, capricious, an abuse

Appendix 58a

of discretion, or otherwise not in accordance with

law.

Id. ¶ 96 (citing 5 M.R.S. § 8058).

First, Plaintiffs establish that the Maine APA

requires agencies engaged in rulemaking to publish a

written statement explaining the factual and policy

basis for the proposed rule.9 Id. ¶ 48 (citing 5 M.R.S.

§ 8052(5)). They assert that the MDMR Rule violates

5 M.R.S. § 8052(5) by failing to “specify the operation,

fiscal impact, or information considered by MDMR in

its promulgation of the Rule,” in particular regarding

the MDMR Rule’s 1) specific enforcement provisions

or data governance policy, 2) “specification of the fiscal

implications to fisherm[e]n once the grant funding for

the trackers expires,” and 3) “specification as to how

MDMR arrived at a required ping rate or determined

a need for the tracking of licensees beyond the scope

of their lobster fishing activity.” Id. ¶ 97.

Second, Plaintiffs contend that the MDMR Rule

also violates the Maine APA because it is arbitrary

and capricious for being “inconsistent with the goals

of the MSA,” offering the following examples of the

MDMR Rule’s failures:

1. Does not contain an adequate explanation for

why minute-by-minute surveillance (as

opposed to the hourly surveillance called for by

9 Plaintiffs note that Maine APA § 8052(5) further requires

the written statement include information identifying persons

who commented on the proposed rule, including the

organizations they represent and a summary of their comments.

Compl. ¶ 48 (citing 5 M.R.S. § 8052(5)). They note that the same

section mandates agencies publish “their rationales for adopting,

or failing to adopt, any changes to proposed rules, or when they

draw findings and recommendations different from those

expressed by commentators.” Id. (citing 5 M.R.S. § 8052(5)).

Appendix 59a

the scallop tracking program) of federally

permitted lobster fishing vessels is required to

protect, conserve, grow or manage the

American lobster fishery;

2. Authorizes the tracking of lobster vessels in

state waters, when the vessel is being used for

other commercial purposes unrelated to

lobster fishing, and/or when the vessel is being

used recreationally;

3. Calls for a substantial increase in surveillance

without an explanation as to why the selfreported spatial information that fishermen

have gathered since 2018 under [the

Addendum] is insufficient information for

purposes

of

[Magnuson-Stevens

Act]

compliance and/or does not violate National

Standard 7, which specifically states that any

fishery plan shall “avoid unnecessary

duplication”;

4. Risks exposing the Plaintiffs’ trade secrets to

third-parties without any explanation of what

efforts, if any, are being taken to encrypt and

protect that information from third parties,

including whether third parties will be able to

subpoena this information or whether this

information will be available as part of the

administrative record in challenges to other

agency actions;

5. States that the information collected will be

shared with “appropriate state or federal

agencies” without defining those agencies that

MDMR deems to be appropriate, limit what

these agencies can subsequently do with that

information, or state whether this information

Appendix 60a

will be available to other agencies or private

parties interested in developing wind energy

projects in lobster fishing grounds;

6. Has a stated purpose of furthering renewable

energy projects, including wind energy, that is

well beyond the goals of FMPs authorized by

the [Magnuson-Stevens Act];

7. Requires a tracker that can be Bluetooth

enabled and is capable of collecting nonspatial

data; and

8. Is more expensive and intrusive than

necessary to achieve the Addendum’s stated

goals.

Id. ¶ 98.

Third, Plaintiffs argue that the MDMR Rule

violates the Maine APA by being contrary to law. Id.

¶¶ 12, 99. They specifically assert that the MDMR

Rule is contrary to the Consolidated Appropriations

Act, 2023 Pub. L. No. 117-328, Div. JJ, 136 Stat. 4459,

6089-92 (2022) (CAA), which includes a provision

specifying that the Take Reduction Plan is “sufficient

to ensure that the continued Federal and State

authorizations of the American Lobster . . . fisher[y]

are in full compliance with both the Marine Mammal

Protection Act [MMPA] and the Endangered Species

Act [ESA] until December 31, 2028.” Id. ¶ 12 (internal

quotation marks omitted).

Plaintiffs assert that the MDMR Rule is contrary to

the CAA because the former is not an extension of an

emergency rule existing at the time of the CAA’s

passage, but rather is a new regulation or

administrative action designed to bring the lobster

industry into compliance with the ESA and MMPA in

violation of the CAA’s express provision that the

Appendix 61a

existing amendments to the Take Reduction Plan are

to be deemed sufficient for compliance until December

2028. Id. ¶ 99. Plaintiffs further claim that the MDMR

Rule is contrary to law because “Section . . . 101

creates field preemption over regulations of federally

licensed lobster and Jonah Crab fisheries such that

MDMR has no authority to create state regulations

affecting them.” Id. Finally, Plaintiffs argue that the

Addendum and the MDMR Rule are both inconsistent

with the mandatory National Standards articulated

in the MSA. Id.

After acknowledging that federal review of state

administrative action or rules is “generally

inappropriate when a federal court is asked to answer

questions specific to state law concerns and

administration,” id. ¶ 50, Plaintiffs insist that their

challenge to the MDMR Rule “does not involve

questions specific to Maine state law because the

MDMR Rule adopts the federal policy contained in the

. . . Addendum that Maine is required to adopt under

federal law.” Id. ¶ 100. Plaintiffs suggest that their

challenge thus survives the narrowly tailored

Burford10 abstention doctrine, which requires federal

courts to show deference to state administrative

processes when “the rule or action involved pertains

only to state-law issues that serve a significant local

interest.” Id. ¶ 51 (citing Chico Serv. Station, Inc. v.

Sol Puerto Rico Ltd., 633 F.3d 20, 29 (1st Cir. 2011)

(emphasis added by Plaintiffs).

B. Commissioner Keliher’s Motion to Dismiss

Commissioner Keliher moves to dismiss Counts

One and Two in Plaintiffs’ complaint for failure to

state a claim upon which relief can be granted and

10 Burford v. Sun Oil Co., 319 U.S. 315 (1943).

Appendix 62a

Count Three for lack of subject matter jurisdiction.

Mot. to Dismiss at 9-24.

1. Federal Rule of Civil Procedure 12(b)(1)

a. Count Three: The Maine APA

Commissioner Keliher begins by moving to dismiss

Count Three against him on jurisdictional grounds

pursuant to Federal Rule of Civil Procedure 12(b)(1).

Id. at 9-10. Commissioner Keliher argues that “[t]he

Complaint on its face . . . establishes that the Court

does not have jurisdiction over [Count Three] because

the Eleventh Amendment to the U.S. Constitution

‘denies federal courts jurisdiction to award . . . relief

against state officials based upon violations of state

law.” Id. at 9 (quoting Guillemard-Ginorio v.

Contreras-Gomez, 585 F.3d 508, 529 (1st Cir. 2009)

(collecting cases). When a plaintiff asks a federal court

to compel state officers to comply with state law,

Commissioner Keliher says that “the only appropriate

response is to dismiss the state law claims,” “even in

a suit also bringing claims grounded in federal law.”

Id. (citing Cuesnongle v. Ramos, 835 F.2d 1486, 1497

(1st Cir. 1987) (“If the plaintiff wishes the federal

court to address the federal claims, bifurcation will be

the only option”); Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 121 (1984) (“neither pendent

jurisdiction nor any other basis of jurisdiction may

override the Eleventh Amendment”)).

In response to Plaintiffs’ argument that “[a]

challenge to the [MDMR] Rule does not involve

questions specific to Maine state law because the

[MDMR] Rule adopts . . . federal policy,” Compl. ¶ 100,

Commissioner Keliher says this “does not help them

for two reasons.” Mot. to Dismiss at 9. First,

Commissioner Keliher says, Plaintiffs’ suggestion

Appendix 63a

that the MDMR Rule “is a creature of state law is

simply incorrect” because the MDMR Rule arises from

the Addendum, “which is itself a creation of the

multistate [ASMFC] and not of any federal entity.” Id.

(citing Mot. to Dismiss, supra, sect. II). On this point,

Commissioner Keliher also avers that the MDMR

Rule does not have to be consistent with the MSA’s

National Standards. Id. (citing Mot. to Dismiss, supra,

n. 5).

“Second, and most importantly,” he says, the

relevant issue is whether Count Three seeks relief

against a state official based on violations of state law,

not whether the count involves “questions specific to

Maine law.” Id. at 9-10 (citing Guillemard-Ginorio,

585 F.3d at 529). In other words, Commissioner

Keliher opines, “the major problem with Count III is

this Court’s lack of jurisdiction under the Eleventh

Amendment, not the principles underlying Burford

abstention.” Id. at 10 (citing Compl. ¶¶ 50-52; Chico

Serv. Station, Inc., 633 F.3d at 29 (“the fundamental

concern in Burford is to prevent federal courts from

bypassing a state administrative scheme and

resolving issues of state law and policy that are

committed in the first instance to expert

administrative resolution”); Burford, 319 U.S. 315).

Concluding that the complaint, on its face, shows

that the Court lacks jurisdiction over Plaintiffs’ third

count because of Defendant’s sovereign immunity,

Commissioner Keliher accordingly asks the Court to

dismiss Count Three pursuant to Federal Rule of Civil

Procedure 12(b)(1). Id.

Appendix 64a

2. Federal Rule of Civil Procedure 12(b)(6)

a. Count One: The Fourth Amendment

Commissioner Keliher next argues the facts alleged

in Count One of Plaintiffs’ complaint, “even drawing

all reasonable inferences in Plaintiffs’ favor, show no

plausible path to relief because the [MDMR] Rule

unquestionably meets the requirements for a lawful

‘administrative search’” and thus does not violate the

Fourth Amendment. Id. at 10-11.

The

Fourth

Amendment’s

prohibition

on

“unreasonable searches and seizures,” Commissioner

Keliher admits, has long established that

“warrantless searches of private premises are

presumptively unreasonable.” Id. at 11 (quoting

United States v. Almonte-Baez, 857 F.3d 27, 31 (1st

Cir. 2017)) (citing Brigham City v. Stuart, 547 U.S.

398 (2006)). However, Commissioner Keliher

continues, courts have recognized several exceptions

to this presumption of unreasonableness. Id. “Of

relevance here,” he says, the United States Supreme

Court has found that “an ‘administrative search’ is a

warrantless search that ‘serve[s] a “special need”

other than conducting criminal investigations.’” Id.

(quoting City of Los Angeles v. Patel, 576 U.S. 409, 420

(2015)). Commissioner Keliher asserts that, generally,

these warrantless searches do not run afoul of the

Fourth Amendment if the subject of the search is

afforded an opportunity for pre-compliance review

before a neutral arbiter. Id. (citing Patel, 576 U.S. at

420).

When the search involves commercial premises in a

“closely regulated” industry, Commissioner Keliher

continues, “an even ‘more relaxed standard’ applies.”

Id. (citing Patel, 576 U.S. at 424). These searches do

Appendix 65a

not violate the Fourth Amendment so long as (1) there

is a substantial government interest behind the

regulatory scheme pursuant to which the search is

made; (2) the search is necessary to furthering that

interest; and (3) the regulatory scheme “perform[s]

the two basic functions of a warrant: it must advise

the owner of the commercial premises that the search

is being made pursuant to the law and has a properly

defined scope, and it must limit the discretion of the

inspecting officers.” Id. (citing Burger, 482 U.S. 691,

702-03 (1987); Rivera-Corraliza v. Morales, 794 F.3d

208, 216-17 (1st Cir. 2015) (articulating the “Burger

test”); United States v. Gonsalves, 435 F.3d 64, 67 (1st

Cir. 2006) (same)).

Commissioner Keliher explains that this “more

relaxed standard” is applied to administrative

searches of closely regulated industries because “[a]n

expectation of privacy in commercial premises . . . is

different from, and indeed less than, a similar

expectation in an individual’s home [and] is

particularly attenuated in commercial property

employed in ‘closely regulated’ industries.” Id. at 1112 (citing Burger, 482 U.S. at 700; Giragosian v.

Bettencourt, 614 F.3d 25, 29 (1st Cir. 2010) (“[T]he

owner of commercial property in a closely regulated

industry has a reduced expectation of privacy in those

premises”)). Commissioner Keliher notes that this

diminished expectation of privacy also applies when

the “premises” being searched is a vehicle. Id. at 12,

n. 14 (citing United States v. Maldonado, 356 F.3d

130, 135 (1st Cir. 2004) (“For purposes of the Burger

doctrine, we see no meaningful distinction between

commercial premises and commercial vehicles”)).

Turning to the instant case, Commissioner Keliher

concedes that the electronic tracking requirement in

Appendix 66a

the MDMR Rule constitutes a Fourth Amendment

search. Id. at 12 n.16. However, he contests Plaintiffs’

contention that the MDMR Rule amounts to an

unreasonable search in violation of the Fourth

Amendment. Id. at 12. Commissioner Keliher argues

that by requiring the installation of devices on

commercial lobster fishing vessels that transmit

vessel location data while the vessel is lobstering in

federal and state waters, “the [M]DMR Rule

constitutes an administrative search of a commercial

premises engaged in a closely regulated industry.” Id.

at 12.

Commissioner Keliher first argues that the

American lobster fishery is a closely regulated

industry, and then, by analyzing the MDMR Rule

under the three elements of the Burger test, submits

the MDMR Rule “complies with the well-established

requirements for such a search, . . . is consistent with

reasonable expectations of privacy[,] and does not

violate the Fourth Amendment.” 11 Id.

11 In a footnote, Commissioner Keliher says that his motion to

dismiss, “like Plaintiffs’ Complaint,” focuses on Plaintiffs’

privacy expectations in their movements while engaged in the

lobster fishery, and in the location of their lobster traps. Mot. to

Dismiss at 12 n.17 (citing Compl. ¶¶ 81-83).

He notes that “Plaintiffs assert in passing that fishing vessels

covered by the [M]DMR Rule are also occasionally used for other

purposes . . . . [b]ut these allegations do not support a plausible

inference that they have a reasonable expectation of privacy in

their movements while fishing for non-lobster species – activity

within the scope of the pervasively regulated commercial fishing

industry – or engaging in search-and-rescue operations at sea.”

Id. at 12-13 n.17.

Commissioner Keliher continues, “To the extent Plaintiffs

have a reasonable expectation of privacy in their commercial

fishing vessels’ movements while using these vessels for personal

Appendix 67a

i. Closely Regulated Industry

An industry is “closely regulated” when it is subject

to pervasive regulation and inspection, says

Commissioner Keliher. Id. at 13 (citing U.S. Dep’t of

Just. v. Ricco Jonas, 24 F.4th 718, 734 (1st Cir. 2022).

Commissioner Keliher contends that courts have

recognized commercial fishing as a closely regulated

industry. Id. at 13 (citing United States v. Raub, 637

F.2d 1205, 1209 (9th Cir. 1980) (“Commercial fishing

has a long history of being a closely regulated

industry”); Lovgren v. Byrne, 787 F.2d 857, 865 & n.8

(3d Cir. 1986) (“the fishing industry has been the

subject of pervasive governmental regulation since

the founding of the Republic”).

While he acknowledges that the Supreme Court has

not deemed commercial fishing to be closely regulated,

Commissioner Keliher opines that “a comparison with

other closely regulated industries demonstrates that

commercial fishing is closely regulated.” 12 Id. at 13. In

travel, Plaintiffs’ allegations do not support a plausible inference

the collection of location data from these trips as occasional

incident to the lawful administrative search regime falls outside

the de minimis exception to the Fourth Amendment’s warrant

requirement.” Id. at 13 n.17 (citing Pennsylvania v. Mimms, 434

U.S. 106, 111 (1977); Taylor v. City of Saginaw, 620 F. Supp. 3d

655, 664 (E.D. Mich. 2022); United States v. Jacobsen, 466 U.S.

109, 125 (1984)).

12 Commissioner Keliher acknowledges in a footnote that the

U.S. Supreme Court in Patel, 576 U.S. at 424, questioned the

scope of the closely regulated industry doctrine and noted that it

had only recognized four industries (liquor sales, firearms

dealing, mining, and automobile junkyards) as “closely

regulated.” Mot. to Dismiss at 13 n.18. However, Commissioner

Keliher says, “the Court’s actual holding in Patel was only that

‘hotels’ … do not constitute a closely regulated industry,” id.

citing Patel, 576 U.S. at 425-26, and, “post-Patel, courts have

Appendix 68a

Burger, he says, the Supreme Court concluded that

automobile junkyards were closely regulated because

operators must obtain a license, must maintain

records and make them available for government

inspection, must display their registration number in

various ways, and are subject to criminal penalties,

loss of license, or civil fees for failure to comply. Id. at

13-14 (citing Burger, 482 U.S. at 704-05).

Commissioner Keliher argues that “[a] sample of the

federal and state laws and regulations governing

commercial lobster fishing in Maine, of which this

Court may take judicial notice, . . . demonstrates

requirements that are just as stringent and wideranging as those in Burger, if not more so.”13 Id. at 14.

He includes examples of lobster fishery regulations

which, he says, support finding the industry to be

“closely regulated”:

1. The ACFCMA, 16 U.S.C. §§ 5101-5108, requires

the [ASMFC] to adopt [FMPs] and, should a

member state fail to comply with a [FMP], gives

the U.S. Secretary of Commerce authority to

declare a moratorium on that state’s fishery;

continued to recognize various industries as closely regulated.”

Id. (collecting cases).

13 Commissioner Keliher argues that “[a] court may take

judicially noticeable ‘matters of public record’ without converting

a motion to dismiss to a motion for summary judgment.” Mot. to

Dismiss at 14, n.19 (citing Boateng v. InterAmerican Univ., Inc.,

210 F.3d 56, 60 (1st Cir. 2000)). “In general,” he continues,

“federal courts may take judicial notice of federal and state laws

and regulations. Id. (citing 21B Charles Alan Wright & Arthur

R. Miller, Fed. Prac. & Proc. Evid. § 5102.1 (2d ed.); Greene v.

Rhode Island, 398 F.3d 45, 48-49 (1st Cir. 2005) (taking judicial

notice of a federal statute at the motion to dismiss stage)).

Appendix 69a

2. 50 C.F.R. Part 697 manages lobster fisheries by,

among other things, requiring vessel permits,

trap limits and tags, restricting gear in certain

areas, and providing for at-sea sampler/observer

coverage.

3. Under 46 C.F.R. Chapter 1, the U.S. Coast Guard

and the Department of Homeland Security

require commercial fishing vessels to carry

certain safety equipment.

4. Title 12, Chapter 619, of the Maine Revised

Statutes and Chapter 25 of [M]DMR’s rules, 13188 C.M.R. ch. 25, manages the lobster fishery

by, among other things, requiring licensure,

limiting the size of lobsters that may be taken,

requiring that certain lobsters be notched and

thrown back, and managing how lobster gear is

tagged and handled and how traps are

constructed.

5. Maine law provides that any person who

“receives a [marine resources] license . . . has a

duty to submit to inspection and search for

violations related to the licensure activities by a

marine patrol officer” and that “[w]atercraft or

vehicles . . . used primarily in a trade or business

requiring a license . . . may be searched or

inspected at any time.” 12 M.R.S. § 6306(1).

Mot. to Dismiss at 14-15.

In addition to the above, Commissioner Keliher

asserts that “people operating vessels at sea—

whether or not they are engaging in commercial

fishing—are subject to a network of regulations that

allow officials to board and inspect vessels.” Id. at 15.

While reasonable suspicion is needed to stop a

personal vehicle on a highway or a pedestrian on a

Appendix 70a

public street, “a vessel at sea . . . can be stopped for

document checks and safety inspections at any time

even without reasonable suspicion.” Id. (citing United

States v. Villamonte-Marquez, 462 U.S. 579, 592-93

(1983); United States v. Green, 671 F.2d 46, 53 (1st

Cir. 1982); State v. Giles, 669 A.2d 192, 193 (Me.

1996)). He informs the Court that “Maine law

specifically provides that ‘[m]arine patrol officers may

stop and board any watercraft at any time to inspect

its documents, licenses, and permits of the occupants

of the watercraft and to conduct a safety inspection.”

Id. (citing 12 M.R.S. § 6133(1)).

Based on the foregoing, Commissioner Keliher

concludes that commercial fishing is a closely

regulated industry and Plaintiffs thus have a “greatly

reduced expectation of privacy.” Id. He further notes

that Plaintiffs “have alleged no facts that would

support a different conclusion,” emphasizing that “in

their Motion for Preliminary Injunction, Plaintiffs

‘concede that commercial fishing is a closely[]

regulated industry.’” Id.; id. at 15 n.20 (citing Pls.’

Mot. for Prelim. Inj. at 12).

Commissioner Keliher proceeds to the first prong of

the Burger test.

ii. Substantial Government Interest

Commissioner Keliher acknowledges that, to

comply with the Fourth Amendment, “[a] lawful

administrative search of a closely regulated industry

must be necessary to furthering a substantial

government interest.” Id. at 15 (citing Burger, 482

U.S. at 702). He then avers that the MDMR

“undoubtedly has a substantial interest in regulating

the lobster fishery and ensuring its long-term viability

as an economic and cultural pillar of Maine society.”

Appendix 71a

Id. (citing 12 M.R.S. § 6021 (establishing MDMR in

part to “conserve and develop marine . . . resources”);

Tarabochia v. Adkins, 766 F.3d 1115, 1123 (9th Cir.

2014) (“To be sure, protecting the fishery is an

important governmental interest”)).

iii. Necessary to Further Substantial

Government Interest

Proceeding to the second prong of the Burger test,

Commissioner Keliher argues that the MDMR Rule is

necessary to further the government’s substantial

interest in the lobster fishery because, as stated in the

Addendum, “the detailed data based on a one-pingper-minute rate that will be collected from the

electronic trackers is necessary to accurately

characterizing activity in the fishery . . . which is

critical to addressing current and future threats to the

fishery and ensuring successful management through

improved stock assessment.” Id. at 16 (citing Mot. to

Dismiss, Attach 1., Addendum XXIX to Amend. 3 to

the Am. Lobster Fishery Mgmt. Plan; Addendum IV to

the Jonah Crab Fishery Mgmt. Plan § 2.1 (ECF No.

23-1) (Addendum XXIX)). Further, the “current

system of self-reported data lacks the accuracy,

reliability, and precision that would all [M]DMR and

other fishery managers to characterize a fishery

occurring over vast areas and far from shore.” Id.

(citing Addendum XXIX § 2.1). He concludes by

asserting that not only is MDMR required to

implement the MDMR Rule pursuant to its

obligations as a member of the ASMFC, but MDMR

has also concluded, based on scientific evidence and

its fishery management expertise, that the electronic

tracking requirement is necessary to protect and

manage the fishery. Id. Plaintiffs, he says, “have not

Appendix 72a

alleged facts supporting a plausible inference to the

contrary.” Id.

iv. Functions as Warrant

Commissioner Keliher argues that the MDMR Rule

also satisfies the third prong of the Burger test

because it “perform[s] the two basic functions of a

warrant” by “[1] advis[ing] the owner of the

commercial premises that the search is being made

pursuant to the law and has a properly defined scope,

and . . . [2] limit[ing] the discretion of the inspecting

officers.” Id. (citing Burger, 482 U.S. at 703).

Regarding the first element, Commissioner Keliher

avers that the MDMR Rule “clearly puts covered

lobstermen on notice that data regarding the location

of their fishing vessels is being collected per the

[MDMR] Rule’s terms.” Id. at 16-17 (citing Tart v.

Commonwealth of Mass., 949 F.2d 490, 498 (1st Cir.

1991) (finding adequate notice where the regulation

informed commercial fishermen “that routine

documentation checks might occur at any time,

particularly when fishing in Commonwealth coastal

waters or landing raw fish at Commonwealth ports”)).

Turning to the second element, Commissioner Keliher

says that the MDMR Rule “properly limits

government discretion by tracking only location data

of licensed commercial fishing vessels.” Id. at 17.

Citing cases in which courts found administrative

searches to comply with this element, he asserts that

the MDMR Rule is analogous to other administrative

search regimes courts have deemed lawful. Id.

Acknowledging that the MDMR Rule requires

vessel location data to be collected “around-the-clock

whenever a vessel is in operation,” Commissioner

Keliher opines that this does not violate the Burger

Appendix 73a

test: “the Burger [C]ourt . . . made clear that temporal

limitations on administrative searches are only

relevant to the extent they demonstrate that the

administrative search regime ‘place[s] appropriate

restraints upon the discretion of the inspecting

officers.’” Id. (citing Burger, 482 U.S. at 711).

Commissioner Keliher interprets the Supreme Court’s

holding to mean that “timing restrictions for timing

restrictions’ sake are not necessary,” and points to two

cases where federal courts of appeal have approved

administrative searches with no time limitations. Id.

at 17-19 (citing Tart, 949 F.2d at 497-99; United States

v. Ponce-Aldona, 579 F.3d 1218, 1226 (11th Cir.

2009)).

Commissioner Keliher argues that the MDMR Rule

“presents the circumstances identified in Tart and

Ponce-Aldona.” Id. at 19. As in Tart, he asserts, the

MDMR Rule’s collection of location data is “minimally

intrusive in the context of the ‘entire regulatory

scheme applicable to the commercial fishing

industry,’” id. (citing Tart, 949 F.2d at 499), and is

notably “less intrusive than the suspicionless

boarding and search of a vessel, which is already

authorized [in the lobster industry] under state and

federal law.” Id. (citing 16 U.S.C. §§ 5101-5108; 50

C.F.R. Part 697; 46 C.F.R. ch. 1; 12-619 M.R.S.; 13-188

C.M.R. ch. 25; 12 M.R.S. § 6306(1)). In addition, he

says, timing restrictions on the MDMR Rule’s

electronic data collection would not be feasible

because, like the commercial trucking industry at

issue in Ponce-Aldona, commercial lobstering does not

follow regular business hours,” id. (citing PonceAldona, 579 F.3d at 1226), such that timing

restrictions, or the ability of vessel owners to turn the

tracker on and off at their discretion, would “seriously

Appendix 74a

undermine the reliability and administrability of the

entire data collection program.” Id.

Further, Commissioner Keliher notes, the MDMR

Rule takes steps to limit its data collection. See id. at

6-7. The Particle TrackerOne collects the position of

the vessel once per minute while the vessel is moving,

but only once every six hours when the vessel is

moored or docked. Id. at 6 (citing Vessel Tracking

Requirements at 1). In addition, he says, although the

MDMR Rule makes it generally unlawful for license

holders to fish for lobster without an installed and

operating tracking device on their vessel, several

exceptions apply: (1) the license holder is not required

to keep the tracker externally powered (plugged in)

when the vessel is moored or docked; (2) the device

may be inoperative when the vessel is removed from

coastal waters for an extended period of time; (3) the

device may be inoperative for the purpose of being

repaired or replaced; and (4) if the device fails and

becomes inoperable, the license holder may continue

fishing with approval from MDMR while the situation

is addressed. Id. at 6-7 (citing Mot. to Dismiss, Attach.

2, Certificate of Authenticity §§ (B)-(D) at § (C) (ECF

No. 23-2) (MDMR Rule)).

Furthermore, Commissioner Keliher says, vessel

location data is transmitted to the ACCSP, which

maintains the SAFIS database. Id. at 7 (citing Compl.

¶ 62). Commissioner Keliher avers that “ACCSP has

protected confidential information relating to

fisheries—including self-reported Vessel Trip Report

data—for years using the same electronic transmittal

systems (approved by NMFS) and SAFIS database, as

described in Addendum XXIX.” Id. (citing Addendum

XXIX § 3.2.3). Further, he says, “the vessel location

data is ‘designated as confidential through Maine law

Appendix 75a

and regulation.’” Id. (quoting Vessel Tracking

Requirements at 2). Specifically, Commissioner

Keliher continues, “Maine law requites that fisheries

data be kept confidential and not be disclosed in a

manner that permits identification of any person or

vessel.” Id. (citing 12 M.R.S. § 6173). “[MDMR]

regulations also require that publicly released data do

not identify individual vessels or license holders.” Id.

(citing 13-188 C.M.R. ch. 5).

v. Reasonable Expectation of Privacy

Based on the foregoing, Commissioner Keliher

argues that the Plaintiffs’ contention that the MDMR

Rule violates their reasonable expectation of privacy

is “unavailing” because the administrative search

doctrine holds that a warrantless search of

commercial premises in a closely regulated industry is

reasonable within the meaning of the Fourth

Amendment so long as it meets the requirements for

an administrative search. Id. at 19-20 (citing Burger,

482 U.S. at 700).

In response to Plaintiffs’ citation of Carpenter in

support of an individual’s expectation of privacy “in

the record of his physical movements” as captured

through cell-site location information, Commissioner

Keliher responds “that case is entirely inapposite”

because, first, Carpenter involved data collected as

part of a criminal investigation and, second, the data

at issue in Carpenter “provide[d] an intimate window

into a person’s life, revealing not only his particular

movements, but through them his familial, political,

professional, religious, and sexual associations.” Id. at

20 (citing Carpenter, 585 U.S. at 310-11).

Commissioner Keliher next responds to Plaintiffs’

contention that the location of their lobster traps

Appendix 76a

amounts to a “trade secret.” Id. (citing Compl. ¶ 3). He

argues, first, that Plaintiffs “have not pleaded any

facts supporting [this] general assertion,” and “it is

difficult to comprehend how the location of Plaintiffs’

lobster traps could constitute a ‘secret’ considering

that (1) traps must be marked for identification . . .

and (2) traps are placed in the open ocean, where

marker buoys are subject to visual identification by

anyone in the vicinity.” Id. at 20-21 (citing Oliver v.

United States, 466 U.S. 170, 179 (1984) (noting that

so-called “open fields” “do not provide the setting for

those intimate activities that the [Fourth]

Amendment is intended to shelter from government

interference or surveillance”)). Second, Commissioner

Keliher says that “every lawful administrative search

may reveal to the government how an entity does

business; the target of an administrative search is

often precisely those documents and other materials

containing such information.” Id. at 21 (citing Ricco

Jonas, 24 F.4th at 734). Third, he posits that Plaintiffs

do not plausibly allege how the MDMR Rule, “which

only exposes vessel-specific data to the government

and keeps such data confidential from the broader

public, including fishing competitors,” will violate

their expectation of privacy in their “trade secrets.” Id.

In a footnote, Commissioner Keliher responds to

Plaintiffs’ concern with the potential use of vessel

location data in criminal or civil enforcement

proceedings. Id. at 21 n. 22 (citing Compl. ¶ 86). He

contends that “they have not pleaded any facts

supporting a plausible claim to relief,” and “[b]inding

precedent forecloses any argument that the use of

information collected through an administrative

search in separate enforcement proceedings renders

an

otherwise

lawful

administrative

search

Appendix 77a

unconstitutional.” Id. (citing Burger, 482 U.S. at 70405 (discussing an administrative search regime where

business owners were subject to criminal penalties,

loss of license, or civil fines for violations of the

regulations the searches were conducted to enforce);

Burger, 482 U.S. at 716 (“Nor do we think this

administrative scheme is unconstitutional simply

because, in the course of enforcing it, an inspecting

officer may discover evidence of crimes, besides

violations of the scheme itself”).

Commissioner Keliher concludes that Plaintiffs

have failed to plausibly allege the MDMR Rule’s

tracking requirement exceeds a lawful administrative

search of a closely regulated industry and asks the

Court to dismiss Plaintiffs’ Fourth Amendment claim

pursuant to Federal Rule of Civil Procedure 12(b)(6)

for failure to state a claim on which relief can be

granted. Id.

b. Count Two: Equal Protection

Commissioner Keliher next addresses Plaintiffs’

contention that the MDMR Rule violates the equal

protection clauses of the U.S. and Maine

Constitutions because it is vague. Id. at 22. Noting

first that a “void-for-vagueness” claim is usually

analyzed under the Due Process Clause, id. at 22 n.23,

Commissioner Keliher maintains that a rule is

unconstitutionally vague “only when it ‘fails to

provide a person of ordinary intelligence fair notice of

what is prohibited[] or is so standardless that it

authorizes or encourages seriously discriminatory

enforcement.’” Id. at 22 (citing United States v.

Williams, 553 U.S. 285, 304 (2008)). Further, he says,

“the Supreme Court has applied a less strict

vagueness test to commercial regulation . . . [a]nd

Appendix 78a

vagueness review is less exacting still where the law

at issue carries no criminal penalties.” Id. at 22 (citing

ACA Connects – Am.’s Commc’ns Assoc. v. Frey, 471 F.

Supp. 3d 318, 330 (D. Me. 2020)).

Turning to the case at hand, Commissioner Keliher

contends that Plaintiffs’ complaint does not identify

“what

terms

of

the

[M]DMR

Rule

are

unconstitutionally vague, in what way a person of

ordinary intelligence would not have fair notice of

what conduct the Rule prohibits, or how the Rule is so

standardless as to encourage seriously discriminatory

enforcement.” Id. Rather, he says, Plaintiffs say that

the rule is impermissibly vague because “the

consequences of violating it are unclear.” Id. at 22-23.

To this, Commissioner Keliher responds that, “even

assuming the precise penalties a person may incur

from violating a rule are the subject of constitutional

vagueness analysis, the consequences of violating this

Rule are clearly set out in State law.” Id. at 23. “Like

many civil violations,” he says, the MDMR Rule

“prohibits certain conduct, regardless of whether it is

intentional.” Id. (citing MDMR Rule § (C)). He notes

that, under Maine law, a violation of the MDMR Rule

is a “civil violation for which a fine of not less than

$100 for each violation may be adjudged.” Id. at 7 n.12

(citing 12 M.R.S. § 6174(3)). A violation of the MDMR

Rule, Commissioner Keliher claims, is thus “subject to

the same process and procedures—including appellate

procedures—as a violation of any other [M]DMR

Rule.” Id. at 23. He further informs the Court that a

civil violation of the M.R.S. “is subject to the due

process provided through a court adjudication, and

the [MDMR] may suspend a license after such

adjudication.” Id. at 7 n.12 (citing 12 M.R.S.

§ 6351(1)(D)). He says 12 M.R.S. § 6371(3)(A)

Appendix 79a

alternatively provides that the MDMR may

administratively suspend a license without a prior

court adjudication based on the license holder’s

commission of a marine resource violation; an

administrative suspension is subject to procedural

requirements and judicial review on appeal. Id. (citing

12 M.R.S. §§ 6371(3)(A), 6374). Commissioner Keliher

concludes that “[i]t is simply not plausible that

covered vessel owners are in the dark about the

potential consequences of their conduct, especially

considering that they operate in a highly regulated

industry and can be expected to know the applicable

regulations.” Id. at 23 (citing United States v. Facteau,

89 F.4th 1, 33 (1st Cir. 2023)).

Based on the foregoing, Commissioner Keliher

opines that the complaint “simply does not contain

factual allegations that support a plausible void-forvagueness claim” and the Court should thus dismiss

Count Two pursuant to Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. Id. at

24.

C. Amicus Curiae Atlantic States Marine

Fisheries Commission’s Memorandum in

Support of Defendant’s Motion to Dismiss

The ASMFC submitted an amicus curiae

memorandum in support of Commissioner Keliher’s

motion to dismiss Count One. Amicus Mem. in

Support of Mot. to Dismiss at 1.

1. Count One: The Fourth Amendment

The ASMFC asserts that Plaintiffs’ Fourth

Amendment argument, if accepted by the Court,

“would severely hamper governments’ ability to

manage fisheries in the public interest and to respond

in an informed manner to the serious challenges and

Appendix 80a

conflicts that often mark modern marine fishery

management—and would cause that harm without

sound support in Fourth Amendment precedent or

principle.” Id.

The ASMFC argues, first, that commercial fishing

in marine waters “is, and has long been, a highly

regulated activity” and “a privilege that comes with

conditions and limitations to protect the public’s

interests in maintaining sustainable fisheries, the

marine environment, and other resources that could

be affected by commercial fishing.” Id. at 1-2.

Commercial permit holders, it continues, “reasonably

understand that their activities on the water are

subject

to

observation

(including

by

law

enforcement),” are typically required to “carry

conspicuous markings on their vessels and on their

gear,” and may also be required to allow a

governmental agent or third-party observer onboard

throughout a fishing trip to monitor catch and

bycatch, document marine mammal interactions, and

ensure regulations compliance. Id. at 2.

Second, the ASMFC asserts that the Addendum’s

requirement of licensees does not conform to the

traditional premise of Fourth Amendment search

cases, which is that the government will gain “access

to ‘private’ things,” because the location of a vessel

“required to be marked prominently with various

identifiers” is not private. Id. In contrast with the

“constant video surveillance continually ongoing in

myriad workplaces (mass transit locations, banks,

building lobbies, etc.),” the Addendum’s tracking

requirement amounts to a limited intrusion which

“matches the legitimate management needs but does

not intrude unreasonably on any limited privacy

interests.” Id.

Appendix 81a

The ASMFC next emphasizes that it “did not

establish this minimally intrusive requirement lightly

or arbitrarily”; rather, it “had compelling reasons for

wanting to correct a long-recognized gap in

information about lobster fishing activity,” as “the

[ASMFC] repeatedly explained in the lengthy public

process that led to the Addendum’s adoption.” Id. at 3.

Plaintiffs “barely acknowledge and never seriously try

to refute the legitimacy or importance of the ASMFC’s

purposes

in

establishing

the

monitoring

requirement—or the direct way in which the

monitoring program will serve those purposes,” the

ASMFC avers. Id.

Turning to Plaintiffs’ concerns as to data collection,

the ASMFC points out that Plaintiffs bring a facial

challenge against the MDMR Rule, despite “hav[ing]

not shown there is an imminent risk it will be

unreasonable in any case, even their own.” Id. at 4

(emphasis in original). The ASMFC says:

The theoretical harms that [Plaintiffs] raise are

speculative and only arise based upon

speculations about someone other than the

Defendant doing something improper. For

example, their concerns that – despite being kept

in accord with procedures and by institutions

that have handled such data successfully – data

could be accidentally disclosed or misused, is

entirely conjectural and disregards the robust

and proven confidentiality regime that governs

the data collecting already taking place in the

program. Plaintiffs fail to adduce any real-world

examples – whether from the pilot version of the

program, from other jurisdictions where

electronic tracking is in effect, or even from more

Appendix 82a

intrusive fishery monitoring programs – to

support their speculative, theoretical fears.

Id. at 4-5.

Based on the foregoing, the ASMFC urges the Court

to reject the Plaintiffs’ Fourth Amendment claim and

grant Commissioner Keliher’s motion to dismiss. Id.

at 5.

D. The Plaintiffs’ Opposition

The Plaintiffs oppose Commissioner Keliher’s

motion to dismiss and the ASMFC’s amicus curiae

memorandum in support of dismissal. Pls.’ Opp’n at 1.

Before addressing the Defendant’s arguments for

dismissal of the three counts included in their

complaint, the Plaintiffs first reassert their position

that “[t]he constant monitoring required by the

MDMR Rule is what can only be characterized as a

drastic departure from past reporting requirements.”

Id. at 2. The data collected pursuant to the MDMR

Rule, they say, “will be uploaded into a digital map

interface that then can be queried by any number of

‘authorized federal and state administrators,’ as well

as other ‘state or federal entities with confidential

data access,’ to ‘query and visualize trip locations’

indiscriminately and apparently for any purpose.” Id.

(citing Addendum XXIX § 3.2.3). Indeed, they say,

recent reports “suggest that this data has already

been provided to students at Maine’s public

universities studying the fishery, as well as to the U.S.

Department of Energy’s National Renewable Energy

Laboratory as part of its efforts to develop floating

wind energy projects in the Gulf of Maine.” Id. (citing

Pls.’ Opp’n, Attach. 1, Considerations for Floating

Wind Energy Dev. in the Gulf of Me. at 10 (ECF No.

24-1) (NREL Rep.) (describing how “[e]fforts are being

Appendix 83a

made to gain more knowledge around commercial

fishing activities in federal waters including through

a new reporting requirement for lobstering in federal

waters.”)).

With this preface, the Plaintiffs turn to the

arguments made by Commissioner Keliher in his

motion to dismiss.

1. Federal Rule of Civil Procedure 12(b)(1)

a. Count Three: The Maine APA

In response to Commissioner Keliher’s argument

that Count Three must be dismissed for lack of subject

matter jurisdiction pursuant to the Eleventh

Amendment’s bar on federal courts granting relief

against state officials for violations of purely state

law, the Plaintiffs assert that Commissioner Keliher

“cites no authority for [its] proposition” that the

MDMR Rule “does not arise under federal law.” Id. at

4 (citing Mot. to Dismiss at 9). Plaintiffs contend that

“[t]he MDMR Rule specifically incorporates the

requirements of federal Addendum XXIX,” and

“specifies that it will apply to all ‘federally permitted’

lobster license holders regardless of whether or not

they are fishing within MDMR’s jurisdiction.” Id.

(citing 13 C.M.R. 188, ch. 25, § 98). Thus, Plaintiffs

contend, their challenge to the MDMR Rule

“necessarily and obviously exceeds the scope of a

simple challenge to a state action under a purely state

regulatory scheme,” because it concerns “the adoption

of a federal policy, promulgated under a federal rule,

that is aimed solely at federally permitted fishing

vessels for the purpose of protecting a federal fishery.”

Id. at 4-5 (emphasis in original).

Finally, Plaintiffs remind the Court that “[w]hile

the Eleventh Amendment prohibits a party from

Appendix 84a

bringing suit against a state in federal court, it does

not prohibit a party from bringing suit against a state

officer in federal court for prospective declaratory or

injunctive relief under federal law.” Id. (quoting

Asociación de Suscripción Conjunta del Seguro de

Responsabilidad Obligatorio v. Flores Galarza, 484

F.3d 1, 24 (1st Cir. 2007) (internal citations omitted)).

2. Federal Rule of Civil Procedure 12(b)(6)

a. Count One: The Fourth Amendment

Plaintiffs contend the Court should deny

Commissioner Keliher’s motion to dismiss as to Count

One because their complaint “properly pleads a

violation of the Plaintiffs’ Fourth Amendment rights

to be free from unreasonable searches and seizures.”

Id. at 5 (capitalization altered). The Plaintiffs argue

that “viewing the [MDMR] Rule in [its] full context

reveals it as both unnecessary to achieve its

overarching purpose and as having a scope greatly

exceeding that permitted for a constitutional

administrative search.” Id. at 6.

Plaintiffs first address Commissioner Keliher’s

argument that they have a “greatly reduced

expectation of privacy when engaging in an industry

that is subject to such pervasive regulation.” Id.

(quoting Mot. to Dismiss at 15). To this, they argue

that “[w]hile an expectation of privacy may admittedly

be reduced in a closely regulated industry, this does

not equate to a non-existent expectation of privacy.”

Id. (citing United States v. Hamad, 809 F.3d 898, 904

(7th Cir. 2016)) (emphasis added by Plaintiffs). In

addition, they argue their reasonable expectation of

privacy is heightened in the present case because the

scope of MDMR’s search extends beyond commercial

vessels fishing for lobsters in federal waters, “the only

Appendix 85a

closely-regulated industry the [MDMR] Rule seeks to

govern,” to encompass the tracking of vessels “while

they are docked or used for any number of other

utterly unregulated purposes.” Id.

Turning to the Burger test, the Plaintiffs argue that

the MDMR Rule is invalid because the

“administrative search” the rule authorizes is not

necessary to further a substantial government

interest. Id. at 6-7. While Plaintiffs concede that

MDMR has a substantial interest in “regulating the

lobster fishery and ensuring its long-term viability,”

Mot. to Dismiss at 15, they aver that the MDMR Rule

fails for lack of necessity to protect the long-term

health of the lobster fishery. Pls.’ Opp’n at 7. In

response to MDMR’s assertion that the one-ping-perminute rate “is necessary to accurately characterize[e]

activity in the fishery, including the locations and

density of commercial fishing gear, which ‘is critical to

addressing current and future threats to the fishery

and ensuring successful management through

improved stock assessment,’” id. (citing Mot. to

Dismiss at 16), Plaintiffs insist that “[t]he ASMFC’s

own statistics . . . reveal that the lobster fishery

currently is not in danger of being overfished.” Id. at

7. Plaintiffs characterize MDMR’s description of

“future threats” as an “inherently vague allegation”

for which MDMR “has made no effort to identify . . . ,

let alone articulate how its existing data collection

efforts . . . are insufficient to address these ‘threats.’”

Id.

Plaintiffs also assert that the MDMR Rule fails the

Burger standard for a reasonable search because it is

not sufficiently limited in scope. Id. It is unclear,

Plaintiffs assert, what “current threats” exist that

“could justify the near-constant surveillance of Maine

Appendix 86a

lobstermen and women that could not be addressed

through less intrusive means (such as limiting

tracking to vessels fishing for lobsters in federal

waters or to the lesser ‘ping rates’ employed by

trackers in other fisheries like the scallop fishery).” Id.

at 8. Acknowledging MDMR’s argument that its rule

is necessary because “common sense” supports that a

less-intrusive method “would compromise reliability

and increase the chances of operator error or

intentional evasion,” Mot. to Dismiss at 16, the

Plaintiffs say this “flies in the face of evidence that

Maine lobster fishermen have a history of regulatory

compliance.” Pls.’ Opp’n at 8.

Relatedly, Plaintiffs argue the “indefinite”

“duration of the search” shows that the MDMR Rule

“does not serve the same functions as a warrant.” Id.

at 9 (capitalization altered). “Unlike traditional

warrants,” they say, “the scope of the ‘warrant’

authorized by the [MDMR] Rule is almost limitless.”

Id. Plaintiffs distinguish the MDMR Rule from the

cases cited by MDMR on this basis, submitting (1) “the

searches undertaken in those cases are best described

as ‘spot checks’ narrowly designed to enforce specific

regulations, and each search was only approved when

the premises searched were actually engaged in the

regulated activity,” id. at 10 (citing Burger, 482 U.S.

691), and (2) the agencies permitted to conduct the

search in the cases cited by MDMR were limited to

those authorized to regulate the industry itself. Id. at

10.

b. Count Two: Equal Protection

Plaintiffs reassert that “questions remain about

how and to what extent MDMR will enforce the

[MDMR] Rule.” Id. at 11. Amendment 3 underlying

Appendix 87a

the Addendum allows MDMR and other agencies to

use the data collected pursuant to the MDMR Rule for

“offshore enforcement” purposes; however, Plaintiffs

say, “despite all of the ink spilled in defense of the

[MDMR] Rule, MDMR still fails to define what it

means by ‘offshore enforcement’ and whether this

[two]-word phrase is limited to regulations that

MDMR is tasked with enforcing or whether it extends

to regulations promulgated by other agencies.” Id.

“Because the permutations are endless,” Plaintiffs

contend, the MDMR Rule is “‘so standardless as to

encourage discriminatory enforcement’ because it

lacks articulated standards and ‘fails to provide a

person of ordinary intelligence fair notice of what is

prohibited.’” Id. (quoting Mot. to Dismiss at 24).

Based on the foregoing, Plaintiffs request that the

Court deny Commissioner Keliher’s motion to dismiss

as to all three counts in their complaint. Id.

E. Commissioner Keliher’s Reply14

As a preliminary matter, Commissioner Keliher

asserts that Plaintiffs’ complaint and opposition to his

motion to dismiss “blatantly misquote” the Addendum

Commissioner Keliher informs the Court that his reply

incorporates his opposition to the motion for preliminary

injunction (ECF No. 16) and “limits [itself] to addressing

Plaintiffs’ few new substantive arguments and correcting

misstatements presented in their Opposition [to dismissal].”

Def.’s Reply at 1.

The Court accordingly compared Commissioner Keliher’s

reply to the Plaintiffs’ opposition to the motion to dismiss with

Commissioner Keliher’s opposition to the motion for preliminary

injunction. However, the Court did not find any arguments in

Commissioner Keliher’s opposition to injunctive relief that did

not also appear in his reply in the motion to dismiss sequence.

Thus, the Court confines its restatement of Defendant’s Reply to

the assertions raised in that submission.

14

Appendix 88a

and “thus mischaracterize” its purpose and the

purpose of the MDMR Rule. Def.’s Reply. at 2. He

continues to say that the Addendum explains that

collection of high-resolution data regarding activities

in the American lobster fishery is necessary to

respond to various challenges facing the industry,

“including, but not limited to, the development of

offshore renewable energy and the inevitable

imposition on the industry of further whale risk

reduction measures.” Id. (citing Addendum XXIX

§ 2.1). However, he says, the Addendum and the

MDMR Rule “in no way purport to promote the

development

of

offshore

renewable

energy

development or the implementation of whale risk

reduction efforts.” Id. Commissioner Keliher says,

“Plaintiffs take one section of the Addendum out of

context to assert that data collected pursuant to the

[M]DMR Rule will be accessed ‘indiscriminately and

apparently for any purpose’,” and argues this

“assertion is squarely contradicted by the Addendum

itself.” Id. (quoting Pls.’ Opp’n at 2) (citing Addendum

XXIX §§ 1.0, 2.1).

Commissioner Keliher similarly asserts that the

NREL Report attached by Plaintiffs to their

opposition to the motion to dismiss is “entirely

inapposite,” arguing it “has no bearing on Defendant’s

Motion to Dismiss,” “was produced by two entities not

involved with [the Addendum] or the [M]DMR Rule,”

and its “distinct purpose” is to discuss considerations

for developing offshore wind energy. Id. at 3 (citing

NREL Rep. at iv, vii). To the extent the NREL Report

discusses the Addendum, he avers, it is as an example

of “investments in data collection for lobster and other

commercial fishing activities [to] begin to close

important ocean-use knowledge gaps,” id. (citing

Appendix 89a

NREL Rep. at 40); this “does not in any way support

Plaintiffs’ suggestion that data collected pursuant to

the [M]DMR Rule is being shared with ‘students.’” Id.

(citing Pls.’ Opp’n at 2).

1. Federal Rule of Civil Procedure 12(b)(1)

a. Count Three: The Maine APA

Turning to Plaintiffs’ response to the motion to

dismiss Count Three for lack of subject matter

jurisdiction, Commissioner Keliher argues that

“Plaintiffs continue to fail to grapple with the fact that

Count Three alleges that Defendant has violated state

law, Maine’s [APA].” Id. at 4 (emphasis in original).

Commissioner Keliher argues that “[o]n its face,

Count III asks a federal court to order a state agency

to comply with state law.”15 Id. Precedent is clear that

the Court lacks jurisdiction over this claim, he says,

and “Plaintiffs have not cited a single case supporting

abrogation here of this principle of black letter law.”16

Id.

2. Federal Rule of Civil Procedure 12(b)(6)

a. Count One: The Fourth Amendment

15 Commissioner Keliher additionally opines that Plaintiffs’

argument is inconsistent with their characterization of the

MDMR Rule as “involve[ing] the adoption of a federal policy,

promulgated under a federal rule.” Def.’s Reply at 4 (citing Pls.’

Opp’n at 4-5).

16 Commissioner Keliher asserts that Plaintiffs’ citation to

cases involving Burford abstention, including Chico Serv.

Station, Inc., 633 F.3d 20, are inapposite. Def.’s Reply at 4, n.4.

Plaintiffs’ citation to Flores Galarza, 484 F.3d 1, he says, “also is

inapposite because that case dealt with a federal court’s

jurisdiction to order relief ‘against a state officer … under federal

law.” Id. (citing Flores Galarza, 484 F.3d at 24) (emphasis added

by Defendant).

Appendix 90a

Addressing Plaintiffs’ response in opposition to his

motion to dismiss Count One, Commissioner Keliher

argues the Plaintiffs “substantively shift away from

the Fourth Amendment theory pleaded in their

complaint, to no avail.” Id. (capitalization altered). He

opines that while Plaintiffs’ complaint focused on

their privacy interests in the location of their lobster

traps (“that is, their privacy interests while engaging

in commercial lobstering”), their opposition to the

motion to dismiss instead focuses on the implications

of the tracking requirement when their vessels are

being used for purposes other than commercial

lobstering. Id. at 4-5. This shift, he says, “does not help

Plaintiffs, for two reasons”: first, in assessing a Rule

12(b)(6) motion, a court must “assume the truth of all

well-pleaded facts and indulge all reasonable

inferences that fit the plaintiff’s stated theory of

liability.” Id. at 5 (quoting Redondo-Borges v. U.S.

Dep’t of Hous. & Urban Dev., 421 F.3d 1, 5 (1st Cir.

2005) (emphasis added by Defendant). “This Court

therefore must assess the plausibility of the theory

pleaded in Plaintiffs’ Complaint,” which is that “the

[M]DMR Rule violates the Fourth Amendment

because it impinges on Plaintiffs’ reasonable

expectation of privacy while engaging in commercial

lobstering.” Id. (emphasis added by Defendant).

Second, he says the arguments Plaintiffs advance

in their opposition “have failed to plausibly plead”

that either Plaintiffs specifically, or federally

permitted commercial lobstering vessels generally,

typically use their licensed lobstering vessels for nonlobstering purposes such that the MDMR Rule raises

either “accuracy concerns (when a vessel is used for

commercial fishing purposes other than lobstering)”

or “non-incidental privacy concerns when a vessel is

Appendix 91a

used for non-commercial fishing purposes).” Id.

(emphasis in original). On the issue of accuracy,

Commissioner Keliher says that Plaintiffs have not,

for example, pleaded that scallop fishing by

commercial lobstering vessels is so prevalent, and

that the movement patterns of vessels while

scalloping is so indistinguishable from the patterns of

vessels while lobstering, that the American lobster

fishery data “will be substantially inaccurate.” Id.

Regarding non-incidental privacy concerns, he

contends “it is simply not plausible that grocery runs

or a family picnic in a cove would be misinterpreted as

lobstering.” Id. (citing Pls.’ Opp’n at 8). Commissioner

Keliher adds that the MDMR adopted the ping-perminute data collection rate “precisely because it best

allows for distinguishing between the distinctive

movement pattern of setting and hauling lobster traps

and other activities, such as ‘steaming’ (transitioning)

and remaining stationary.” Id. at 5-6 (citing

Addendum XXIX at §§ 2.2.1, 2.2.5; 15-16, 36-37).

Commissioner Keliher further contends privacy

concerns miss the point, arguing that “Plaintiffs’

newfound emphasis on their purported privacy

interests while not engaging in commercial fishing is

misplaced because the premises in question—

commercial fishing vessels—already may be boarded

and inspected at any time by government authorities

without reasonable suspicion of a violation.” Id. at 6

(citing Mot. to Dismiss at 15) (emphasis added by

Defendant). Commissioner Keliher characterizes the

Plaintiffs’ insistence of their right to a heightened

expectation of privacy when using their vessels for

non-commercial purposes as “simply false.” Id.

Responding to Plaintiffs’ argument that active

management of the American lobster fishery is

Appendix 92a

unnecessary because the fishery “currently is not in

danger of being overfished,” id. (citing Pls.’ Opp’n at

7), Commissioner Keliher says Plaintiffs’ citation in

support is a 2020 stock assessment, and “it is

axiomatic that the state of a fishery changes over time

due to harvesting practices, natural conditions, and

anthropogenic environmental impacts, like climate

change.” Id. In addition, he says, Plaintiffs “are

entirely off-base in suggesting that the future

imposition of regulations concerning right whales is

not a legitimate concern.” Id. (citing Pls.’ Opp’n at 8).

b. Count Two: Equal Protection

Turning to Count Two, Commissioner Keliher says

that although Plaintiffs “speculate about future uses

of the location data collected pursuant to the [M]DMR

Rule,” they “have not pleaded that the [M]DMR fails

to provide affected lobstermen with fair notice of what

the Rule itself requires.” Id. at 6-7 (emphasis in

original). The MDMR Rule, he states, “plainly

requires installation of tracking devices on certain

licensed lobster vessels and prohibits disabling those

devices while the vessels are in operation.” Id. at 7

(citing MDMR Rule §§ (B)-(D)). Thus, Plaintiffs’

“[s]peculation about future uses of the location data

collected by the tracking devices is not properly a part

of the constitutional vagueness analysis regarding the

[M]DMR Rule.” Id.

Based on the foregoing, Commissioner Keliher

requests that the Court grant his motion and order the

dismissal of the Plaintiffs’ complaint.

IV. MOTION TO DISMISS LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(1)

“A motion to dismiss an action under Rule 12(b)(1)

. . . raises the fundamental question whether the

Appendix 93a

federal district court has subject matter jurisdiction

over the action before it.” United States v. Lahey Clinic

Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir. 2005) (internal

citation omitted). “The burden falls on the plaintiff to

clearly allege facts demonstrating that he is a proper

party to invoke federal jurisdiction.” Dubois v. U.S.

Dep’t of Agric., 102 F.3d 1273, 1281 (1st Cir. 1996)

(citation and internal quotation marks omitted); see

also Me. Council of the Alt. Salmon Fed’n v. Nat’l

Marine Fisheries Serv. of the Nat’l Oceanic

Atmospheric Admin., 203 F. Supp. 3d 58, 75 (D. Me.

2016) (“The plaintiff, as the party asserting subject

matter jurisdiction, has the burden of demonstrating

its existence”); Fábrica de Muebles J.J. Álvarez,

Incorporado v. Inversiones Mendoza, Inc., 682 F.3d 26,

33-34 (1st Cir. 2012) (“The party asserting jurisdiction

has the burden of demonstrating the existence of

federal jurisdiction”). In ruling on a Rule 12(b)(1)

motion, the Court “must construe the complaint

liberally, treating all well-pleaded facts as true and

indulging all reasonable inferences in favor of the

plaintiff.” Aversa v. United States, 99 F.3d 1200, 120910 (1st Cir. 1996). “If the Court determines at any

time that it lacks subject-matter jurisdiction, the

court must dismiss the action.” FED. R. CIV. P.

12(h)(3).

B. Federal Rule of Civil Procedure 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) requires

dismissal of a complaint that “fail[s] to state a claim

upon which relief can be granted.” FED. R. CIV. P.

12(b)(6). To state a claim, a complaint must contain,

at minimum, “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). In other words, a complaint must

contain “sufficient factual matter, accepted as true, to

Appendix 94a

‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is facially plausible when “the plaintiff pleads

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

the misconduct alleged.” Id. (citing Twombly, 550 U.S.

at 556). Plausible means “‘something more than

merely possible’ or ‘merely consistent with a

defendant’s liability.’” Germanowski v. Harris, 854

F.3d 68, 71-72 (1st Cir. 2017) (internal citation

omitted) (quoting Schatz, 669 F.3d at 55); OcasioHernández v. Fortuño-Burset, 640 F.3d 1, 11 (1st Cir.

2011) (quoting Iqbal, 556 U.S. at 678). Evaluating the

plausibility of a claim is a “‘context-specific’ job that

compels [judges] ‘to draw on’ [their] ‘judicial

experience and common sense.’” Schatz, 669 F.3d at

55 (quoting Iqbal, 556 U.S. at 679).

This is a “two-step analysis.” Cardigan Mountain

Sch. v. N.H. Ins. Co., 787 F.3d 82, 84 (1st Cir. 2015).

“First, the court must distinguish ‘the complaint’s

factual allegations (which must be accepted as true)

from its conclusory legal allegations (which need not

be credited).’” García-Catalán, 734 F.3d at 103

(quoting Morales-Cruz, 676 F.3d at 224; see also

Schatz, 669 F.3d at 55 (stating that a court may

“isolate and ignore statements in the complaint that

simply offer legal labels and conclusions or merely

rehash cause-of-action elements”). “Second, the court

must determine whether the factual allegations are

sufficient to support ‘the reasonable inference that the

defendant is liable for the misconduct alleged.’”

García-Catalán, 734 F.3d at 103 (quoting Haley v.

City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)).

Appendix 95a

V. MOTION TO DISMISS DISCUSSION

A. Federal Rule of Civil Procedure 12(b)(1)

1. Count Three: The Maine APA

In its entirety, the Eleventh Amendment to the U.S.

Constitution states: “The Judicial power of the United

States shall not be construed to extend to any suit in

law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by

Citizens or Subjects of any Foreign State.” U.S.

CONST. amend. XI.

In Hans v. Louisiana, 134 U.S. 1 (1890), the

Supreme Court “determined that federal jurisdiction

over suits against unconsenting States ‘was not

contemplated by the Constitution when establishing

the judicial power of the United States.’ In short, the

principle of sovereign immunity is a constitutional

limitation on the federal judicial power established in

Art. III.” Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 98 (1983) (internal citations omitted)

(quoting Hans, 134 U.S. at 1); see also Alden v. Maine,

527 U.S. 706, 728-29 (1999) (“The Eleventh

Amendment confirmed, rather than established

sovereign immunity as a constitutional principle; it

follows that the scope of the States’ immunity from

suit is demarcated not only by the text of the

Amendment alone but by fundamental postulates

implicit in constitutional design”). The Supreme

Court’s “decisions [] establish that ‘an unconsenting

State is immune from suits brought in federal courts

by her own citizens as well as by citizens of another

state.’” Pennhurst, 465 U.S. at 100 (quoting Emps. v.

Missouri Pub. Health Dep’t, 411 U.S. 279, 280 (1973)).

“This jurisdictional bar applies regardless of the

nature of the relief sought.” Id.

Appendix 96a

Given the “vital role of the doctrine of sovereign

immunity in our federal system,” the Supreme Court

has “required an unequivocal expression of

congressional intent to ‘overturn the constitutionally

guaranteed immunity of the several States.’” Id. at 99

(quoting Quern v. Jordan, 440 U.S. 332, 342 (1979)).

Otherwise, “a State may at its pleasure waive its

sovereign immunity by consenting to suit.” Coll. Savs.

Bank v. Fla. Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 670 (1999).

The Maine Department of Marine Resources is not

named in the complaint, but Commissioner Keliher is

sued in his official capacity as Commissioner of the

department. “The general rule is that relief sought

nominally against an officer is in fact against the

sovereign if the decree would operate against the

latter.” Id. at 101 (quoting Hawaii v. Gordon, 373 U.S.

57, 58 (1963) (per curiam)); see also Monell v. Dep’t of

Soc. Servs., 436 U.S. 658, 690 n.55 (1978) (official

capacity suits are “another way of pleading an action

against an entity of which an officer is an agent”).

“The doctrine of Ex parte Young, which ensures that

state officials do not employ the Eleventh Amendment

as a means of avoiding compliance with federal law, is

regarded as carving out a necessary exception to

Eleventh Amendment immunity.” P.R. Aqueduct &

Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146

(1993) (discussing Ex parte Young, 209 U.S. 123

(1908)). But this “exception is narrow.” Id. (citing

Green v. Mansour, 474 U.S. 64, 73 (1985); Cory v

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