Amicus Curiae Brief — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

No. 25-1105

In the

Supreme Court of the United States

FRANK THOMPSON,

Petitioner,

v.

CARL WILSON, COMMISSIONER, MAINE

DEPARTMENT OF MARINE RESOURCES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the First Circuit

BRIEF OF AMICUS CURIAE

LANDMARK LEGAL FOUNDATION

IN SUPPORT OF PETITIONER

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 544-6100

matt@landmarklegal.org

April 22, 2026

121046

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

STATEMENT OF INTEREST OF AMICUS

CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I N T RODUC T ION A N D SU M M A RY OF

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

I.

The Supreme Court Should Grant Certiorari

To Refine Its Test For Determining What

Constitutes A “Closely Regulated” Industry . . . 5

A. The Test for Defining a “Closely

Regulated” Industry has Created

Confusion in Lower Cour ts and

Threatens to Unacceptably Grow

Beyond an Exception . . . . . . . . . . . . . . . . . . 10

B. GPS Tracking of Dual-Use Equipment

Increases the Personal Intrusion of

Warrantless Searches and Heightens

the Importance of Clearly Defining

“Closely Regulated” Industries . . . . . . . . . 12

C. This Court has Numerous Options to

Fix the Test for “Closely Regulated”

Industries . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Brigham City v. Stuart,

547 U.S. 398 (2006) . . . . . . . . . . . . . . . . . . . . . . . . 18, 19

Calzone v. Olson,

931 F.3d 722 (8th Cir. 2019) . . . . . . . . . . . . . . . . . . . . 11

Camara v. Municipal Court of City and County

of San Francisco,

387 U.S. 523 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

City of L.A. v. Patel,

576 U.S. 409 (2015) . . . . . . . . . . 4, 6, 8-12, 14, 16, 17, 19

Colonnade Catering Corp. v. United States,

397 U.S. 72 (1970) . . . . . . . . . . . . . . . . . . . . . . 4, 6, 7, 17

Donovan v. Dewey,

452 U.S. 594 (1981) . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 17

E.M.D. Sales, Inc. v. Carrera,

604 U.S. 45 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Frank v. Maryland,

359 U.S. 360 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Glacier Northwest, Inc. v. Int’l Bhd. of Teamsters

Loc. Union No. 174,

598 U.S. 771 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

iii

Cited Authorities

Page

Liberty Coins, LLC v. Goodman,

880 F.3d 274 (6th Cir. 2018) . . . . . . . . . . . . . . . . . . . . 12

Loper Bright Enter. v. Raimondo,

603 U.S. 369 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Mexican Gulf Fishing Co. v.

United States Dep’t of Com.,

60 F.4th 956 (5th Cir. 2023) . . . . . . . . . . . . . . . . . . . . 12

New York v. Burger,

482 U.S. 691 (1987) . . . . . . . . . . . . . . . . . . . . . . . 4-10, 15-17

Owner-Operator Indep. Drivers Ass’n v.

United States Dep’t of Transp.,

840 F.3d 879 (7th Cir. 2016) . . . . . . . . . . . . . . . . . 12, 14

Paxton’s Case,

1 Quincy 51 (Mass. 1761) . . . . . . . . . . . . . . . . . . . . . . . .3

People v. Weaver,

12 N.Y.3d 433, 909 N.E.2d 1195 (2009) . . . . . . . . . . . 15

See v. Seattle,

387 U.S. 541 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Biswell,

406 U.S. 311 (1972) . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 17

iv

Cited Authorities

Page

United States v. Jamieson-McKames Pharm., Inc.,

651 F.2d 532 (8th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 15

United States v. Jones,

565 U.S. 400 (2012) . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

UNITED STATES CONSTITUTION

U.S. Const. amend. IV . . . . . . . . . . . . . . . . . . . . 2-5, 18, 19

STATUTES AND REGULATIONS

16 U.S.C. §§ 5101–5108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

49 C.F.R. pt. 395, subpt. B, app. A, § 4.7.3 (2026) . . . . . 14

105 Mass. Code Regs. 970.000–.011 (2012) . . . . . . . . . . 15

13–188 C.M.R. Ch. 25, § 98 (2023) . . . . . . . . . . . . . . . . . . 2

OTHER AUTHORITIES

Ja mes M. Acheson & Roy Ga rd ner, Th e

Evolutio n of Co n ser vatio n Rul es an d

Nor ms in the Maine Lobster Industr y,

53 Ocean & Coastal Mgmt. 524 (2010) . . . . . . . . . . . 18

Casey Adams, Motel Blues: Inspecting Patel’s

Impact on the Law of Administrative Searches,

51 N.M. L. Rev. 457 (2021) . . . . . . . . . . . . . . . . . . . . . . 9

v

Cited Authorities

Page

John Adams, From John Adams to William

Tu d o r, Sr., 2 9 Ma r c h 1817, Nat ion a l

Archives: Founders Online, https://founders.

a r c h i ve s .g ov/do c u ment s /A d a m s / 9 9 - 0 2 02-6735 (last visited Apr. 17, 2026) . . . . . . . . . . . . . . . 3

Omar Al-Ubaydli & Patrick McLaughlin, A

Numerical Database on Industry-specific

Regulations for All U.S. Industries and

Federal Regulations, 1997-2012, Mercatus

Center (Nov. 12, 2014), https://www. mercatus.

org/research/working-papers/regdata . . . . . . . . . . . 10

Kofi Ampaabeng, Jonathan Nelson & Elise AmezDroz, Healthcare RegData: Quantifying

the Volume of Healthcare Regulations,

Mercatus Center (Apr. 15, 2020), https://

w w w.mercatus.org/research/policy-briefs/

healthcare-regdata-quantify ing-volumehealthcare-regulations . . . . . . . . . . . . . . . . . . . . . . . . 11

About Us, Atlantic State Marine Fisheries

C om m i s s ion , ht t p s: //a s m fc .or g /ab out /

(last visited Apr. 18, 2026) . . . . . . . . . . . . . . . . . . . . . . 2

Scott R. Baker, Nicholas Bloom & Steven J. Davis,

Measuring Economic Policy Uncertainty,

131 Q.J. Econ. 1593 (2016) . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

Orin S. Kerr, Searches and Seizures, in The

Heritage Guide to the Constitution 424

(David F. Forte & Matthew Spalding, eds. 2d

ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Note, Rethinking Closely Regulated Industries,

129 Harv. L. Rev. 797 (2016) . . . . . . . . . . . . . . . . . 9, 11

Maine Lobsterman Challenges Unconstitutional

24/7 GPS Tracking, Pac. Legal Found.,

https: //pa ci f iclega l.org /ca se /t hompsonmaine-lobstermen-gps-tracking/

(last visited Apr. 19, 2026) . . . . . . . . . . . . . . . . . . . . . . 1

1

STATEMENT OF INTEREST OF AMICUS CURIAE1

Amicus Cur iae Landmark Legal Foundation

(“Landmark”) is a national public-interest law firm

committed to preserving the principles of limited

government, separation of powers, federalism, originalist

construction of the Constitution and individual rights.

Landmark has submitted briefs supporting protection of

constitutional and legal rights for businesses in E.M.D.

Sales, Inc. v. Carrera, 604 U.S. 45 (2025); Loper Bright

Enter. v. Raimondo, 603 U.S. 369 (2024); and Glacier

Northwest, Inc. v. Int’l Bhd. of Teamsters Loc. Union No.

174, 598 U.S. 771 (2023).

Landmark urges this Court to grant the petition.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Petitioner Frank Thompson is subject to warrantless

twenty-four-hour surveillance of his private mode of

transportation because he works in a “closely regulated”

industry. Maine Lobsterman Challenges Unconstitutional

24/7 GPS Tracking, Pac. Legal Found., https://pacificlegal.

org/case/thompson-maine-lobstermen-gps-tracking/

(last visited Apr. 19, 2026). There is nothing in the state’s

regulation prohibiting the sharing of his location data

1. No counsel for a party authored this brief in whole or

in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, its members, or its counsel made

a monetary contribution to its preparation or submission. Counsel

for Amicus Curiae provided timely notice to counsel for all parties

of its intention to file this brief.

2

with law enforcement. 13–188 C.M.R. Ch. 25, § 98 (2023).

And the surveillance does not stop for his personal travel

when he is off duty. Pac. Legal Found., supra. Even his

trips to the hospital could be monitored. Id. This constant

surveillance is a condition of his employment. Id. If he

does not submit to it, he could lose his license to continue

working in his nearly life-long vocation. Id. But he does

not transport radioactive materials, hazardous chemicals,

or military munitions. To the best of Amicus Curiae’s

knowledge, he is not a former felon or a criminal suspect.

Mr. Thompson is a lobster fisherman.

Since 2023, the Maine Department of Marine

Resources (MDMR) has enforced a warrantless GPS

surveillance program on its lobster fishermen under rule

13–188 C.M.R. Ch. 25, § 98 (2023). This rule went into effect

after the Atlantic States Marine Fisheries Commission

(ASMFC) passed “Addendum XXIX to Amendment 3

to the American Lobster Fishery Management Plan;

Addendum IV to the Jonah Crab Fishery Management

Plan.” Pet. App. at 40a. The ASMFC is an interstate

regulatory body empowered by federal statute, 16 U.S.C.

§§ 5101-5108, to “ensure the health and sustainability

of vital marine resources” and “protect the fisheries

that are essential to the Atlantic coast’s ecosystems,

economies, and communities.” About Us, Atlantic State

Marine Fisheries Commission, https://asmfc.org/about/

(last visited Apr. 18, 2026). The MDMR rule purports

to fall within an exception to the Fourth Amendment,

which has historically permitted warrantless searches

of a few closely regulated industries like firearms and

mining. United States v. Biswell, 406 U.S. 311 (1972);

Donovan v. Dewey, 452 U.S. 594 (1981). This exception

has now expanded to the point where a lobsterman’s

3

vessel’s every move is tracked under regulations whose

“primary purpose,” according to the First Circuit, is

protecting a North Atlantic whale species. Pet. App. at

5a. This state-mandated intrusion is far afield from the

Framers’ vision of an individual’s liberties protected by

a limited government.

As early as the 1760s, abuses such as general warrants

and writs of assistance by the British in the colonies

began to foment revolution and lay the groundwork for

the Fourth Amendment. Writs of assistance “permitted

the customs agents to search any place in which smuggled

goods might be concealed, even if there was no particular

suspicion the goods were there.” Orin S. Kerr, Searches

and Seizures, in The Heritage Guide to the Constitution

424, 424 (David F. Forte & Matthew Spalding, eds. 2d

ed. 2014). In Paxton’s Case, 1 Quincy 51 (Mass. 1761),

James Otis Jr. represented a group of Boston merchants

challenging the writs. Although Otis failed to win the case,

his five-hour oration before the Massachusetts Superior

Court, attended by John Adams, articulated principles

that would later inspire the Fourth Amendment. After

the Revolution, John Adams would write of Otis’s speech

in Paxton’s Case, “[e]very Man of an immense crouded

Audience appeared . . . ready to take Arms against Writs

of Assistants. Then and there was the first scene of the first

Act of opposition to the Arbitrary claims of Great Britain.

Then and there the Child Independence was born.” John

Adams, From John Adams to William Tudor, Sr., 29

March 1817, National Archives: Founders Online, https://

founders.archives.gov/documents/Adams/99-02-02-6735

(last visited Apr. 17, 2026).

4

In response to the crown’s open-ended and intrusive

powers, the Fourth Amendment protects citizens from

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

IV. However, while search warrants are traditionally

required to invade the privacy of persons and property, the

applicability of the Amendment to commercial property

has evolved over time. Eight years after upholding a

warrantless safety inspection of a private residence

in Frank v. Maryland, 359 U.S. 360 (1959), the Court

reversed course. In See v. Seattle, 387 U.S. 541 (1967),

and Camara v. Municipal Court of City and County of

San Francisco, 387 U.S. 523 (1967), the Court required

warrants for administrative searches of both businesses

and homes. Starting in 1970, however, the Court began

to narrow the impact of the holdings in See and Camara.

Colonnade Catering Corp. v. United States, 397 U.S. 72

(1970). The Court did so with a series of decisions which

held that warrantless searches of commercial property

of closely regulated industries are acceptable. However,

they must be necessary, well-defined, and in furtherance

of a substantial government interest.

While warrantless searches of certain commercial

property were initially intended to be a narrow exception

to the rule, today the Fourth Amendment protections

of small business owners are at risk of serious erosion.

Under the current test, announced in New York v. Burger,

482 U.S. 691 (1987), and refined by City of L.A. v. Patel,

576 U.S. 409 (2015), lower courts may find nearly any

industry closely regulated, including the one at issue

here: lobstering. Such activity does not resemble any

of the other industries which this Court has found to be

closely regulated, such as mining, junkyards, alcohol, and

firearms. Granting certiorari allows the Court to clarify

5

the test for determining closely regulated industries and

conclude that lobstering does not fall within that category.

The need for the Court’s involvement is heightened

by the troubling regulatory trend to use more intrusive

technology to collect information beyond the workplace or

duty hours. This case involves collecting locational data

on dual-use property, namely boats which are used both

for business and personal activities. The ambiguity of the

closely regulated industry test thus creates confusion for

individuals about the status of their dual-use property.

And it opens the door for mass warrantless searches of

such property because of its business use, without proper

guidance on how to consider its personal use. This issue is

an additional justification for granting certiorari.

ARGUMENT

I.

The Supreme Court Should Grant Certiorari To

Refine Its Test For Determining What Constitutes

A “Closely Regulated” Industry.

While the Fourth Amendment applies to commercial

property, this Court has made clear that “[a]n expectation

of privacy in commercial premises . . . is different

from, and indeed less than, a similar expectation in an

individual’s home.” New York v. Burger, 482 U.S. 691, 700

(1987). And “[t]his expectation is particularly attenuated

in commercial property employed in ‘closely regulated’

industries.” Id. Accordingly, the Court has ruled that

warrantless administrative searches on closely regulated

industries do not violate the Fourth Amendment.

6

The Court has addressed the parameters of this

exception in five cases over the past half century, but this

line has not always been clear. In the first four, the Court

found that the businesses subject to warrantless searches

were closely regulated industries. Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970) (alcoholic

beverage dealer); United States v. Biswell, 406 U.S. 311

(1972) (firearms dealer); Donovan v. Dewey, 452 U.S. 594

(1981) (mining company); New York v. Burger, 482 U.S.

691 (1987) (junkyard business). In City of L.A. v. Patel,

576 U.S. 409 (2015), however, the Court found that hotels

were not.

The factors used to determine whether an industry

is closely regulated have varied. And factors which had

been determinative in earlier cases later became less

crucial. Beginning with Colonnade, the Court held that

a warrantless search of an alcohol distributor was not

per se unreasonable because the alcohol industry had

been “long subject to close supervision and inspection.”

Colonnade, 397 U.S. at 77. Liquor had been subject to

regulation since the seventeenth century in England,

demonstrating a historical tradition of regulation. Id. at

75. That tradition included permitting law enforcement

officials to inspect facilities producing or selling alcohol

without a warrant. Id.

Later, in Biswell, the Court concluded that an industry

with far less of a historical tradition of regulation could

nonetheless be closely regulated. “Federal regulation of

the interstate traffic in firearms is not as deeply rooted in

history as is governmental control of the liquor industry.”

Biswell, 406 U.S. at 315. Yet warrantless searches of

firearm dealers were acceptable for purposes of public

7

safety, being of “central importance to federal efforts to

prevent violent crime.” Id. The Court also added a new

wrinkle—that the sale of firearms was a “pervasively

regulated business” further solidifying its status under

the exception. Id. at 316.

Donovan applied nearly the same reasoning as Biswell

to the mining industry. The Court emphasized that “the

mining industry is among the most hazardous in the

country and that the poor health and safety record of this

industry has significant deleterious effects on interstate

commerce.” Donovan, 452 U.S. at 602. As in Biswell, the

public safety risks of this industry permitted warrantless

searches. The Court stated that “the pervasiveness

and regularity of the federal regulation . . . ultimately

determines whether a warrant is necessary” for inspection

of closely regulated industries. Id. at 606. It explicitly

rejected that historical tradition was the sole controlling

factor. Id. So while the Court’s decision in Colonnade

turned on historical tradition, the pervasiveness of

regulation determined the outcome in Donovan, and to a

lesser extent in Biswell.

Six years after Donovan, the Court held junkyards

to also be a closely regulated industry in Burger. The

Court found that regulations for “the activity of vehicle

dismantling are extensive,” which was determinative.

Burger, 482 U.S. at 704. And, like in Colonnade, the Court

gave some weight to the length of regulation of “related

industries,” namely salvage industries generally. Id. at

707. The decision also provided the prevailing test for

warrantless searches of closely regulated industries:

8

First, there must be a “substantial” government

interest that informs the regulatory scheme

pursuant to which the inspection is made. . . .

Second, the warrantless inspections must be

“necessary to further [the] regulatory scheme.”

. . . [Third], “the statute’s inspection program,

in terms of the certainty and regularity of its

application, [must] provid[e] a constitutionally

adequate substitute for a warrant.”

Burger, 482 U.S. at 702-03 (citations omitted).

As explained below, the Burger test has several

problems. Certainly, it is susceptible to being overly

inclusive, thereby permitting more warrantless searches.

The government can claim a substantial interest in

countless policy areas. Furthermore, an overly ambitious

regulatory scheme is likely to require more intrusive

enforcement out of necessity. And regular searching over

time can justify more searching.

After Burger, the Court held that hotels were not a

closely regulated industry in Patel. Justice Sotomayor,

writing for the majority, noted first that “nothing inherent

in the operation of hotels poses a clear and significant

risk to the public welfare,” unlike, for example, mines or

firearms. Patel, 576 U.S. at 424. Further, the regulations

which hotels were subject to, including “maintain[ing]

a license . . . conspicuously post[ing] their rates, and

meet[ing] certain sanitary standards,” applied as much to

them as to many other Los Angeles businesses. Id. at 425.

And if “such general regulations were sufficient to invoke

the closely regulated industry exception, it would be hard

to imagine a type of business that would not qualify.” Id.

9

Justice Scalia disagreed, arguing that Anglo-American

history had a long tradition of hotel regulation, and hotels

in Los Angeles were subject to comprehensive regulation.

Id. at 432-34 (Scalia, J., dissenting).

The limited nature of the Patel decision, addressing

almost exclusively the industry at issue, has left the

state of warrantless searches in the business context

unsettled. Since Patel, the Court has not readdressed

its test for what constitutes a closely regulated industry.

This has left lower courts in the difficult position of

using industry-specific rulings to discern where other

industries fall. See Casey Adams, Motel Blues: Inspecting

Patel’s Impact on the Law of Administrative Searches,

51 N.M. L. Rev. 457 (2021). On a spectrum ranging from

alcohol and junkyards to hotels, where does lobstering

fall, for example? What makes an industry more similar

to firearms or less similar to mining for purposes of its

closely regulated status? These difficult questions raise a

number of issues which this Court has an opportunity to

resolve with a more generally applicable ruling. And as

one observer has noted, “Patel’s mode of analysis is not

conducive to building coherent common law” because it

“did not expressly distinguish Burger” and even adopted

reasoning from the Burger dissent. Note, Rethinking

Closely Regulated Industries, 129 Harv. L. Rev. 797, 809

(2016). “Consequently, it will be difficult for lower courts

to say whether regulations comparable to those in Burger

are sufficient to constitute a comprehensive scheme.” Id.

10

A.

The Test for Defining a “Closely Regulated”

Industry has Created Confusion in Lower

Courts and Threatens to Unacceptably Grow

Beyond an Exception.

Defining a closely regulated industry has been no

easy task. As explained above, the relative importance of

factors in the analysis is inconsistent, but problems arise

from the factors themselves as well.

Pervasiveness has appeared most frequently in these

decisions and, in the most recent cases, seems to be the

focal point of analysis. However, the caselaw does not

define close or pervasive with precision, and it does not

indicate the weight given to different kinds of regulation.

In some instances, the same type of regulation has cut in

opposite directions in different cases. For example, the

fact that a hotel must maintain a license in Los Angeles

was discounted as evidence of pervasive regulation in

Patel, but licensing was considered operative in Burger.

Patel, 576 U.S. at 425; Burger, 482 U.S. at 704. The

precedent for determining closely regulated industries

is thus at least partially at odds with itself.

Furthermore, regulation of industries has become

increasingly pervasive across the entire economy. The

regulatory state increased dramatically after Burger.

Omar Al-Ubaydli & Patrick McLaughlin, A Numerical

Database on Industry-specific Regulations for All

U.S. Industries and Federal Regulations, 1997-2012,

Mercatus Center (Nov. 12, 2014), https://www.mercatus.

org/research/working-papers/regdata (showing federal

regulations increased from nearly 850,000 to over

1,000,000 from 1997 to 2012). And the number of federal

11

regulations still totals nearly 1,100,000 regulations after

Patel. Kofi Ampaabeng, Jonathan Nelson & Elise AmezDroz, Healthcare RegData: Quantifying the Volume

of Healthcare Regulations, Mercatus Center (Apr. 15,

2020), https://www.mercatus.org/research/policy-briefs/

healthcare-regdata-quantifying-volume-healthcareregulations (indicating the total number of federal

regulations was 1,085,063 in 2018). Even without further

Supreme Court precedent loosening the closely regulated

industry category, the expansion of the regulatory state

will eventually allow the exception to swallow the rule.

And caselaw in the lower courts indicates that this

process is underway. In the almost four decades since this

Court last held that an industry was closely regulated,

lower courts have added numerous industries from fields

as varied as trucking to food production and taxidermy

to the category. Note, supra at 805-06 (citing over twenty

cases in lower courts finding various industries to be

closely regulated).

The Patel decision further muddies the waters for

lower courts. It “leaves two ambiguities with respect to

intrinsic dangerousness: whether this factor is necessary

and what sorts of risks are covered.” Note, supra at 810.

Circuit courts appear to be at odds as to whether Patel

changed the standard by making a “clear and significant

risk to the public welfare” a requirement for determining

whether an industry is closely regulated, or whether it

merely reiterated an already existing factor. Patel, 576

U.S at 424.

The Eighth Circuit, in Calzone v. Olson, 931 F.3d

722, 724 (8th Cir. 2019), appeared to interpret Patel as

12

requiring that an industry be intrinsically dangerous to

be considered closely regulated. By contrast, in Liberty

Coins, LLC v. Goodman, 880 F.3d 274 (6th Cir. 2018),

the Sixth Circuit rejected the argument that Patel had

dramatically narrowed the test, concluding that precious

metal dealers could be considered closely regulated. In

Mexican Gulf Fishing Co. v. United States Dep’t. of

Com., 60 F.4th 956, 968 (5th Cir. 2023), the Fifth Circuit

held that “Patel did not establish a new requirement

for the closely-regulated-industry test.” But the circuit

court reasoned that the lack of evidence of a risk to public

welfare supported the conclusion that the Department

of Commerce could not require charter fishing boats to

install GPS locators on their vessels. Id. at 970. And, in

Owner-Operator Indep. Drivers Ass’n v. United States

Dep’t. of Transp., 840 F.3d 879, 894 (7th Cir. 2016), the

Seventh Circuit noted that “the Supreme Court signaled

in Patel that courts should consider whether the industry

is inherently dangerous.” This discord further reinforces

the conclusion that lower courts need guidance from

this Court on how to apply the test for closely regulated

industries.

B. GPS T racking of Dual-Use Equipment

Increases the Personal Intrusion of Warrantless

Searches and Heightens the Importance

of Clearly Defining “Closely Regulated”

Industries.

When the MDMR rule was promulgated in 2023,

lobstering boats that coastal Maine residents use for

personal and business purposes became subject to

near-continuous warrantless surveillance. Pet. App. at

150a-155a, 192a. This rule made no accommodation for

13

the lawful personal use of these boats that would enjoy

considerably higher privacy protections as required on

any other vessel. Pet. App. at 150a-155a. The impact

of this type of rule may be felt in industries far beyond

commercial lobstering. Numerous types of business

equipment can serve dual purposes for personal and

business use. Certainly, this includes Petitioner’s boat,

but it also could include a farmer’s machinery, a service

technician’s vehicle, or a beer distributor’s laptop. Despite

the frequency of these overlaps, the constitutional status

of these objects as they move through the day remains

unaddressed in Supreme Court precedent. None of the

five cases touching on closely regulated industries explain

how to classify dual-use objects or consider a tailoring

requirement for surveillance programs to reasonably

accommodate lawful personal use.

The intrusive nature of the MDMR rule here raises

the stakes of the category dispute for those making

their living in all types of potentially closely regulated

industries. Relevant both for lobster vessels and other

vehicles like automobiles, “GPS monitoring generates

a precise, comprehensive record of a person’s public

movements that reflects a wealth of detail about her

familial, political, professional, religious, and sexual

associations.” United States v. Jones, 565 U.S. 400,

415 (2012) (Sotomayor, J., concurring). The increasing

capabilities of surveillance technologies, combined with

the integration of business technology into daily life,

have created an important issue for the Court to address.

Whereas vehicle junkyards, liquor stores, gun shops, and

mines are discrete premises that can be searched, many

modern businesses and workplaces are not so easily

cabined. Physicians often carry pagers for work at all

14

hours, and creative businesses can be run fully online

from people’s personal computers in their homes, to

name a few examples. In the absence of further guidance,

the trend of expansion of the closely regulated industry

exception stands to facilitate business surveillance that

is inextricably tied to the business owner’s or employee’s

personal life.

While the surveillance of these lobster boats is one

such industry that exemplifies this trend, trucking is

another. Since 2017, electronic logging devices (ELDs)

have been required by the Federal Motor Carrier Safety

Administration on commercial motor vehicles which track

location at regular intervals. These locations are recorded

during all travel, whether for business or authorized

personal use, with location precision decreasing for the

latter. 49 C.F.R. pt. 395, subpt. B, app. A, § 4.7.3 (2026).

Close surveillance of truckers and the trucking industry

may well be justified by invoking an “intrinsic[] danger[]”

Patel, 576 U.S. at 424 n.5, of roadway collisions, as was

the case in the Seventh Circuit. Owner-Operator Indep.

Drivers Ass’n, 840 F.3d 879. Nevertheless, the personal

intrusion of this surveillance goes beyond what this Court

has previously considered in the business context.

And if the limiting principle to this kind of surveillance

is just the closely regulated industry designation, it

all but necessitates buying personal replacements of

these items to avoid unforeseen surveillance regimes.

This can represent a major financial burden for workers

whose companies purchase expensive objects like boats

and automobiles. Even for those outside of businesses

currently designated as closely regulated, the experience

of the Petitioner here is instructive. He became subject

15

to invasive surveillance decades after he entered the

industry, showing the looming potential that this could

happen to other types of businesses. Pet. App. at 190a-191a.

Ta ke , for e x a mple , a ph a r m a c eut ic a l s a le s

representative in Massachusetts with a company car that,

as an employment benefit, he can use in off hours. He is

subject to serious restrictions on the interactions he can

have with prescribing physicians, as granular as the food

he can provide during educational visits and to whom he

can provide it. 105 Mass. Code Regs. 970.000–.011 (2012).

His industry, pharmaceuticals, also happens to be among

the many which have been labeled closely regulated by

at least one circuit court. See United States v. JamiesonMcKames Pharm., Inc., 651 F.2d 532 (8th Cir. 1981). If

the government’s interest in protecting right whales and

lobster populations is sufficient for Burger test purposes to

merit constant warrantless surveillance, round-the-clock

surveillance of pharmaceutical fleet vehicles to prevent

overprescription kickback schemes seems possible.

To ensure that these representatives do not take trips

to restaurants with physicians that violate the food gift

rules, constant surveillance may be an attractive option

to overzealous regulators. Government entities could

gain access to troves of personal information about the

sales representative akin to the personal information

in the instant case. The sales representative may need

to immediately purchase a new vehicle to avoid ceding

privacy on sensitive “trips the indisputably private nature

of which takes little imagination to conjure.” Jones, 565

U.S. at 415 (2012) (Sotomayor, J., concurring) (quoting

People v. Weaver, 12 N.Y.3d 433, 441, 909 N.E.2d. 1195,

1199 (2009)). But for average Americans and small

16

business owners, these are the kinds of financial burdens

that they may hope to be able to plan well in advance.

Here, this Court has an opportunity to help them

do so. A straightforward definition of closely regulated

industries would give notice to business owners and

employees who could be subjected to surveillance schemes

like this one. As aforementioned, this notice is crucial

given surveillance’s increasing ease and potential scope.

Moreover, it would enable people to understand what it

would cost for them personally to retain their privacy and

decide if this price is worthwhile.

C.

This Court has Numerous Options to Fix the

Test for “Closely Regulated” Industries.

Despite the test’s potential for overbreadth, the Court

has at least three paths available to continue the Burger

test enforcement project it set upon in Patel and provide

further guidance to lower courts. First, it could set a more

complete definition for pervasive regulation. This path

necessarily leaves the distinction somewhat discretionary,

but clues about the quantities or types of regulations that

should prove dispositive would be helpful. Even the brief

treatment of this question in Patel provided necessary

insights. For example, Patel’s rejection of regulations

common to many Los Angeles industries as proof of close

regulation indicates that some level of industry specificity

is necessary to show pervasive regulation exists. Patel,

576 U.S. at 425. Still, several key questions remain. With

respect to the types of regulations that are dispositive,

should lower court judges be primarily looking for

crime-prevention, natural resource protection, labor law

regulations, or some other category for pervasiveness to

17

apply? How many industry-specific regulations amount

to pervasiveness? And does close regulation of one part

of an industry’s function permit warrantless surveillance

of the entire industry?

Another option, and one that avoids many of these

issues, is to elevate the public safety factor within

the close regulation definition. By looking at whether

an industry is engaged in “intrinsically dangerous”

business, the Court could preserve the prior case law and

simultaneously resolve the instant case. Patel, 576 U.S. at

424 (comparing the public safety concerns in Colonnade,

Biswell, Donovan, and Burger to Patel), 424 n.5. A test

like this, based on whether an industry poses a “clear

and significant risk to the public welfare,” benefits lower

courts and business owners alike by providing a simple

and intelligible principle. Id. at 424. If public safety is

dispositive, there is no question that there is little danger in

allowing lobstering to occur with normal law enforcement

techniques. This solution honors the legitimate interests

for American businesses to be able to predict their privacy

rights and have them standardized across circuits. The

economic effect of clarifying this legal landscape is an

additional benefit of this rule, as regulatory uncertainty

has long been understood as a hindrance to business

investment. Scott R. Baker, Nicholas Bloom & Steven J.

Davis, Measuring Economic Policy Uncertainty, 131 Q.J.

Econ. 1593 (2016).

A final potential path is to leave the definition of a

closely regulated industry relatively discretionary while

shifting the most active enforcement to the first prong of

the Burger test. Examining how substantial government

interests are would provide a key check on an overly

18

intrusive regulatory regime. This path retains the prior

precedents which all discuss the interest in warrantless

searches in industries such as alcohol, firearms, mines, and

junkyards. In the instant case, it is highly suspect whether

there is a substantial government interest in regulating

lobstering in such an overbearing manner. The lobstermen

have noted below that their lobster population “currently

is not in danger of being overfished.” Pet. App. at 92a.

Further, they allege that the industry’s internal focus on

sustainability is so strong that increasing surveillance

now “flies in the face of evidence that Maine lobster

fishermen have a history of regulatory compliance.” Pet.

App. at 86a. Anthropologists have agreed on this point,

referring to Maine lobstermen as “an industry with one

of the strongest conservation ethics in the world” which

“has solved its collective action dilemmas” related to

the potential for overfishing. James M. Acheson & Roy

Gardner, The Evolution of Conservation Rules and

Norms in the Maine Lobster Industry, 53 Ocean &

Coastal Mgmt. 524, 525 (2010). If lobster populations were

indeed in crisis, perhaps a sufficiently weighty interest

would exist to justify some surveillance. But in the absence

of an emergency situation, round-the-clock warrantless

GPS tracking very likely fails if the Court were to choose

this path.

Regardless of how the enforcement of this exception is

formalized, the situation faced by Petitioner and similarly

situated business owners is untenable. Dozens of industries

will always find themselves one ambitious regulation

from unceasing surveillance without intervention from

the Court. Twenty years ago, a unanimous Court in

Brigham City v. Stuart, 547 U.S. 398 (2006), affirmed

that “the ultimate touchstone of the Fourth Amendment

19

is ‘reasonableness.’” Id. at 403. This remains true today.

But the glaring unreasonableness of the MDMR rule

strongly indicates that the enforcement project begun in

Patel remains unfinished.

The Court can confine this exception to Fourth

Amendment protections in these or any other way it

chooses. However, regardless of its preferred mechanism,

it is time for a new addition to the privacy jurisprudence

governing closely regulated industries. Certiorari is

warranted.

CONCLUSION

The current state of this Court’s test for closely

regulated industries must be resolved to provide clarity

to lower courts and businesses alike. Landmark urges

this Court to grant the petition.

Respectfully submitted,

Richard P. Hutchison

Landmark Legal Foundation

2405 Grand Boulevard,

Suite 420

Kansas City, MO 64108

April 22, 2026

Matthew C. Forys

Counsel of Record

Michael J. O’Neill

Landmark Legal Foundation

19415 Deerfield Avenue,

Suite 312

Leesburg, VA 20176

(703) 544-6100

matt@landmarklegal.org