In September 1983 the Ninth Circuit Court of Appeals in the Balelo v Baldridge decided the first court challenge against the government policy of placing federal observers on commercial fishing vessels to monitor their operations. The plaintiffs were Pacific tuna purse seiners. This the first observer program in the American fishing industry was enacted under the Marine Mammal Protection Act (MMPA).

The first observers spent many weeks on the high seas with the fishermen at a time when there was literally no other way to assure that the newly enacted law — meant to bring the mortality of marine mammals in the tuna fishery as close to zero as possible — was being followed by these operations. It was provided for in this portion of the MMPA that the captains be given notice well in advance of the required observer trips and that the funding be fully covered by Congress.

Balelo was a split decision by the federal appellate panel, two judges writing lengthy concurring decisions, and one a strong dissent. To this date this is the main federal court precedent supporting the legality of the federal commercial fishing observer programs in all the U.S. fisheries. Just last month the Supreme Court declined an opportunity to review the merits of a challenge brought by New England groundfish fishermen represented by the pro bono Washington D.C. based advocacy group Cause of Action, this based on the government opinion that the thirty-day window to challenge the provisions of the sector the fishermen had signed onto had been long passed.

Today most of  the observer policies are promulgated under the Magnuson-Stevens Act. They have evolved to where the observers appear at the dock with no forewarning. If the captain refuses to take the federal agent he must remain tied to the dock until he changes his mind and he will face a steep fine. The main challenge of the case in New England was against the policy that “industry funding”, the wording used in the regulations, could mean that the captain had to pay the entire cost of the observer’s day out of pocket. There this included not only the observer’s salary for the day (about $200) but also costs and profits for the private contractor which provides them. In that case it came to $710, which for them usually would eat up the entire net income for that trip.

The boats involved now are most often “day boats”. Here on Long Island for the first time in the history of it the observer program now covers state licensed fishermen who must fish within three miles of the coast. We have all been watched for decades by several agencies with marine bureaus by everything from vehicles with high definition binoculars to helicopters with the same and now drones with hi def cameras; this plus boats from federal, State and Town jurisdictions claiming the right to spot inspections without warrant or permission.

But now we have to take observers on our tiny vessels — this based on a forty-five-year-old split decision on operations that have nothing whatever to do with what we do except that it involves on the water harvesting marine animals for food. And soon we will have to pay for the trip. For the cost of a few observer trips you can buy my boat, my truck and all my nets. You can’t have my licenses — New York State is illegally keeping us from selling those.

As an addendum: In the spring session of 2015 the Supreme Court ruled that convicted sex offenders could not be required to have mandated government GPS monitoring after they have served their sentences. As a GPS device only reports geographical place and a live human federal agent does that and much more, the fed’s position is that fish, whales, porpoises and turtles deserve way more law enforcement protection from law abiding, hard working, licensed commercial fishermen than anyone has ever even considered affording our children from the convicted sexual predators in our midst. I live for the day that the fishcrats will be forced to argue this publicly in a court of law.

“Surely the lives of porpoises cannot be more sacred to us than the right of privacy and freedom from government intrusion protected by the fourth amendment.”
The last line of Judge Ferguson’s dissent in Balelo v Baldridge

It shouldn’t take someone with the knowledge and experience of a federal appeals court judge to see that is only a short jump from my little bay boat to the shore. It is much, much easier to hide contraband in a  over-the-road tractor trailer or illegal activity inside a building than it is on a little open boat well within sight of a densely populated suburb. If my being mandated to have a federal agent with me during my trip to and from my work site and everything in between  is legal– well — it can happen to anybody.