Thompson v. Wilson

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 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

lobstermen1 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

1Just 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, Regardless of Gender, (July 7, 2023) https://www.mlcalliance.org/post/a-lobsterman-is-a-lobsterman- regardless-of-gender, [https://perma.cc/8DHC-V49M].

- 3 - 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).

(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

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).

- 4 - 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 fish-shifting 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 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

- 5 - 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 assessment scientists;

3 Maine participates in the ASMFC through three representatives, one being the active MDMR Commissioner. Me. Stat. tit. 12, § 4652.

- 6 - (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

- 7 - compared to docked). See id. § 98(C).4 In November 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 Rule6 -- 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

4 The MDMR Rule does not list any specific punishments for failure to comply with its requirements. Before the district court, 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 - 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 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 closely-regulated industry per our

8Only Thompson's Fourth Amendment claim has been presented on appeal. Accordingly, we focus our attention there and say no more about the other claims.

- 9 - 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 long-term viability (an agreement that satisfies one

prong of the legal test we will be discussing at length and

applying).

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

Thompson seeks to repudiate this concession on appeal, a 9

matter to be discussed, and rejected, later on.

- 10 - 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, 215-16 (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 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-yet-reasonable regime can arise in administrative

searches of closely-regulated industries.10 See Rivera-Corraliza,

10This 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 closely-regulated industries, which we examine under a different, "more relaxed standard." Id. at 424.

- 11 - 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 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

- 12 - 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 argument fighting against the

current of his previous district court concession.

- 13 -  (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

11Thompson'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

- 14 -  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-or-waive 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

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 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).

- 15 - boundary between our raise-or-waive 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, 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

- 16 - 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 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 closely-regulated

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

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."

- 17 - 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 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

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

- 18 -  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 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

adequate substitute for a warrant." Patel, 576 U.S. at 426 (citation modified).

- 19 - 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 enforcement-related 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 463-64. And with that important (but

- 20 - largely unrelated) 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 closely-regulated 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.

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)).

- 21 -  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 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."

Rivera-Corraliza, 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

- 22 - 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.

(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.

- 23 -  (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 . . . ." 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 Rivera-Corraliza, 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

- 24 - 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 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

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 closely-regulated 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).

- 25 - 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." 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

- 26 - 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

- 27 - the government to prove its 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).

- 28 -  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

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 709-10;

16This 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."

- 29 - 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. 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 self-reporting

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

- 30 - 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).

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

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.

- 31 - 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. 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

- 32 - 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 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.

18Thompson 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.

- 33 -  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

federally-licensed 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.

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.

- 34 -  IV

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

side.

- 35 -