Ninth Circuit Affirms Order Striking Down Discriminatory California Commercial Fishing Laws

SAN FRANCISCO, September 18, 2015 – The United States Court of Appeals for the Ninth Circuit issued an Opinion today affirming a decision from 2013 by Judge Donna Ryu of the Northern District California that struck down four California statutes for unconstitutionally discriminating against nonresident commercial fishermen.

At issue were four statutes enacted by the California Legislature in the 1980s and 1990s: Cal. Fish & Game Code §§ 7852, 7881, 8280.6, and 8550.5. The statutes set the fees charged to nonresidents several times higher than those charged to residents for: commercial fishing licenses (§ 7852); commercial boat registrations (§ 7881); Dungeness Crab vessel permits (§ 8280.6); and herring gill net permits (§ 8550.5).

The table below shows the differences in fees charged in 2013, the last year the discriminatory fees were charged before the District Court’s order:

                                                                                      Resident                               Nonresident
               Commercial Fishing License                        $133.39                                $395.50
               Commercial Boat Registration                     $347.50                                $1,028.25
               Dungeness Crab Vessel Permit                   $280.00                               $551.75
               Herring Gill Net Permit                                 $368.25                               $1,368.75

The discriminatory fees hit nonresident herring fishermen hardest. Most herring fishermen have three herring permits and own their own boats. Thus, in the 2013 herring season, most nonresident fishermen paid a total of $5,390.75 in fees, while their resident competitors paid $1,545.78, a difference of almost $4,000.

The Ninth Circuit affirmed the District Court’s finding that the four statutes violated the Privileges and Immunities Clause of the United States Constitution. The Ninth Circuit agreed that the laws implicated the Clause’s guarantee of the right to earn a living in every State on terms of substantial equality with the residents of the state, and that the State of California had not met its burden to show that the discrimination was justified.

Specifically, in a clear articulation of the standard applicable to cases involving this type of discrimination, the Appeals Court held:

"[A] State may justify a differential fee by showing either that it is closely related to the costs of addressing a burden non-residents uniquely impose or that it approximates the amount in 'taxes which only residents pay' towards the relevant State expenditures from which non-residents also benefit."

The Ninth Circuit agreed that California had failed to meet their burden to justify the challenged discrimination in either of these ways.

When first contacted regarding the decision, class member, long-time commercial herring fisherman, president of the San Francisco Herring Association, and resident of Bellingham, Washington, Matt Ryan stated, “Hot dog!” Matt Ryan and other nonresident commercial herring fishermen have been trying to get California’s discriminatory fees corrected for over twenty years. “This has been a long time coming,” Mr. Ryan continued. “When these fees were first put in place, we told them that they were wrong, but nothing was done about them. It feels good to finally get this fixed.”

Lead attorney for the class of nonresident fishermen on whose behalf the case was brought in May of 2011, Stuart G. Gross or Gross Law, P.C., echoed Mr. Ryan’s sentiments, “nonresident fishermen have been waiting a long time for this result, and we are happy to have helped them achieve it.” Mr. Gross continued, “The import of this decision goes significantly beyond the four statutes directly affected by it. The decision affirms the fundamental right of all Americans to earn a living in any State of this nation free of unjustified discrimination in favor of that State’s residents. This case was fundamentally about fairness, and we’re gratified by the result.”

The lawsuit is titled, Marilley v. Bonham, its case number at the Ninth Circuit is 13-17358, and at the Northern District of California is No. 11-2418-DMR.

The Ninth Circuit's opinion is available here: Marilley v Bonham-Ninth Cir. Opinion.pdf

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