California fish, not raisins, are the subject of a recent decision from the Ninth Circuit Court of Appeals.  The case is Marilley v. Bonham and the opinion can be found here.

In Marilley, California’s vessel registration fees were challenged by non-resident commercial fishermen who argued, as a class, that charging nonresidents higher fees violated the U.S. Constitution.

The en banc court reversed the district court’s summary judgment in favor of plaintiffs and remanded for the district court to enter summary judgment for California in an action brought by a class of nonresident commercial fishers challenging California’s nonresident fee differential for four commercial fishing licenses, vessel registration and permits. The en banc court first held that California’s fee differentials for commercial fishing vessel registrations, fishing licenses, Dungeness crab permits, and herring gill net permits fell within the purview of the Privileges and Immunities Clause. The en banc court determined that whether the calculation was made at the general level of all nonresident commercial fishers, or at the specific level of nonresident commercial fishers for Dungeness crab and herring, the fee differentials charged by California were less than the amount by which California subsidized the management of the nonresidents’ portions of its commercial fishery. The en banc court therefore held that the fee differentials survived the Privileges and Immunities Clause challenge because the differentials were justified by a substantial reason that was closely related to the differential fees. The en banc court held that the fees survived an Equal Protection Clause challenge because California’s interest in receiving compensation for its commercial fishery management provided a “rational basis” for its fee differentials. Dissenting, Judge M. Smith, joined in full byHurwitz and Owens and by Reinhardt and Berzon as to Part III, stated the majority assumed away the major defect in its analysis: the fact that nonresident fishermen pay multiple California taxes too, yet nonetheless commence each fishing season thousands of dollars in the hole by virtue of California’s discriminatory differentials. In Judge M. Smith’s view, the fee differentials are illegal under the Privileges and Immunities Clause. Dissenting, Judge Reinhardt, joined by Judge Berzon, concurred in Part III of Judge M. Smith’s dissent and agreed that California failed to carry its burden of demonstrating that the differential fees it charges to nonresidents were closely drawn to the achievement of a substantial state objective.