State loses in commercial fishing lawsuit

U.S. 9th Circuit panel upholds lower court, saying California’s policy of charging out-of-state operators higher fees is unfair.

SAN FRANCISCO — California’s requirement that out-of-state commercial fishers pay higher fees than residents violates the Constitution, a federal appeals court decided Friday.

“Charging nonresidents two to three times the amount charged to residents plainly burdens nonresidents’ right to pursue a common calling, in this case commercial fishing,” the U.S. 9th Circuit Court of Appeals said.

The panel upheld, 2 to 1, a lower court decision in favor of out-of-state fishers who brought a class-action suit against California’s rate system.

At issue were four fees the state charges for licenses, boat registration and permits for fishing in California waters.

The court said the discrimination violated the Privileges and Immunities Clause, which bars states from showing bias toward residents of other states.

“All four licenses would set a resident back $1,100.78, but a nonresident $3,260.25,” wrote Judge Paul L. Friedman, a Washington, D.C., district jurist who has been temporarily assigned to the 9th Circuit.

The President Clinton appointee was joined by 9th Circuit Judge Paul J. Watford, a President Obama appointee.

The majority said California had failed to justify the differential with any evidence that resident fishers contribute more to the state for administering commercial fishing.

Judge Susan P. Graber, a Clinton appointee, dissented.

Graber said the case should go to trial to give California the opportunity to show that the fee structure of fishing licenses was warranted.