Ninth Circuit Skewers Calif. Fishing Fee Scheme

SAN FRANCISCO (CN) - A challenge to California's scheme of charging nonresidents differently for commercial fishing licenses went before the Ninth Circuit on Tuesday.

Lead plaintiff Kevin Marilley filed the case in 2013, seeking to represent a class of commercial herring fishermen who are not California residents but who wish to make their living there.

At the time of the lawsuit, nonresident fees for commercial fishing licenses and for fishing vessel registration permits were three times higher than the fees California residents paid.

California's Department of Fish and Wildlife currently lists those fees as equal in amount on its website.

That office's director, Charlton Bonham, appealed to the Ninth Circuit after a federal judge found for the fishermen.

Arguing for the state, Elaine Meckenstock said that the lower court's ruling conflicted with Supreme Court precedent.

When Meckenstock spoke about the court's duty to focus on the state's expenditure of its own funds, as opposed to the fee differential, Judge Susan Graber posed a hypothetical in which "there was a shortfall of a million dollars."

"Could you charge the nonresident fishers the full million to make up the deficit?" the judge asked.

Oakland, Calif.-based Meckenstock said she did not think that "one nonresident commercial fisherman would be expected to fill the entire gap."

Judge Paul Watford said that the government needed to show that, at the "individual fisherman level," that nonresidents and residents are paying roughly the same amount.

"If you don't have evidence to show that the burdens are roughly comparable, then you lose," he said.

Stuart Gross, a San Francisco attorney arguing for the fishermen, said that the state should not be able to use nonresident fishermen to cover its losses.

"The state can't say, we've got a shortfall, and we're going to make up the shortfall on the backs of nonresidents but not on residents," he said.

Graber asked Gross what evidence would suffice, in his opinion, to show that the state's differential fees could be justified.

Gross said that one example of such proof would be if the nonresident fisherman presented a "peculiar management or enforcement burden," such as if the size of their boats cost the state more money to license.

But the state never met its burden of proof, he said.

"The standard here was clear," Gross said. "The defendants had three to four years to come forward with the evidence, and they didn't. The state made the choice not to meet their burden."

He also said that the case has "no known disputed issues of material fact," and that if the case were remanded to the district court his clients would reinstate their motion for summary judgment immediately.

"To remand now just gives the government a second bite at the apple, which they're not entitled to," Gross said.

In rebuttal, Meckenstock argued that "most of the funds we are talking about, in terms of state investment, do come from residents."

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