Dairy et al v. Bonham
Filing
96
ORDER by Judge Edward M. Chen Granting in Part and Denying in Part 67 Defendant's Motion for Summary Judgment. (emcsec, COURT STAFF) (Filed on 12/9/2013)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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RALPH AND LYNETTE DAIRY, et al.,
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Plaintiffs,
For the Northern District of California
United States District Court
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No. C-13-1518 EMC
v.
CHARLTON BONHAM, Director of the
California Department of Fish and Wildlife, in
his official capacity,
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
(Docket No. 67)
Defendant.
___________________________________/
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Plaintiffs are a six individuals and a limited liability company involved in commercial
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Dungeness crab fishing, who have sued to invalidate California Fish & Game Code § 8276.5
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(Dungeness Crab Trap Limit Program regulations), seeking declaratory and injunctive relief for
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various alleged federal constitutional violations. Currently pending before the Court is the
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Government’s Motion for Summary Judgment, or, alternatively, Summary Adjudication as to
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Plaintiffs’ (1) Fourth Claim (Privileges and Immunities); and (2) Eighth Claim (Magnuson-Stevens
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Act). Docket No. 67
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Having considered the parties’ briefs and accompanying submissions, as well as the
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argument of counsel, the Court hereby GRANTS in part and DENIES in part Defendant’s motion
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for summary judgment.
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I.
A.
FACTUAL & PROCEDURAL BACKGROUND
Federal Regulation of Dungeness Crab
In 1976, Congress enacted the Magnuson-Stevens Fishery Conservation Management Act
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(“Magnuson-Stevens Act”), 16 U.S.C. § 1801 et seq., “to conserve and manage the fishery resources
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found off the coasts of the United States.” 16 U.S.C. § 1801(b)(1). To effectuate these and other
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goals, the United States asserted “sovereign rights and exclusive fishery management authority over
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all fish, and all Continental Shelf fishery resources, within the exclusive economic zone.” Id. at
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§ 1811(a). Despite asserting this broad authority, the Magnuson-Stevens Act expressly preserves
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state authority over fishery resources within its boundaries and outside its boundaries under certain
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For the Northern District of California
United States District Court
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circumstances:
(a) In general
(1) Except as provided in subsection (b) of this section,
nothing in this chapter shall be construed as extending
or diminishing the jurisdiction or authority of any State
within its boundaries. . .
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(3) A State may regulate a fishing vessel outside the
boundaries of the State in the following circumstances:
(A) The fishing vessel is registered
under the law of that State, and (I) there
is no fishery management plan or other
applicable Federal fishing regulations
for the fishery in which the vessel is
operating; or (ii) the State’s laws and
regulations are consistent with the
fishery management plan and applicable
Federal fishing regulations for the
fishery in which the vessel is operating.
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22 16 U.S.C. 1856 (Oct. 11, 1996) (emphasis added). Thus, under the Magnuson-Stevens Act,
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California could regulate (1) within its boundaries, and (2) outside its boundaries, if (a) the vessel is
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a California-registered fishing vessel, and (b) no fishery management plan is in place. It is
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undisputed that there is still no fishery management plan in place.
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However, the Magnuson-Stevens Act did not permit California and other states to regulate
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out-of-state registered fishing vessels in adjacent federal waters. See H.R. Rep. No. 105-674, 105 th
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Cong., 2d Sess. (1998). Such waters are referred to as the EEZ, or exclusive economic zone. The
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“EEZ,” or the “exclusive economic zone” is effectively federal oceanic waters over which the
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United States proclaimed exclusive jurisdiction in Presidential Proclamation 5030 of March 10,
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1983. See Calif. Pub. Resources Code § 71520. It begins where California waters end – three
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nautical miles from shore–until 200 nautical miles off shore. See
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http://resources.ca.gov/ocean/html/chapt_3.html (last visited December 9, 2013).
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In 1996, Congress enacted the Dungeness Crab Act, codified at section 112(d) of P.L. 104-
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297 (16 U.S.C. 1658 note) (Oct. 11, 1996). Under the Dungeness Crab Act, California, Oregon, and
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Washington were authorized to enforce their regulations against any vessel operating within the
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EEZ, subject to certain limitations. The Dungeness Crab Act provides in relevant part:
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For the Northern District of California
United States District Court
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(a) In General. Subject to the provisions of this section and
notwithstanding section 306(a) of the Magnuson–Stevens Fishery
Conservation and Management Act (16 U.S.C. § 1856(a)), each of the
States of Washington, Oregon, and California may adopt and enforce
State laws and regulations governing fishing and processing in the
exclusive economic zone adjacent to that State in any Dungeness crab
(Cancer magister) fishery for which there is no fishery management
plan in effect under that Act.
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(b) Requirements for State Management. Any law or regulation
adopted by a State under this section for a Dungeness crab fishery –
(1) except as provided in paragraph (2), shall apply
equally to vessels engaged in the fishery in the
exclusive economic zone and vessels engaged in the
fishery in the waters of the State, and without regard to
the State that issued the permit under which a vessel
is operating;
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(c) Limitation on Enforcement of State Limited Access Systems. Any
law of the State of Washington, Oregon, or California that establishes
or implements a limited access system for a Dungeness crab fishery
may not be enforced against a vessel that is otherwise legally fishing
in the exclusive economic zone adjacent to that State and that is not
registered under the laws of that State, except a law regulating
landings.
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24 P.L. 104–297 (16 U.S.C. 1856 note) (Oct. 11, 1996) (emphasis added). The Dungeness Crab Act
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has been reauthorized and amended in 1998, see P.L. 105-384, § 203 (16 U.S.C. § 1856 note) (Nov.
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13, 1998), and again in 2007, see P.L. 109-479, § 302(e) (16 U.S.C. § 1856 note) (Jan. 12, 2007).
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Since January 1, 2007, pursuant to Fish & Game Code section 8280.9 and the Tri-State E-200
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Agreement of 2007, California-permitted Dungeness crab vessels are the only vessels authorized to
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fish for Dungeness crab in the EEZ adjacent to California. See Marble v. Dept. of Fish and Wildlife,
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234 P.3d 1062, 1072 (Or. App. 2010).
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B.
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California’s Dungeness Crab Trap Limit Program
In 2011, the California legislature enacted the Dungeness Crab Trap Limit Program
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regulations, codified at Calif. Fish & Game Code § 8276.5 (hereinafter “Dungeness Crab Trap Limit
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Program regulations”). Id. at ¶ 1. In relevant part, the statute provides that:
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(a) In consultation with the Dungeness crab task force . . . the director
shall adopt a program, by March 31, 2013, for Dungeness crab trap
limits for all California permits.
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(1) The program shall contain seven tiers of Dungeness crab trap
limits based on California landings receipts under California permits
between November 15, 2003, and July 15, 2008.1
11 Calif. Fish & Game Code § 8276.5(a)(1). Subdivision (a)(1) of the California’s Dungeness Crab
For the Northern District of California
United States District Court
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Trap Limit Program regulations provides that permitholders are to be assigned to a tiering scheme as
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follows:
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Tier
Total
Allocable
Permits
Maximum Trap
Allocation
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1
55
500
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2
55
450
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3
55
400
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4
55
350
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55
300
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1702
250
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1243
175
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This time period is referred throughout as the “Qualifying Period.”
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See e.g., Docket No. 80 (Ex. B to Jackson Decl.) (“Notice of California Dungeness Crab
Vessel Permit Trap Tier Allocation”).
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See id.
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Assignment to the various tiers depends entirely on the amount of crab landed in California, as
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evidenced by landing receipts, within the Qualifying Period. The regulations therefore do not
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consider a vessel’s landings history outside of California – e.g., Oregon or Washington.
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C.
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Current Action
Plaintiffs are six individuals and one limited liability company who make a living in the tri-
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state Dungeness crab fishery – Oregon, California, and Washington. See Docket No. 34 (FAC ¶¶ 1,
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3). Plaintiffs are not California residents. See Docket No. 34 (FAC ¶ 3). Rather, Plaintiffs allege
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they are nonresident Dungeness crab permitholders who fish Dungeness crab in California waters, or
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federal waters adjacent to California. Id. Plaintiffs allege they have lawfully landed crab outside of
California during the Qualifying Period. Id. at ¶¶ 9-13. Because the statute does not count crab
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For the Northern District of California
United States District Court
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landed outside of California, Plaintiffs allege they have been assigned to lower tiers and as a
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consequence have been allocated lower numbers of Dungeness crab trap tags. Id. at ¶ 3. Plaintiffs
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do not dispute they are still permitted to fish for Dungeness crab in California.
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On April 5, 2013, Plaintiffs filed the current lawsuit against the director of the California
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Department of Fish and Wildlife (the “Government”), challenging the Dungeness Crab Trap Limit
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Program regulations on various constitutional grounds. See Docket No. 1. The Government moved
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to dismiss certain claims of the FAC: first (Commerce Clause), second (Equal Protection Clause),
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third (Right to Free Movement), fourth (Privileges and Immunities Clause, as to plaintiff F/V
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Brooke Michelle only), fifth (Procedural Due Process), sixth (Bill of Attainder, all plaintiffs),
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seventh (Bill of Attainder, as to plaintiffs Dairy, Speer, and Moore only), and ninth claims
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(Declaratory Relief). See Docket No. 21. On July 23, 2013, this Court issued its order granting the
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motion as to all claims except Plaintiffs’ ninth claim. See Docket No. 46. Only two substantive
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claims for relief remained: (1) Fourth Claim (Privileges and Immunities Clause); and (2) Eighth
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Claim (Magnuson-Stevens Act).
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The Government now moves for summary judgment (or alternatively, summary adjudication)
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as to Plaintiffs’ two remaining substantive claims. See Docket No. 67. Specifically, the
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Government requests the Court grant summary judgment as to Plaintiffs’ (1) Fourth Claim
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(Privileges and Immunities), on grounds they fail as a matter of law—i.e., the Dungeness Crab Trap
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Limit Program regulations (a) do not facially distinguish residents from nonresidents, (b) do not
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infringe upon a “privilege” protected under the Clause, and (c) were not enacted with a protectionist
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purpose; and (2) Eighth Claim (Magnuson-Stevens Act), on grounds Plaintiffs cannot (a) meet their
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burden of establishing preemption, or (b) overcome the presumption against preemption.
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II.
A.
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DISCUSSION
Legal Standard
Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be rendered “if
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the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
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affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). An issue of fact is genuine
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For the Northern District of California
United States District Court
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only if there is sufficient evidence for a reasonable jury to find for the nonmoving party. See
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The mere existence of a scintilla of
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evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for
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the [nonmoving party].” Id. at 252. At the summary judgment stage, evidence must be viewed in
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the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in the
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nonmovant’s favor. See id. at 255.
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In the current case, the Government has moved for summary judgment on the two remaining
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claims: (1) Privileges and Immunities; and (2) Magnuson-Stevens Act. Because Plaintiffs have the
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ultimate burden of proof on each of these claims, the Government may prevail on its motion for
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summary judgment by pointing to Plaintiffs’ failure “to make a showing sufficient to establish the
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existence of an element essential to [its] case.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
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B.
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Privileges and Immunities Clause
“Under the Privileges and Immunities Clause, ‘[t]he Citizens of each State [are] entitled to
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all Privileges and Immunities of Citizens in the several States.’” McBurney v. Young, 133 S. Ct.
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1709, 1714 (2013) (citing U.S. Const., Art. IV, § 2, cl. 1). The United States Supreme Court has
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articulated the purpose of the Privileges and Immunities Clause is “‘[to] constitute the citizens of the
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United States [as] one people,’ by ‘plac[ing] the citizens of each State upon the same footing with
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citizens of other States, so far as the advantages resulting from citizenship in those States are
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concerned.’” Id. (quoting Lunding v. New York Tax Appeals Tribunal, 522 U.S. 287, 296 (1998)).
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“While the Clause forbids a State from intentionally giving its own citizens a competitive advantage
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in business or employment, the Clause does not require that a State tailor its every action to avoid
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any incidental effect on out-of-state tradesmen.” McBurney, 133 S. Ct. at 1716 (emphasis added).
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Ordinarily, to determine whether a statute’s residency classification violates the Privileges
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and Immunities Clause, the Ninth Circuit employs a two-step inquiry:
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“First, we decide whether the activity in question is ‘sufficiently basic
to the livelihood of the nation ... as to fall within the purview of the
Privileges and Immunities Clause.’”
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“Second, if the challenged restriction deprives nonresidents of a
protected privilege, we will invalidate it only if we conclude that the
restriction is not closely related to the advancement of a substantial
state interest.”
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For the Northern District of California
United States District Court
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Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 934 (9th Cir. 2008) (citing
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Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988)).
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Additional analysis is required where the alleged discrimination is not facial. Although it is
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undisputed that the Dungeness Crab Trap Limit Program regulations do not facially discriminate
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between residents and nonresidents (see Docket No. 46 (Order, at pg. 5)), the “absence of an express
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statement in. . .laws and regulations identifying out-of-state citizenship as a basis for disparate
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treatment is not a sufficient basis for rejecting. . .[a privileges-and-immunities] claim.” Hillside
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Dairy Inc. v. Lyons, 539 U.S. 59, 67 (2003). The Supreme Court has implied, without deciding,4
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that the Privileges and Immunities Clause could apply to
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“classifications that are [1] but proxies for differential treatment
against out-of-state residents, or [2] as prohibiting any classification
with the practical effect of discriminating against such residents . . . ”
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Hillside Dairy, 539 U.S. at 67 (emphasis added). Additionally, to violate the Privileges and
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Immunities Clause a statute must have been enacted for a protectionist purpose. See McBurney, 133
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See Chalker v. Birmingham & N. W. Ry. Co., 249 U.S. 522 (1919) (finding that despite not
drawing a distinction on its face, statute imposing tax on those with out-of-state offices
discriminated in practical effect: “Practically, therefore, the statute under consideration would
produce discrimination against citizens of other states by imposing higher charges against them than
citizens of Tennessee are required to pay.”).
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S. Ct. at 1715 (noting that “the Court has struck laws down as violating the privilege of pursuing a
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common calling only when those laws were enacted for the protectionist purpose of burdening out-
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of-state citizens” and upholding statute because it had a nonprotectionist aim) (emphasis added).
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Accordingly, under the particular facts of this case, the Court must determine whether the statute at
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issue here discriminates on the basis of residency in purpose and effect.
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Accordingly, because the Dungeness Crab Trap Limit Program regulations do not expressly
(1) implicate a “sufficiently basic” or fundamental privilege protected by the Clause to fall within its
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purview; and (2) implicitly draw a discriminatory classification – i.e., (a) proxy for differential
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treatment, or (b) discrimination in practical effect. The discriminatory effect must be more than
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For the Northern District of California
discriminate against nonresidents, Plaintiffs have the burden of showing that the regulations
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United States District Court
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incidental. McBurney, 133 S. Ct. at 1716. Further, Plaintiffs must show that the regulations evince
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a protectionist purpose.
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1.
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First, the Court addresses whether that the Dungeness Crab Trap Limit Program regulations
Fundamental Privilege
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fall within the purview of the Privileges and Immunities Clause. “A nonresident’s right to ‘ply [a]
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trade, practice [an] occupation, or pursue a common calling within the State’ is a fundamental right
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protected by the privileges and immunities clause.” Int’l Org. of Masters, Mates & Pilots v.
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Andrews, 831 F.2d 843, 845-46 (9th Cir. 1987) (quoting Hicklin v. Orbeck, 437 U.S. 518, 524
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(1978)). The parties dispute whether the activity in question here – commercial Dungeness crab
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fishing – falls within the purview of the Privileges and Immunities Clause. Plaintiffs contend that
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the Dungeness Crab Trap Limit Program regulations implicate the fundamental right or privilege to
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pursue a common calling.5 The Government responds that the regulations do not fall within the
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Plaintiffs also allege that the Dungeness Crab Trap Limit Program regulation’s Californialandings-only rule violates the Privileges and Immunities Clause by impinging upon “the economic
value of their California-issued permits.” See Docket No. 34 (FAC, ¶ 60). The Government
contends that the “economic value” of Plaintiffs’ permits is not likely within the purview of the
Clause. See Docket No. 67 (Mot., at pg. 11) (citing McBurney, 133 S. Ct. at 1715). This is not
accurate. The right to dispose of property, like a permit, is a fundamental privilege of citizenship
like the right to pursue a common calling. McBurney, 133 S. Ct. at 1716 (“Like the right to pursue a
common calling, the right to ‘take, hold and dispose of property, either real or personal,’ has long
been seen as one of the privileges of citizenship.”). But this privilege is not implicated in this regard
here because the Dungeness Crab Trap Limit Program regulations do not prohibit Plaintiffs from
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purview of the Privileges and Immunities Clause because Plaintiffs cannot show they are “prevented
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or discouraged” by the State from pursuing their livelihood.
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A statute need not effectuate a complete bar in order to implicate the Privileges and
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Immunities Clause. As the Supreme Court stated in Supreme Court of Virginia v. Friedman, 487
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U.S. 59, 66-67 (1988), “Nothing in our precedents, moreover, supports the contention that the
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Privileges and Immunities Clause does not reach a State’s discrimination against nonresidents when
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such discrimination does not result in their total exclusion from the State. . . The issue instead is
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whether the State has burdened the right to practice law.” See McBurney, 133 S. Ct. at 1717
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(finding requirement that nonresidents conduct internet search to obtain property records “did not
impose any significant burden on noncitizens’ ability to own or transfer property in Virginia.”)
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For the Northern District of California
United States District Court
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(emphasis added). Cf. Molasky-Arman, 522 F.3d at 934 (finding statute “deprives licensed
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nonresident agents and brokers of this privilege by precluding them from finalizing insurance
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contracts without the countersignature of a resident agent, thereby satisfying the first step of our
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inquiry.”) (emphasis added). Indeed, the Ninth Circuit in Andrews, cited approvingly by the
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Government, recognized that a statute implicates the Clause where it burdens the pursuit of a
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common calling by rendering it unprofitable. Andrews, 831 F.2d at 846 (citing Toomer v. Witsell,
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334 U.S. 385 (1948)).
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This is precisely what Plaintiffs contend here. Plaintiffs’ sworn testimony states that they
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were accustomed to fishing Dungeness crab using in excess of 500 traps and are now limited to
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fishing with substantially fewer traps. See Docket No. 34 (FAC, ¶ 3) (“Historically, each of the
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Plaintiffs’ vessels have fished at least 500 crab traps.”); Docket Nos. 75 (Dairy Decl., ¶ 21) (noting
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that out-of-state landings of crab during the Qualifying Period exceeded 500,000 pounds, yet
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received an allocation of only 250 traps); 76 (Currie Decl., ¶ 76) (noting that out-of-state landings of
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crab during the Qualifying Period exceeded 1,000,000 pounds, yet received an allocation of only
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selling their permits. See id. at 1716 (finding Virginia FOIA statute did fun afoul of the Privileges
and Immunities Clause by abridging the fundamental right to “take, hold and dispose of property,
either real or personal” because the statute did not prohibit appellants from obtaining documents that
are necessary to transfer property – e.g., title documents and mortgage records). Plaintiffs cite no
authority to show that a reduction in property value is sufficient to bring a statute within the
Clause’s purview.
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450 traps); 77 (Moore Decl., ¶ 13) (noting that out-of-state landings of crab during the Qualifying
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Period exceeded 640,000 pounds, yet received an allocation of only 175 traps); 78 (Speir Decl., ¶ 16,
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Ex. A) (noting that out-of-state landings of crab during the Qualifying Period exceeded 185,924
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pounds, yet received an allocation of only 300 traps). Plaintiffs contend this has substantially
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burdened their ability to earn a livelihood in their crab fishing industry. They contend the regulators
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have made crab fishing unprofitable. See Docket No. 72 (Opp’n, at pg. 15); FAC, ¶ 20). Cf.
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Andrews, 831 F.2d at 846 (noting statute did not “make employment with AMHS unprofitable for
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nonresidents”).
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Discriminatory Effect
Second, the Court addresses whether the Dungeness Crab Trap Limit Program regulations
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For the Northern District of California
United States District Court
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2.
discriminate in effect against nonresident crab fishermen. Although the regulations do not involve
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an outright ban or exclusion of nonresidents, they do have a concrete limiting effect. Unlike the
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licensing fee differential at issue in Marilley v. Bonham, No. C-11-02418 DMR, 2013 WL 5745342,
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*12 (N.D. Cal. Oct. 16, 2013) (granting summary judgment on plaintiffs’ privileges-and-immunities
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claim involving license fee disparities charged to resident vis-à-vis nonresident Dungeness crab
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fishermen) which imposes a financial disincentive, the regulations here impose a numerical limit on
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crab traps based on historical data that is unchangeable.
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While qualitatively more harsh than a licensing fee disparity, the Court must examine the
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magnitude of the disparity as between residents and nonresidents in assessing the burden on
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nonresidents. The parties dispute the degree of disparate impact between residents and nonresidents.
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The Government contends that nonresidents are in fact over-represented in the highest tier, thus
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demonstrating there is no adverse discriminatory impact on nonresidents. Specifically, publicly
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available statistics show “nonresidents are “over-represented” in the top tier – comprising 14.5% of
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tier one permitholders but only 12.8%, on average, of those holding permits during the qualifying
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period.” See Docket No. 67 (Mot., at pg. 10). The Government relies heavily on this fact, and cites
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no other. Noticeably absent, however, is data from other tiers – more specifically, the total number
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of crab traps allocated to nonresidents, as a class, vis-à-vis residents. It is possible, for instance, that
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although nonresidents are slightly overrepresented in tier one, they are underrepresented in the other
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tiers and as a whole, particularly compared to the historic proportion of their catch in California
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waters in prior years. The latter data may be difficult to obtain. Prior to the current regulations,
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California placed no limit on the number of crab traps that a vessel could deploy. Thus, counsel for
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Plaintiffs posited that the best proxy would be to determine the amount of crab caught by residents
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and nonresidents in pounds, as evidenced by landing receipts – referred to as “poundage” – before
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and after the new regulations have been implemented. However, the Government has produced no
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such data for the record.
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Less precise data in the record suggests, however, that the new regulations have effected
some fall-off for nonresidents. The Government’s data show that nonresidents, as a class, obtained
on average roughly 13.12% of all permits from 2003-2012, obtaining about 14% of all permits in
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For the Northern District of California
United States District Court
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2012. The available data for 2013, the first year of implementation of the current regulations, show
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that this percentage fell to 12.60%. See Docket No. 68-2 (Ex. 1 and 2 to Meckenstock Decl.).6
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While neither party has analyzed whether this change is statistically significant, the record must be
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viewed in Plaintiffs’ favor in the context of this motion for summary judgment. At this juncture, the
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Government has not negated the evidence of some adverse impact on nonresidents.
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3.
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As noted above, the Court also looks at whether there is a distinct protectionist purpose
Protectionist Purpose
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intended to disadvantage nonresident fishermen. See McBurney, 133 S. Ct. at 1715 (noting that “the
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Court has struck laws down as violating the privilege of pursuing a common calling only when those
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laws were enacted for the protectionist purpose of burdening out-of-state citizens.”).
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Often, a discriminatory purpose is apparent where the challenged law contains a facial
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classification. See e.g., Supreme Court of New Hampshire v. Piper, 470 U.S. 274 (1985) (residency
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requirement to join the bar); Hicklin v. Orbeck, 437 U.S. 518 (1978) (hiring preferences for
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residents). See also Toomer v. Witsell, 334 U.S. 385 (1948) (license fee differential in shrimping
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6
Plaintiffs did not oppose Government’s request for judicial notice. See Docket No. 70
(Dft.’s RJN). The Court accordingly takes judicial notice of the data compiled by the California
Department of Fish & Wildlife, attached to motion for summary judgment, as matters of public
record that are not subject to reasonable dispute. See Fed. R. Evid. 201(b)(2); City of Sausalito v.
O’Neill, 386 F.3d 1186, 1223 (9th Cir. 2004) (noting that a court “may take judicial notice of a
record of a state agency not subject to reasonable dispute”).
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industry). In the case at bar, there is no such facial classification. Accordingly, the question is
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whether a protectionist purpose may be inferred where the regulation is neutral on its face. While
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there is little, if any, case law in the privileges-and-immunities context addressing this question, in
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other arenas, an analytical framework has been developed to ascertain a discriminatory purpose of
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facially neutral laws. The courts have looked to the magnitude of the disparate impact, as well as
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other evidence, such as a statute’s historical background or its legislative history. See Village of
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Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266-67 (1977) (“The
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legislative or administrative history may be highly relevant, especially where there are contemporary
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statements by members of the decisionmaking body, minutes of its meetings, or reports.”). See also
Lunding v. New York Tax Appeals Trib., 522 U.S. 287, 292 (1998) (notwithstanding a dearth of
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For the Northern District of California
United States District Court
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legislative history, considering ostensible rationale behind challenged tax).
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Here, although the record is not developed, the evidence and inferences drawn in Plaintiffs’
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favor, suggests some discriminatory impact thought perhaps slight. Looking to other indicia of
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protectionist intent, the history of California’s regulation of Dungeness crab, viewed in Plaintiffs’
15
favor on this motion, contains some indicia of protectionism. For example, the legislative history
16
examined in Marilley indicates that the California legislature was motivated in part by the need to
17
control competition from out-of-state fishermen when it enacted and later increased licensing fee
18
differentials for Dungeness crab permits. Marilley, 2013 WL 5745342, at *4-5. Though this
19
legislative history is not directly on point as to the trap limit program at issue here, it nonetheless
20
provides a historical context in which the current regulations were promulgated. See e.g., Village of
21
Arlington Heights, 429 U.S. at 267 (“The historical background of the decision is one evidentiary
22
source, particularly if it reveals a series of official actions taken for invidious purposes.”).
23
The legislative history7 of the Crab Trap Limit Program contains the following statement:
24
•
“Provide the platform for ongoing work with Crab Fishery
stakeholders to craft a Bill that will help conserve the resource,
25
26
27
28
7
The Government continues to press their argument that “is rarely, if ever, relevant to a
Privileges and Immunities Clause claim.” See Docket No. 67 (Mot., at pg. 15) (“Importantly, courts
rarely, if ever, look to purported legislative history in Privileges and Immunities Clause cases.”)
(citing McBurney). The Court rejects this argument for the same reasons articulated by the court in
Marilley. 2013 WL 5745342, at *18, n. 17.
12
1
meet the regulatory requirements of the Department of Fish &
Game, keep unneeded gear out of the water, and put a halt to
the annual cross border race for crabs that threatens the
livelihoods of our fishermen.” See Docket No. 82-1 (Ex. F to
Tienson Decl.) (9/2/2011 Senate Bill Analysis re: SB 369, at
pg. 7).
2
3
4
•
5
6
Desire to “protect California’s crab fishery from unfair
competition from large, out-of-state boats that are limited in
their own states.” See Docket No. 82-1 (Ex. D to Tienson
Decl.) (8/15/2011 Senate Bill Analysis re: SB 369, at pg. 4).
7
The Government responds that this is not the primary purpose of the statute. The problem with the
8
Government’s response at this juncture is twofold. First, the parties have not briefed the appropriate
9
legal standard: e.g. must the protectionist purpose of legislation be the primary purpose, a
substantial factor, a motivating factor, etc.? Second, whatever the precise legal test, the actual intent
11
For the Northern District of California
United States District Court
10
of the legislation at issue remains a disputed factual question, at least at this juncture. the court
12
notes that although legislative purpose is sometimes a question of law when it comes to e.g.
13
construing a statute, discerning whether the legislative body was motivated by an illicit purpose is a
14
question fact. See e.g., Village of Arlington Heights, 429 U.S. at 268 (finding “legislative or
15
administrative history may be highly relevant” to discern “proof of racially discriminatory intent or
16
purpose”).
17
In the final analysis, the Court finds that based on the current record, a triable issue exists as
18
to whether the Dungeness Crab Trap Limit Program regulations burden Plaintiffs’ right to pursue a
19
common calling – commercial fishing of Dungeness crab. Additionally, a triable issue exists as to
20
whether the regulations discriminate in practical effect sufficient to implicate the Privileges and
21
Immunities Clause and as to whether the regulations were promulgated with a protectionist purpose.
22
The Government’s motion for summary judgment on Plaintiffs’ fourth claim – Privileges and
23
Immunities claim – is accordingly denied.
24
C.
Eighth Claim: Magnuson-Stevens Act
25
In their eighth claim, Plaintiffs seek a declaration that the Dungeness Crab Trap Limit
26
Program regulations conflict with and are preempted by federal law, as embodied by the Magnuson-
27
Stevens Act and the Dungeness Crab Act. See Docket No. 34 (FAC, ¶¶ 90-91). Plaintiffs assert the
28
conflict arises because California regulates out-of-state registered vessels in the EEZ and fails to
13
1
consider non-California landings in the following circumstances (1) Dungeness crab was caught in
2
either California, Oregon, or Washington’s EEZ and landed at “non-California ports”; (2)
3
Dungeness crab was caught in either California, Oregon, or Washington’s before the Tri-State E-200
4
Agreement was effective on January 1, 2007 (i.e., 2003-2006). The Government responds that the
5
regulations are consistent with both federal statutes and thus no preemption lies. See Docket No. 67
6
(Mot., at pg. 22-23).
7
The Supremacy Clause of the Constitution, Art. VI, cl. 2, invalidates state laws that
8
“interfere with, or are contrary to,” federal law. Nat’l Audubon Socy., Inc. v. Davis, 307 F.3d 835,
9
851 (9th Cir. 2002) opinion amended on denial of reh’g by 312 F.3d 416 (9th Cir. 2002). Federal
preemption is generally disfavored. Dupnik v. U.S., 848 F.2d 1476, 1480 (9th Cir. 1988) (“[A]
11
For the Northern District of California
United States District Court
10
finding of federal preemption is disfavored: Preemption of state law by federal statute or regulation
12
is not favored in the absence of persuasive reasons-either that the nature of the related subject matter
13
permits no other conclusion, or that the Congress has unmistakably so ordained.”) (internal citations
14
and quotations omitted)).
15
Additionally, there is a presumption against preemption of state laws where, as here, those
16
laws were enacted pursuant to the State’s historic police powers. See P. Merchant Ship. Ass’n v.
17
Goldstene, 639 F.3d 1154, 1167 (9th Cir. 2011) cert. denied, 133 S. Ct. 22 (U.S. 2012), noting that
18
“[e]nvironmental regulation traditionally has been a matter of state authority” (citing Exxon Mobil
19
Corp. v. U.S. E.P.A., 217 F.3d 1246, 1255 (9th Cir. 2000)). See also Kleppe v. New Mexico, 426
20
U.S. 529, 545 (1976) (“Unquestionably the States have broad trustee and police powers over wild
21
animals within their jurisdictions.”); Viva! Int’l Voice For Animals v. Adidas Promotional Retail
22
Operations, Inc., 41 Cal.4th 929, 937 (2007) (noting “wildlife management” is “historically within
23
the traditional police powers of, the states”).
24
“Federal preemption occurs when: (1) Congress enacts a statute that explicitly pre-empts
25
state law; (2) state law actually conflicts with federal law; or (3) federal law occupies a legislative
26
field to such an extent that it is reasonable to conclude that Congress left no room for state
27
regulation in that field.” Chae v. SLM Corp., 593 F.3d 936, 941 (9th Cir. 2010) (citations omitted).
28
The party claiming federal preemption has the burden of proof. Jimeno v. Mobil Oil Corp., 66 F.3d
14
1
1514, 1526 (9th Cir. 1995) (noting that burden of federal preemption is on party asserting the
2
defense). The current action implicates the second category of preemption – conflict preemption.
3
Plaintiffs contend that the Dungeness Crab Trap Limit regulations are preempted by portions
4
of the (1) Magnuson-Stevens Act, codified at 16 U.S.C. § 1856(a)(3) (Oct. 11, 1996); and (2)
5
Dungeness Crab Act, codified at P.L. 109-479, § 302(e) (16 U.S.C. § 1856 note) (Jan. 12, 2007).
6
The seminal issue here is whether California’s Dungeness Crab Trap Limit Program regulations
7
conflict certain provisions of the Dungeness Crab Act, which is contained within the Magnuson-
8
Stevens Act. As noted above, the Dungeness Crab Act provides in relevant part:
9
11
For the Northern District of California
United States District Court
10
12
(a) In General. Subject to the provisions of this section and
notwithstanding section 306(a) of the Magnuson–Stevens Fishery
Conservation and Management Act (16 U.S.C. § 1856(a)), each of the
States of Washington, Oregon, and California may adopt and enforce
State laws and regulations governing fishing and processing in the
exclusive economic zone adjacent to that State in any Dungeness crab
(Cancer magister) fishery for which there is no fishery management
plan in effect under that Act.
13
14
15
16
17
(b) Requirements for State Management. Any law or regulation
adopted by a State under this section for a Dungeness crab fishery –
(1) except as provided in paragraph (2), shall apply
equally to vessels engaged in the fishery in the
exclusive economic zone and vessels engaged in the
fishery in the waters of the State, and without regard to
the State that issued the permit under which a vessel
is operating;
18
19
20
21
(c) Limitation on Enforcement of State Limited Access Systems. Any
law of the State of Washington, Oregon, or California that establishes
or implements a limited access system for a Dungeness crab fishery
may not be enforced against a vessel that is otherwise legally fishing
in the exclusive economic zone adjacent to that State and that is not
registered under the laws of that State, except a law regulating
landings.
22
23
P.L. 104–297 (16 U.S.C. 1856 note) (Oct. 11, 1996) (emphasis added). Under the Dungeness Crab
24
Act, California is permitted to regulate any vessels operating in its adjoining EEZ, subject to certain
25
restrictions: (1) California’s laws and regulations must apply equally both within and without its
26
borders; (2) California must regulate “without regard to the State that issued the permit”; and (3)
27
laws establishing or implementing a limited access system may not be enforced against an out-of-
28
state registered vessel otherwise legally fishing in the EEZ.
15
1
Plaintiffs’ preemption argument boils down to two provisions of the Dungeness Crab Act,
2
subdivisions (b)(1) and (c). First, Plaintiffs contend that by considering only California landings,
3
the regulations violate and conflict with the Dungeness Crab Act’s requirement under (b)(1) that
4
California act “without regard to the State that issued the permit under which a given vessel is
5
operating.” See Docket No. 72 (Opp’n, at pg. 24) (“Section 8276.5 fails to treat equally all vessels
6
within State waters and in the EEZ ‘without regard to the State that issued the permit under which
7
the vessel is operating’ because it clearly penalizes (and therefore, does not treat equally) the
8
Plaintiffs because it was only their Oregon and Washington permits which allowed them to land the
9
crab they caught during the Qualifying Period outside of the State of California.”). Second,
Plaintiffs contend that California is “enforc[ing]” its regulations against a vessel that is “otherwise
11
For the Northern District of California
United States District Court
10
legally fishing” in California EEZ waters and not registered under California laws in violation of
12
subdivision (c).
13
Both arguments fail as a matter of law. Plaintiffs’ subdivision (b)(1) argument (“without
14
regard to the State that issued the permit”) is foreclosed by Marble, which this Court cited
15
approvingly in its order on the Government’s motion to dismiss (Docket No. 46). Marble held,
16
subdivision (b) of the Dungeness Crab Act only applies to vessels currently operating within its
17
adjacent EEZ:
18
By its terms, however, the Dungeness Crab Act only prohibits a state
from discriminating against a vessel that presently “is operating” in its
adjacent EEZ under the authority of an out-of-state permit. Thus, the
statute does not apply to state laws that establish the crab-pot limits for
a state’s own permittees. Rather, it merely prevents the states from
assigning discriminatory crab-pot allocations to out-of-state vessels
permitted to operate in their adjacent EEZ waters.
19
20
21
22
234 P.3d at 1072 (emphasis in original). Pursuant to the Tri-State E-200 Agreement of 2007
23
(effective Jan. 1, 2007) and Cal. Fish & Game Code § 8280.9, the only vessels operating within
24
California EEZ waters are California permittees. As § 8276.5 applies only to California-permitted
25
vessels, it does not impose crab trap tag limitations on Oregon or Washington permitted vessels. It
26
therefore applies “without regard to the State that issued the permit under which a vessel is
27
operating.”
28
16
1
Plaintiffs’ argument under subdivision (c) similarly fails. Subdivision (c) prohibits
2
California from enforcing its regulations against a vessel that “is otherwise legally fishing” in
3
California EEZ waters and that is “not registered under the laws of that State.” For the same reasons
4
as discussed above, the California crab trap tag limitations applies only to California permitted
5
vessels – all vessels fishing in California waters and adjacent EEZ are “registered under the laws of
6
that state.”
7
In sum, the California Crab Trap Limit Program does not conflict the Magnuson-Stevens Act
8
or the Dungeness Crab Act. Thus, the Government’s motion for summary judgment on Plaintiffs’
9
eighth claim – preemption under the Magnuson-Stevens Act – is granted.
III.
CONCLUSION
11
For the Northern District of California
United States District Court
10
Based on the foregoing, the Court rules as follows:
12
1.
13
14
15
16
The Government’s motion for summary judgment as to Plaintiffs’ fourth claim –
Privileges and Immunities – is DENIED.
2.
The Government’s motion for summary judgment as to Plaintiffs’ eighth claim –
Magnuson-Stevens Act – is GRANTED.
This order disposes of Docket No. 67.
17
18
IT IS SO ORDERED.
19
20
Dated: December 9, 2013
21
_________________________
EDWARD M. CHEN
United States District Judge
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