Marilley v. McCamman et al

Filing 48

Order by Magistrate Judge Donna M. Ryu granting in part and denying in part 16 Defendants' Motion to Dismiss.(dmrlc1, COURT STAFF) (Filed on 11/8/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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KEVIN MARILLEY, and SALVATORE
PAPETTI, on behalf of themselves and
similarly situated,

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Plaintiffs,

No. C-11-02418 DMR
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS

v.
JOHN McCAMMAN, et al.,
Defendants.

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___________________________________/
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Defendants John McCamman, Donald Koch, Jim Kellogg, Richard B. Rogers, Michael

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Sutton, Daniel W. Richards, and Jack Baylis move the court pursuant to Federal Rules of Civil

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Procedure 12(b)(1) and 12(b)(6) to dismiss Plaintiffs Kevin Marilley and Salvatore Papetti’s First

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Amended Complaint (“FAC”) in part for lack of subject matter jurisdiction and for failing to state a

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claim upon which relief can be granted. The court conducted a hearing on November 3, 2011,

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during which the parties were given an opportunity to present oral argument. For the reasons below,

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Defendants’ motion is granted in part and denied in part.

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I. BACKGROUND
California charges nonresidents higher fees than residents for commercial fishing licenses,

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registrations, and permits. See Cal. Fish & Game Code §§ 7881 (commercial fishing vessel

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registrations), 7852 (commercial fishing licenses), 8550.5 (gill net permits), 8280.1 (Dungeness crab

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vessel permits). The 2011 differential fees include:

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• Commercial fishing licenses:

$122.75 (residents); $367.75 (non-residents)

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• Vessel registration:

$322.25 (residents); $967.50 (non-residents)

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• Gill net permits:

$341.75 (residents); $1,290.25 (non-residents)

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• Dungeness crab vessels:

$258.25 (residents); $516.00 (non-residents)

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(FAC ¶ 2.)
On May 18, 2011, Plaintiff Kevin Marilley filed a complaint against Defendants in their
individual and official capacities, challenging the constitutionality of California’s differential fees

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For the Northern District of California

United States District Court

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under the dormant Commerce Clause, the Privileges and Immunities Clause, the Equal Protection

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Clause, and 42 U.S.C. § 1983. (Compl. 21-25.) Plaintiff alleged that the Department of Fish and

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Game (“DFG”) Director John McCamman, Chief Deputy Director Kevin Hunting, and former

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Director Donald Koch (“DFG Defendants”) exercised or failed to exercise their authority to adjust

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the allegedly discriminatory nonresident commercial fishing fees. (Compl. ¶¶ 15-24.) Plaintiffs

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similarly alleged that California Fish and Game Commission members Jim Kellogg, Richard B.

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Rogers, Michael Sutton, Daniel W. Richards, and Jack Baylis (“Commission Defendants”) violated

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their rights by failing to adjust the allegedly discriminatory herring permit fees. (Compl. ¶¶ 26-36.)

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Plaintiffs sought declaratory relief, injunctive relief, and compensatory and punitive damages.

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(Compl. 25-26.)

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On August 22, 2011, Defendants moved to dismiss the following claims pursuant to Rules

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12(b)(1) and 12(b)(6): (1) Plaintiff’s challenge to California’s nonresident fee for Dungeness crab

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vessel permits; (2) claims for monetary damages against all Defendants; (3) claims for declaratory

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relief against all Defendants; (4) claims for injunctive relief against all Defendants except the current

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Director of DFG; and (5) the Dormant Commerce Clause cause of action. [Docket No. 16.]

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On September 27, 2011, while Defendants’ motion was pending, Plaintiffs filed the FAC

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adding Salvatore Papetti as a lead plaintiff and alleging additional facts as to Plaintiffs’ standing to

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challenge the Dungeness crab vessel permit fees. Plaintiffs subsequently filed their opposition to

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Defendants’ motion in which they voluntarily dismissed their Dormant Commerce Clause claim.

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(Pls.’ Opp. 1.) On October 4, 2011, Plaintiffs voluntarily dismissed all claims against Chief Deputy

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Director Hunting. [Docket No. 40.] Because Plaintiffs’ opposition was filed subsequent to the FAC

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and Defendants’ reply addressed the FAC, the court will evaluate Defendants’ motion as it applies to

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Plaintiffs’ FAC.

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II. LEGAL STANDARD

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A.

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A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in

Federal Rule of Civil Procedure 12(b)(6)

reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all of the

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For the Northern District of California

the complaint. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). When

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United States District Court

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factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per

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curiam) (citation omitted), and may dismiss the case “only where there is no cognizable legal theory

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or an absence of sufficient facts alleged to support a cognizable legal theory.” Shroyer v. New

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Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citation & quotation marks

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omitted). When a complaint presents a cognizable legal theory, the court may grant the motion if

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the complaint lacks “sufficient factual matter to state a facially plausible claim to relief.” Id. (citing

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Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). A claim has facial plausibility when a plaintiff

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“pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949 (citation omitted).

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The issue on a motion to dismiss for failure to state a claim is not whether the claimant will

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ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims

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asserted. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citations omitted).

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When evaluating such a motion, the court must accept all material allegations in the complaint as

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true, even if doubtful, and construe them in the light most favorable to the non-moving party. Cahill

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v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). “[C]onclusory allegations of law and

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unwarranted inferences,” however, “are insufficient to defeat a motion to dismiss for failure to state

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a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996).

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B.

Federal Rule of Civil Procedure 12(b)(1)

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A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction

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over the claims asserted. Fed. R. Civ. P. 12(b)(1). A motion to dismiss for lack of subject matter

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jurisdiction may be either a facial or a factual attack on jurisdiction. A facial attack asserts that the

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allegations in a complaint are insufficient to invoke federal jurisdiction. A factual attack disputes

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the truth of the allegations that would otherwise confer federal jurisdiction. Safe Air for Everyone v.

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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). When standing is factually attacked in a Rule 12(b)(1)

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motion, the court may hear evidence before ruling on the issue. St. Clair v. City of Chico, 880 F.2d

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199, 201 (9th Cir. 1989).

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A.

Plaintiffs’ Article III Standing to Pursue Claims Regarding the Dungeness Crab
Vessel Permit Fees

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For the Northern District of California

United States District Court

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III. DISCUSSION

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Defendants move to dismiss Plaintiffs’ claims regarding the Dungeness crab vessel permit

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fees under Federal Rule of Civil Procedure 12(b)(1) on the ground that both named plaintiffs lack

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standing to pursue these claims. In their motion, Defendants raised a facial jurisdictional attack

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under Rule 12(b)(1) regarding Plaintiff Marilley’s standing to pursue claims related to Dungeness

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crab vessel permit fees, and a factual jurisdictional attack regarding Plaintiff Papetti’s standing to

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pursue the same claims, challenging the allegation that Papetti has paid non-resident fees for

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Dungeness crab vessel permits in the past and intends to do so in the future. See Safe Air for

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Everyone, 373 F.3d at 1039.

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On October 25, 2011, the court ordered Plaintiffs to file supplemental briefing regarding

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Plaintiff Papetti’s standing to pursue these claims. On October 31, 2011, Plaintiffs submitted the

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requested supplemental briefing, in which Plaintiffs represented that Salvatore Papetti’s son, Savior

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Papetti, with whom Salvatore has held and paid for crab vessel permits, has agreed to act as a named

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plaintiff in this putative class action. (Gross Decl. ¶ 5, Oct. 31, 2011.) According to Plaintiffs’

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counsel, Savior Papetti has “commercially harvested Dungeness crab in California every year but

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one, each year since at least 2006, including in 2011, . . . has paid some or all of the nonresident fee

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required to renew the crab permit he holds with his father, and he intends to commercially fish

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Dungeness crab in California this year and for many years into the future.” (Gross Decl. ¶ 6.)

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On November 2, 2011, prior to the hearing on the present motion, the parties submitted a

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stipulation and proposed order seeking leave for Plaintiffs to file a second amended complaint

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adding Savior Papetti as a named plaintiff [Docket No. 44]. At the hearing on this motion, without

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waiving their right to object following the filing of the second amended complaint, Defendants

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agreed that the facts set forth in Plaintiffs’ supplemental briefing regarding Savior Papetti appear to

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show that he has standing to bring claims related to the Dungeness crab vessel permits. Therefore,

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the court grants Plaintiffs’ request for leave to file a second amended complaint adding Savior

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Papetti as a named plaintiff and denies without prejudice Defendants’ motion to dismiss Plaintiffs’

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claims regarding the Dungeness crab vessel permit fees.
B.

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For the Northern District of California

United States District Court

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Next, Defendants seek dismissal of Plaintiffs’ damages claims against them in their personal

Plaintiffs’ Claims for Damages Against Defendants in their Personal Capacity

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capacities for alleged violations of the Privileges and Immunities Clause and the Equal Protection

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Clause on the grounds that they are entitled to qualified immunity. The defense of qualified

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immunity protects “government officials . . . from liability for civil damages insofar as their conduct

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does not violate clearly established statutory or constitutional rights of which a reasonable person

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would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The defense shields “all but

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the plainly incompetent or those who knowingly violate the law,” meaning that defendants can have

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a reasonable, but mistaken belief about the facts or about what the law requires in any given

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situation and still be entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 202 (2001)

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(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)); see also Pearson v. Callahan, 555 U.S. 223,

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231 (qualified immunity covers “mere mistakes in judgment, whether the mistake is one of fact or

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one of law.”) (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)). “[B]ecause the entitlement is

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an immunity from suit rather than a mere defense to liability,” the Supreme Court has “repeatedly . .

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. stressed the importance of resolving immunity questions at the earliest possible stage in litigation.”

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Hunter v. Bryant, 502 U.S. 224, 227 (1991).

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In determining whether an official is entitled to qualified immunity, courts conduct a two-

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prong inquiry. For the first prong, a court considers whether the facts alleged, construed in the light

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most favorable to the plaintiff, show that the official’s conduct violated a constitutional right. For

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the second prong, a court considers whether the right at issue was “clearly established” at the time of

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the official’s alleged misconduct, in light of the specific context of the case. Saucier, 533 U.S. at

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201. “Qualified immunity is applicable unless the official’s conduct violated a clearly established

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constitutional right.” Pearson, 555 U.S. at 232. Courts may consider the two prongs in either order.

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Id. at 236. If either question is answered in the negative, the defendant is immune from liability for

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damages. Id. “[A]lthough the first Saucier prong calls for a factual inquiry, the second prong of the

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Saucier analysis is “solely a question of law for the judge.” Dunn v. Castro, 621 F.3d 1196,

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1198-99 (9th Cir. 2010) (quoting Tortu v. Las Vegas Metro. Police Dep’t, 556 F.3d 1075, 1085 (9th

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Cir. 2009) (internal citation omitted). Thus, courts have the discretion to grant qualified immunity
on the basis of the ‘clearly established’ prong alone, without deciding whether any constitutional

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For the Northern District of California

United States District Court

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right has been violated. Dunn, 621 F.3d at 1199 (quoting James v. Rowlands, 606 F.3d 646, 651

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(9th Cir. 2010).

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To determine whether a right was “clearly established,” the court must turn to Supreme

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Court and Ninth Circuit law existing at the time of the alleged act. See Osolinski v. Kane, 92 F.3d

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934, 936 (9th Cir. 1996). In the absence of binding precedent, the court should look to available

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decisions of other circuits and district courts to ascertain whether the law was clearly established.

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Id. For the right to be clearly established, “[t]he contours of the right must be sufficiently clear that

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a reasonable official would understand that what he is doing violates that right.” Anderson v.

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Creighton, 483 U.S. 635, 640 (1987). It is not necessary that the injured party establish that the

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defendant’s “behavior had been previously declared unconstitutional.” Rodis v. City, County of San

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Francisco, 558 F.3d 964, 969 (9th Cir. 2009) (internal quotation marks omitted). The relevant

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inquiry is whether it would be clear to a reasonable official that his or her conduct was unlawful in

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the situation he or she confronted. Saucier, 533 U.S. at 202; Rodis, 545 F.3d at 969.

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1.

Dittman/Grossman Rule

Defendants first argue that they are entitled to qualified immunity pursuant to the Ninth

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Circuit’s “Dittman/Grossman” rule because they acted in reliance on a statute in collecting

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differential licensing and permitting fees. (Defs.’ Mot. 14-18.) Under the Dittman/Grossman rule,

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an official is ordinarily entitled to qualified immunity when he or she “act[ed] in reliance on a duly

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enacted statute or ordinance.” Grossman v. City of Portland, 33 F.3d 1200, 1210 (9th Cir. 1994);

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Dittman v. California, 191 F.3d 1020, 1027 (9th Cir. 1999). “[T]he existence of a statute

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authorizing particular conduct is a factor that supports the conclusion that a reasonable official

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would find that conduct constitutional.” Grossman, 33 F.3d at 1209. This is because officials are

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“ordinarily entitled to rely on the assumption that the [legislature] has considered the views of legal

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counsel and concluded that the [regulation or policy] is a valid and constitutional exercise of

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authority.” Id. However, reliance upon a statute, regulation, or official policy does not render the

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officer’s conduct per se reasonable. Dittman, 191 F.3d at 1027. Qualified immunity will not be

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granted to a public official who enforces a statute, regulation, or policy that is “patently violative of

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For the Northern District of California

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fundamental constitutional principles.” Grossman, 33 F.3d at 1209.
Plaintiffs argue that the Dittman/Grossman rule does not apply here because Defendants

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“each played a primary role in setting the Nonresident Commercial Fishing Fees.” (Pls.’ Opp’n 22.)

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Plaintiffs analogize the facts in this case to the facts of Community House, Inc. v. City of Boise,

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Idaho, 623 F.3d 945, 965 (9th Cir. 2010). In that case, the plaintiff filed a section 1983 action

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against a city and a number of individual city officials for allegedly violating the Due Process

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Clause, Establishment Clause, and federal Fair Housing Act by leasing and then selling a city-owned

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building to a religious organization that operated the facility as a homeless shelter for single men

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and included in its activities Christian religious services and pre-meal prayers. Id. at 951. The

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Ninth Circuit reversed the lower court’s denial of summary judgment, concluding that the individual

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defendants were entitled to the defenses of legislative and qualified immunity. Id. at 973.

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The Community House defendants argued that the Dittman/Grossman rule applied to them

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because they were “unmistakably acting in furtherance of decisions made by the City Council.” Id.

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at 965 (internal quotation marks omitted.) However, the plaintiff disputed this characterization of

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defendants’ role, arguing instead that they had played a “primary role” in the alleged “wrongful

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conduct and in developing the plan and advising the Council.” Id.

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Given that the parties “hotly dispute[d]” the specific roles played in the matter by the

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defendants, as well as the requirement that the court “accept the facts and reasonable inferences in

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the light most favorable to” the plaintiff given the case’s procedural posture, the Ninth Circuit

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hesitated to apply the Dittman/Grossman rule. Id. Instead, the court examined the issue according

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to the second prong of the qualified immunity analysis, and concluded the defendants were entitled

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to qualified immunity because the rights allegedly violated were not clearly established at the

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relevant times. Id. at 971-72.

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In contrast to Community House, Plaintiffs do not allege that Defendants played any role in

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the enactment of the challenged statutes.1 Instead, Plaintiffs urge this court to extend the Ninth

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Circuit’s reasoning in Community House to find that the Dittman/Grossman rule does not apply

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where, as here, Defendants are alleged to have played a role in adjusting differential fees subsequent

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to the adoption of statutes which originally set those fees. However, with respect to the Commission
Defendants, Plaintiffs fail to allege sufficient facts in the FAC to support their assertion that they

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For the Northern District of California

United States District Court

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played a “primary role” in setting the challenged nonresident commercial fishing fees subsequent to

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their original adoption. In the FAC, Plaintiffs allege that the Commission Defendants “failed to

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fulfill their duties under [Fish and Game Code] Section 8552.1 to ensure that appropriate fees were

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charged for Herring Gill Net Permits.” (FAC ¶ 97.) Section 8552.1 provides in relevant part:

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The commission, in consultation with the department and
representatives of the commercial roe herring fishery, and after
holding at least one public hearing, may adjust the fees charged for
permits; . . . to a level that will not discourage the transfer of permits
or limit entry into the fishery, and that will ensure sufficient funds to
cover reasonable department costs associated with the management
of the fishery, including research and enforcement costs.

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Cal. Fish & Game Code § 8552.1 (emphasis added). Thus, the plain language of the statute grants

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the Commission Defendants some discretion to adjust the differential fees, but does not impose an

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affirmative duty to do so. In addition, the statute closely circumscribes the discretion granted to the

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Commission Defendants. The Commission cannot act alone, and must consult with the DFG and a

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particular segment of the fishing industry, as well as allow for public input. Moreover, the

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Commission “may adjust fees” only “to a level that will not . . . limit entry into the fishery, and will

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ensure sufficient funds . . . associated with the management of the fishery.” Id. Because the

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Commission is only given limited discretion to adjust fees, and not an affirmative mandate to do so, it

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Indeed, Plaintiffs cannot make such an allegation, given that the statutes at issue were
adopted at different points in time, well before any of the Defendants held positions of authority
with either DFG or the Commission. See FAC at ¶¶ 16, 23, 27, 29, 31, 33, 35 (employment dates of
Defendants); FAC at ¶¶ 52, 62, 73, 85 (dates when fees were established).
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cannot be said that the individual Commission Defendants had the kind of authority that amounts to a

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“primary role” in setting the nonresident commercial fishing fees for purposes of the Community

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House exception to qualified immunity. Instead, according to the language of section 8552.1, it

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appears that the Commission Defendants merely acted in furtherance of the statutory scheme adopted

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by the Legislature, essentially playing a passive role in the alleged wrongful conduct in “act[ing] in

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reliance on a duly enacted statute.” Grossman, 33 F.3d at 1209. Accordingly, Plaintiffs’ Community

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House analogy fails with respect to the Commission Defendants, and they are entitled to qualified

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immunity.

under [Fish and Game Code] Section 713 to ensure that the appropriate fees were charged” for the

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As to the DFG Defendants, Plaintiffs similarly allege that they “failed to fulfill their duties

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United States District Court

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nonresident commercial fishing licenses, registrations, and permits. (FAC ¶¶ 58, 69, 80, 96.) Section

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713 provides in relevant part:

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The department shall, at least every five years, analyze all fees for . . .
permits . . . issued by it to ensure the appropriate fee amount is charged.
Where appropriate, the department shall recommend to the Legislature
or the commission that fees established by the commission or the
Legislature be adjusted to ensure that those fees are appropriate.

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Cal. Fish & Game Code § 713(f) (emphasis added). Under this statute, the DFG Defendants have an

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affirmative duty to “analyze” the differential fees every five years and to “recommend” adjustments

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when appropriate. Plaintiffs allege that the DFG Defendants failed to exercise that authority, leaving

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in place the allegedly unconstitutional differential fees.

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Given the affirmative duty granted to the DFG Defendants to analyze the fees and recommend

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adjustments on a regular basis, it is a closer question as to whether the DFG Defendants played a

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“primary role” in setting the nonresident commercial fishing fees following their original adoption.

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Accordingly, accepting Plaintiffs’ allegations as true, coupled with the statutory language of section

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713, the court will not apply the Dittman/Grossman rule as to the DFG Defendants. Instead, the court

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will examine the issue of qualified immunity according to whether the rights allegedly violated were

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clearly established at the time of Defendants’ alleged misconduct.

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Whether the Rights at Issue Were “Clearly Established”
a.

The Privileges and Immunities Clause

Courts have recognized the validity of a discriminatory countervailing fee structure as

overcompensate the state for the provided subsidies or burdens. Supreme Court of N.H. v. Piper, 470

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U.S. 274, 284 n.17 (1985); Mullaney v. Anderson, 342 U.S. 415, 417 (1952); Toomer v. Witsell, 334

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U.S. 385, 398-99 (1948). Plaintiffs argue that Defendants are not shielded by qualified immunity

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because at the time of enforcement, they had no reasonable basis to believe that the extra amounts

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charged to nonresidents were based on a credible method of allocation. (Pls.’ Opp’n 18.) However,

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cases have discussed different potential methodologies for determining whether a fee differential is

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legitimate under the Privileges and Immunities Clause, as long as the higher fees do not

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United States District Court

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constitutionally valid. As the court pointed out in its October 3, 2011 Order Denying Plaintiff’s

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Motion for Preliminary Injunction [Docket No. 37], it remains to be determined what methodology is

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appropriate in this case for assessing the extent to which California may recoup its fishery

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conservation and management expenditures from nonresident commercial fishermen. What is clear is

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that any analysis of the differential fee structure will be fact-intensive. Because differential fee

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structures require fact-intensive analysis, the contours of a credible method of allocating costs

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between residents and nonresidents cannot be said to be clearly established.2 See Anderson, 483 U.S.

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at 640 (for the right to be clearly established, “[t]he contours of the right must be sufficiently clear

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that a reasonable official would understand that what he is doing violates that right.”). Accordingly,

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Defendants did not violate clearly established law under the Privileges and Immunities Clause when

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they collected differential out-of-state licensing and permitting fees. Therefore, all Defendants are

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As Defendants note, California has differentiated between residents and nonresidents with
respect to some of these fees since at least 1990. In other words, the statutes at issue have been
enforced without court challenge for twenty years. (Defs.’ Mot. 16.) Further, a number of states
with commercial fishing activities charge nonresidents more than residents for permits and licenses.
These factors weigh significantly on the side of the reasonableness of a belief in the validity of the
fee structure at issue. See Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 102 (2d Cir. 2003)
(qualified immunity is appropriate when a defendant shows that “no reasonable jury, viewing the
evidence in the light most favorable to the Plaintiff, could conclude that the defendant’s actions were
objectively unreasonable in light of clearly established law.”) (citation omitted).

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entitled to qualified immunity as to Plaintiffs’ Privileges and Immunities claims against them in their

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personal capacities. Defendants’ motion to dismiss Plaintiffs’ damages claims pursuant to the

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Privileges and Immunities clause against all Defendants is granted.

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b.

Equal Protection Clause

shielded by qualified immunity because they could not objectively believe that charging nonresidents

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thousands of dollars more than California residents could be the product of any credible method of

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allocating costs between residents and nonresidents. (Pls.’ Opp’n 19.) This argument fails for the

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same reason that Plaintiffs’ argument regarding the Privileges and Immunities clause fails. As

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previously stated, the contours of a credible method of allocating costs between residents and

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As to Plaintiffs’ Equal Protection claim, Plaintiffs again argue that Defendants are not

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nonresidents cannot be said to have been clearly established at the time of enforcement. In addition,

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as this case does not involve a suspect class (see Baldwin v. Fish & Game Comm’n of Mont., 436

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U.S. 371, 389 (1978)) or a fundamental right, the challenged classification is presumed constitutional

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so long as the classification is rationally related to a legitimate governmental purpose. City of

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Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Courts have routinely held that states

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have a legitimate interest in offsetting subsidies to nonresidents, which Defendants claim California’s

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differential fees aim to accomplish. See Baldwin, 436 U.S. at 391; Barber v. State of Haw., 42 F.3d

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1185, 1196 (9th Cir. 1994); Haw. Boating Ass’n v. Water Transp. Facilities Div., Dep't of Transp.,

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State of Haw., 651 F.2d 661, 666 (9th Cir. 1981). Accordingly, the court cannot say that Defendants

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violated clearly established law under the Equal Protection Clause. Defendants are therefore entitled

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to qualified immunity as to Plaintiffs’ Equal Protection claims against them in their personal

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capacities. Defendants’ motion to dismiss Plaintiffs’ damages claims pursuant to the Equal

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Protection clause against all Defendants is granted.

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Because the court has determined that in light of the specific context of this case, Plaintiffs’
rights under the Privileges and Immunities and Equal Protection Clauses were not clearly established

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at the time of Defendants’ alleged misconduct, the court need not address Saucier’s first prong,

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whether the facts as alleged show that Defendants violated Plaintiffs’ constitutional rights.3

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C.

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Next, Defendants seek to dismiss Plaintiffs’ claim for declaratory relief, in the form of a

Plaintiffs’ Claims for Declaratory Relief

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declaration that the statutory provisions at issue violate the constitution and are null and void. In

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their motion, Defendants argue that such a declaration implicates the past and the future validity of

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the provisions, in that Plaintiffs are seeking in part a declaration that they and the class members were

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overcharged for commercial fishing permits.4 (Defs.’ Mot. 18.) In their opposition and at the hearing

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on this motion, Plaintiffs clarified that they do not seek any retroactive declaratory relief. In
response, Defendants argue that such relief would serve no purpose that would not otherwise be

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served by the injunction Plaintiffs also seek.

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The award of declaratory relief under 28 U.S.C. § 2201 is discretionary. Solenoid Devices,

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Inc. v. Ledex, Inc., 375 F.2d 444, 445 (9th Cir. 1967). Where the relief sought in a declaratory relief

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claim is duplicative of relief sought in another claim or defense, courts may exercise their discretion

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to dismiss the claim as unnecessary. See Englewood Lending Inc. v. G & G Coachella Invs., LLC,

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651 F. Supp. 2d 1141, 1145 (C.D. Cal. 2009); Brady v. Conseco, Inc., No. 08-05746, 2009 WL

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2356201, at *7 (N.D. Cal. July 29, 2009) (“[A] court may decline to hear a claim for declaratory

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relief if adjudication of the issues raised in other claims would fully and adequately determine all

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matters actually in controversy between the parties.”) (citing Philips Med. Capital, LLC v. Med.

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Insights Diagnostics Cent., Inc., 471 F. Supp. 2d 1035, 1048 (N.D. Cal. 2007).

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25
26
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3

As the court resolves Defendants’ motion to dismiss Plaintiffs’ damages claims on
qualified immunity grounds, the court need not reach Defendants’ Eleventh Amendment defense.
See Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981) (“prior to reaching any constitutional questions,
federal courts must consider nonconstitutional grounds for decision.”); see also Pearson, 555 U.S. at
241 (“The Court will not pass upon a constitutional question although properly presented by the
record, if there is also present some other ground upon which the case may be disposed of”) (citing
Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring).
4

Defendants argue that such retrospective relief is barred by the Eleventh Amendment. See
Verizon Md., Inc. v. Public Service Comm’n of Md., 535 U.S. 635, 645 (2002) (in order to avoid an
Eleventh Amendment bar, a complaint must seek relief “‘properly characterized as prospective.’”
(citing Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997).

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1

Plaintiffs argue that members of the Legislature are not proper defendants in this action, and

2

so cannot be bound by any injunction issued by this court. Therefore, Plaintiffs argue, the requested

3

declaratory relief is “a necessary and appropriate means by which the unconstitutionality of [the

4

statutory provisions] can be communicated to the Legislature so to dissuade the Legislature from

5

enacting any further legislation that suffers from the same constitutional shortcomings.” (Pls.’ Opp’n

6

25.)

7

At this early stage in the litigation, it is unclear what the exact contours of any injunctive

8

relief awarded to Plaintiffs would be, should they prevail. The necessity of declaratory relief may be

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apparent at the time the court reaches a decision on the merits of this case. Further, whether or not
Plaintiffs’ claims for declaratory relief survive the present motion will not affect the manner in which

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this case is litigated. Therefore, the court declines to rule on this issue at this time. Accordingly,

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Defendants’ motion to dismiss Plaintiffs’ claims for declaratory relief is denied without prejudice.

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D.

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Finally, Defendants move to dismiss Plaintiffs’ claims for injunctive relief against all

Plaintiffs’ Claims for Injunctive Relief Against All Defendants

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Defendants except the current DFG Director5, on the grounds that only the current Director, in his

16

official capacity, is responsible for enforcing the challenged statutes. Defendants argue that the

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Commission has no enforcement role regarding commercial fishing fees and no authority to adjust the

18

fees so that residents and nonresidents would be charged equal amounts. As the Commission

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Defendants have no authority to enforce the fees at issue, nor adjust the differential fee structure for

20

residents and non-residents, Defendants argue that no injunction against any Commission Defendant

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can provide relief to Plaintiffs and so such relief is unnecessary. (Defs.’ Mot. 19-20.)

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Notwithstanding Defendants’ arguments that injunctive relief against the Commission

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Defendants is superfluous, the court concludes that claims for injunctive relief against any Defendant

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other than the current DFG Director are barred by the Eleventh Amendment. Official capacity claims

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26
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5

Plaintiffs’ FAC names John McCamman as the current DFG Director. While this motion
was pending, McCamman left the position and was replaced by Charlton Bonham. Plaintiffs are
ordered to reflect this change in their Second Amended Complaint.

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1

for equitable relief are not ordinarily subject to the Eleventh Amendment when they are prospective.

2

See Ex parte Young, 209 U.S. 123, 159-60 (1908). Relief is considered “prospective” when it is

3

“designed to end a continuing violation of federal law [and is] necessary to vindicate the federal

4

interest in assuring the supremacy of that law.” Green v. Mansour, 474 U.S. 64, 68 (1985).

5

However, the named officials must have “the requisite enforcement connection to” the challenged

6

law for the Ex parte Young exception to apply. See Nat’l Audubon Soc’y, Inc. v. Davis, 307 F.3d

7

835, 847 (9th Cir. 2002) (plaintiffs may sue a state official for injunctive relief under Ex parte Young

8

only if the official has “direct authority over and principal responsibility for enforcing” the

9

challenged statute).
Plaintiffs argue that they were injured by the failure of the Commission Defendants to

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exercise their authority under Fish & Game Code section 8552.1 to adjust the fees charged

12

nonresidents for permits, and that there is a continuing threat that, absent the requested injunctive

13

relief, the Commission Defendants and their successors would continue to fail in this duty. (Pls.’

14

Opp’n 24.) Therefore, Plaintiffs argue, they are entitled to an injunction requiring the Commission

15

Defendants and/or their successors to fulfill this duty. However, Plaintiffs allege that DFG is the

16

agency that enforces the fees at issue. (FAC ¶¶ 6, 17, 18, 24, 59, 70, 81, 98.) Plaintiffs have not

17

alleged that the Commission Defendants are in any way responsible for enforcement. Further, as

18

discussed supra, section 8552.1 only provides that the Commission “may adjust the fees charged for

19

permits.” Cal. Fish & Game Code § 8552.1. In other words, section 8552.1 merely confers

20

discretion on the Commission to adjust fees. It does not confer the type of authority that establishes

21

the connection to enforcement required by Ex parte Young. Moreover, Defendants Koch and

22

McCamman lack enforcement authority over the challenged statutes, given their status as former

23

DFG Directors. Therefore, the Ex parte Young exception does not apply to the Commission

24

Defendants and Defendants Koch and McCamman, and suit against them is barred by the Eleventh

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Amendment. Accordingly, Defendants’ motion to dismiss Plaintiffs’ claims for injunctive relief

26

against all Defendants except the current DFG Director is granted.

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IV. CONCLUSION

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For the foregoing reasons, Defendants’ motion to dismiss is denied without prejudice as to

2

Plaintiff’s challenge to California’s nonresident fee for Dungeness crab vessel permits, granted as to

3

Plaintiffs’ claims for monetary damages against all Defendants, denied without prejudice as to

4

Plaintiffs’ claims for declaratory relief against all Defendants, and granted as to Plaintiffs’ claims for

5

injunctive relief against all Defendants except the current Director of DFG.

For the Northern District of California

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United States District Court

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Dated: November 8, 2011

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IT IS SO ORDERED.

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