## Facts

- California set higher commercial fishing license and permit fees for nonresidents than for residents, sometimes two to three times higher.
- The challenged fees covered multiple commercial fishing privileges, including vessel registration, individual commercial fishing licenses, and certain fishery-specific permits.
- Nonresident commercial fishers who paid the higher fees sued a state official responsible for administering the licensing program, seeking classwide relief.
- Plaintiffs alleged the fee differentials burdened nonresidents’ ability to pursue commercial fishing in California and were not justified by costs attributable to nonresidents.
- The district court granted summary judgment for plaintiffs on the Privileges and Immunities Clause claim and awarded retrospective monetary refunds; a three-judge panel affirmed.
- On rehearing en banc, the Ninth Circuit revisited both the constitutionality of the differential fees and the permissibility of the refund remedy.

## Issues

1. Whether charging nonresidents higher commercial fishing license and permit fees burdens a protected “common calling” under the Privileges and Immunities Clause.
2. If so, whether California showed a substantial reason for the discrimination and a sufficiently close relationship between the higher nonresident fees and that reason.
3. Whether the district court’s award of retrospective monetary refunds against a state official was barred, in whole or in part, by sovereign immunity limits on retroactive relief.

## Decision

- The en banc Ninth Circuit substantially reversed the judgment for plaintiffs and upheld most of the resident/nonresident fee differentials.
- The court accepted that commercial fishing is a protected common calling and that the differential fees burden nonresidents’ pursuit of that calling.
- The court held California identified substantial reasons for charging nonresidents more, including recovering conservation and enforcement costs and accounting for nonresidents’ lack of contribution through state taxes.
- The court concluded the record supported a sufficient relationship between most differentials and the asserted cost-recovery rationale; the numeric size of the differential alone was not dispositive.
- The court limited the availability of retrospective monetary refunds and remanded for modification of relief consistent with sovereign immunity constraints and for any remaining fee-specific issues.

## Legal Principles

- The Privileges and Immunities Clause protects nonresidents’ right to pursue a common calling in another state, including commercial fishing.
- When a state burdens a protected privilege through differential treatment of nonresidents, the state must show (1) a substantial reason for the discrimination and (2) a close relationship between the discrimination and that reason.
- A state may impose higher fees on nonresidents to recoup conservation and enforcement costs and to account for nonresidents’ failure to contribute to such costs through general taxation, so long as the differential is not arbitrary or protectionist.
- The constitutionality of a differential fee turns on its relationship to the state’s justified costs and interests, not on the differential’s magnitude viewed in isolation.
- Sovereign immunity generally bars retroactive monetary relief that would operate as compensation for past state action; suits against state officials principally permit prospective equitable relief.

## Conclusion

The en banc Ninth Circuit held that California largely justified higher nonresident commercial fishing fees under the Privileges and Immunities Clause based on conservation and enforcement cost recovery and nonresidents’ lesser tax contributions, while restricting retrospective refund relief as impermissibly retroactive under sovereign immunity principles.


Marilley v. Bonham, 844 F.3d 841 (9th Cir. 2016) (en banc)