Fenwick Secures Pro Bono Win for Independent Fishers

Mountain View, CA (October 29, 2015) – Fenwick & West acted as pro bono counsel for small independent fishers who had endured high out-of-state fees for commercial fishing licenses and permits instituted by California’s Department of Fish and Wildlife. In the case, Kevin Marilley, et al v. Charlton Bonham, the Ninth Circuit ruled in favor of Fenwick’s clients, striking down California’s practice of charging higher license fees to nonresident fishers as unconstitutional.

“Some of these fishers had raised concerns about the fee differential for over twenty years, but had never been able to find an attorney willing to take the case and challenge the fees in court,” Fenwick litigator Todd Gregorian said.

“We were thankful for the opportunity to advocate for these small businessmen who often had to pay thousands of dollars more than a California resident for the same fishing activity,” said Gregorian who co-led the Fenwick team representing the fishers.

California first introduced the higher out-of-state fees in the 1980s and 1990s. On several occasions the California legislature raised fees for commercial fishing permits to cover budget shortfalls for the Department of Fish and Wildlife. Since out-of-state fishers had no advocate during this process, the legislature set fees for nonresidents that were approximately two to four times higher than those charged to residents for commercial fishing licenses, boat registrations, dungeness crab vessel permits and herring gill net permits.

With assistance from co-counsel Gross Law, P.C., a group of fishers who had paid higher fees since 2009 finally brought suit against Charles Bonham, the director of the California Department of Fish and Wildlife. The firm secured a favorable summary judgment order from Magistrate Judge Donna Ryu in the district court and brought Fenwick into the case to brief the appeal.

The fishers argued that the higher nonresident fees violated the United States Constitution’s Privileges and Immunities Clause which guarantees citizens the right to earn a living in every state on equal terms with state residents.

The state sought to defend the unequal fees, arguing that it collected less from the four challenged fees than it spent to maintain the fisheries and therefore it was free to allocate the shortfall however it wished.

The Ninth Circuit rejected this argument, holding that the state may justify a differential fee only by showing either that it addresses a particular problem caused by nonresidents or that it approximates the amount a resident separately pays in taxes toward maintaining the fishery. The court declared the fees discriminatory and unconstitutional.

The decision was filed September 18, 2015. The Fenwick team representing the fishers was co-led by Todd Gregorian with Emmett Stanton and Sebastian Kaplan also providing support.

The case represents one of the many pro bono projects Fenwick lawyers take on each year. Over the past five years, Fenwick attorneys and staff have logged almost 50,000 pro bono hours valued at close to $20 million in legal fees. Fenwick’s pro bono program includes civil rights, child advocacy and political asylum work, as well as impact litigation and death penalty cases, and advocacy for the Appellate Project, Street Law and AIDS Project. The firm has received many accolades for its pro bono work, including being named to The National Law Journal's 2014 Pro Bono Hot List and recognized by Euromoney as having the best pro bono program in North America two years in a row.

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