Kevin Marilley v. Charlton Bonham, 802 F.3d 958

A class of nonresident commercial fishers sued California, challenging higher fees for nonresidents on commercial fishing licenses, vessel registrations, and certain permits (Herring Gill net and Dungeness Crab), alleging violations of the Privileges and Immunities Clause.
At issue were materially higher fees for nonresidents (roughly 2–4x resident rates); combined fees equaled about $1,100.78 for residents versus $3,260.25 for nonresidents (2012–13 figures).
The district court granted summary judgment for the plaintiff class on the Privileges and Immunities claim; the Equal Protection claim was not decided and is not before the court on appeal.
The Ninth Circuit reviews de novo and applied the established two-step Privileges and Immunities test: (1) whether the activity is a protected privilege (common calling), and (2) whether the discrimination is closely related to a substantial state interest.
The State justified the fee differential as compensating for conservation and enforcement expenditures funded by resident-only taxes; it argued plaintiffs must show exclusion or a protectionist purpose.
The Ninth Circuit affirmed: the fees burden the right to pursue a common calling and California failed to show the differential closely relates to a substantial state interest or approximates resident tax contributions for the relevant expenditures.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does commercial fishing qualify as a "common calling" protected by the Privileges and Immunities Clause?	Commercial fishing is a common calling and therefore protected.	—	Held: Yes; activity is protected.
Must plaintiffs show they are excluded or discouraged from the calling to satisfy step one?	No—burdening the calling suffices; exclusion is not required.	Plaintiffs must show prevention/ discouragement of pursuit.	Held: No exclusion requirement; direct burden on a protected activity is enough.
Does the State have to prove a protectionist legislative purpose at step one?	No; intent is part of step two analysis of justification, not step one.	McBurney requires showing protectionist purpose at step one.	Held: Rejected—protectionist intent is relevant to step two, not a threshold requirement.
Do the differential fees survive step two (substantial reason closely related to discrimination)?	State argues fees compensate for conservation/enforcement costs funded by resident-only taxes; fee aggregate is small relative to budget shortfall.	Fees are not closely related to residents’ tax contributions nor shown to approximate resident-paid share for relevant expenditures.	Held: Fees invalid; State failed to show the differential bears a close relation to a substantial state interest or to residents’ tax contributions.

Sup. Ct. of Va. v. Friedman, 487 U.S. 59 (1988) (articulates two-step Privileges and Immunities test)
Toomer v. Witsell, 334 U.S. 385 (1948) (holds states may charge nonresidents to the extent fees approximate "taxes which only residents pay")
Mullaney v. Anderson, 342 U.S. 415 (1952) (invalidates nonresident fee where state failed to justify differential by reference to resident tax burden)
Baldwin v. Fish & Game Comm’n, 436 U.S. 371 (1978) (Privileges and Immunities does not cover activities not basic to the national union)
Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287 (1998) (applies Clause principles to tax-differential context)
Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925 (9th Cir. 2008) (discusses substantial reason requirement and nonprotectionist justifications)
Tangier Sound Waterman’s Ass’n v. Pruitt, 4 F.3d 264 (4th Cir. 1993) (discusses allocation of costs and validity of nonresident differentials)