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Jon K. Ficher, Deputy Director
March 16, 2009 Dear Mr. Ficher, As the President of the California NWCO
Association, representing the Wildlife Control Operators in this
state, I call upon the Fish and Game Commission to delete Sections
4005(e) "The licensing scheme in this case [Merrifield v. Lockyer] specifically singles out pest controllers like Merrifield in the exemption legislation [ Business and Professions Code Section 8555(g)]. Needless to say, this type of singling out, in connection with a rationale so weak that it undercuts the principle of non-contradiction, fails to meet the relatively easy standard of rational basis review. Indeed, the record highlights that the irrational singling out of three types of vertebrate pests from all other vertebrate animals was designed to favor economically certain constituents at the expense of others similarly situated, such as Merrifield. Although economic rights are at stake, we are not basing our decision today on our personal approach to economics, but on the Equal Protection Clause’s requirement that similarly situated persons must be treated equally." When the Assembly’s Water, Parks and Wildlife Committee crafted AB 87, at the behest of the Pest Control Operators of California (PCOC), it created two similarly situated groups of vertebrate pest controllers who compete for the same control work. The advantaged group now consists of people who hold either a Branch 2 Structural Pest Control License or a Qualified Applicators License or Certificate issued by the Department of Pesticide Regulation. The second, or disadvantaged group, now consists of those pest controllers, including many Wildlife Control Operators, who do not possess either of the aforementioned licenses. In effect, AB87 singles out five types of vertebrate pests, from all of California’s nongame mammals, and exempts members of the advantaged group from the necessity of acquiring a DFG trapping license when trapping any of these singled out mammals. Members of the disadvantaged group are required to have the DFG trapping license when trapping any of these five singled out mammals. This requirement involves the burdensome costs associated with studying the DFG trapping license materials, the costs to travel to and from DFG testing location, the cost in terms of wages paid to these applicants and the cost of the DFG license fee itself. The DFG trapping license is an individual license not a company license so an employer might have to incur associated costs for any number of employees who commercially trap mice, rats, gophers, moles or voles for the company. The Merrifield v. Lockyer case helped to establish the principle that the legislature may not arbitrarily grant preferences to some businesses as opposed to others, but that its laws must bear some genuine relationship to the protection of the public. The Court concluded "that mere economic protectionism for the sake of economic protectionism is irrational with respect to determining if a classification survives rational basis review….Economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest." The Court’s decision in the Merrifield case requires that restrictions on economic freedom have some plausible connection to protecting the public health and safety. The sponsors of AB87 argued that having to pay all the costs associated with obtaining DFG trapping licenses was duplicative and unfair since the Branch 2 and QAL license and certificate holders had already been tested for their trapping knowledge and skills when they were initially tested by their respective regulatory agencies. However, this assertion turned out to be untrue. The Court record in Merrifield V. Lockyer reveals the result of a content analysis of the SPCB Branch 2 test leading to licensure. The facts showed that the test contained virtually no questions about these five nongame mammals nor did it have any questions regarding the traps or trap sets used to capture these exempted animals. What’s more, the Branch 2 test does not even attempt to measure the applicant’s knowledge or skill in trapping any nongame mammals. As for the QAL exam given by the Department of Pesticide Regulation, I can state quite categorically that the QAL I took on two occasions did not test for my trapping knowledge or skills either. How then is the DFG trapping license requirement in AB87 duplicative? What is the genuine relationship of Section 4005(e) (2) and (3) to the protection of the public? There is none and it serves no legitimate governmental purpose. It protects only the advantaged group to the detriment of the disadvantaged group. Again, as the Court has stated, "Economic protectionism for its own sake, regardless of its relation to the common good, cannot be said to be in furtherance of a legitimate governmental interest." Timothy Sandefur, a constitutional lawyer for the Pacific Legal Foundation’s Economic Liberty Project said it well when he stated; "Competition encourages the innovation that forces companies to devise new, alternative ways of doing business, and creates the diversity of goods and services that keep consumers satisfied. The only winners in the cartel system are the existing companies that can rely on [their regulatory agencies] to maintain their profitable market share. Sheltered by the government, they have little incentive to innovate and diversify their services. In contrast, new start-up businesses would invigorate the market with ideas to reach more customers with more services at lower prices." Section 4005 (2) and (3) are anticompetitive and protectionist regulations on their face and as applied, and they unreasonably burden an individual’s economic liberties guaranteed under the Fourteenth Amendment of the United States Constitution. I urge the DFG Commission to review the decisions of the Ninth U.S. Circuit Court of Appeals made in the Merrifield V. Lockyer case and then take appropriate action to delete these two sections from the regulatory code and then instruct the DFG Law Enforcement Division to enforce Section 4005 without regard to the unconstitutional licensing exemptions contained in Section 4005(e) (2) and (3). I thank you for your attention to this matter. Sincerely, Alan Merrifield
cc: Timothy Sandefur, Sr. Attorney
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