California Ass'n of Professional Scientists v. Department of Fish & Game

In this appeal we consider whether the Legislature ran afoul of the supermajority requirement of article XIII A of the California Constitution when it imposed a flat fee per environmental review by the Department of Fish and Game (Fish and Game). More precisely, we must determine whether the exactions imposed by section 711.4 of the Fish and Game Code constitute a regulatory fee or a tax.

Determining whether an exaction is a fee or a tax has been a recurring chore since 1978 when the voters in California enacted comprehensive and constitutional tax reform. (Cal. Const., art. XIII A (the Jarvis-Gann Property Tax Initiative or Proposition 13).) An act to increase state taxes must be passed by two-thirds of the members of the Legislature and an increase in local taxes must be passed by a two-thirds vote of the qualified electors. (Cal. Const., art. XIII A, §§ 3 & 4.) Fees, by contrast, are not subject to the supermajority limitation of article XIII A. Albert Mills, an appellant in both cases, insists the environmental review fees charged by Fish and Game pursuant to section 711.4 constitute a tax and, therefore, are unconstitutional because the statute was passed by…