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Appeal from the United States District Court for the Northern District of California, Maxine M. Chesney, District Judge, Presiding. Argued and Submitted August 16, 2007—San Francisco, California. Filed September 16, 2008, Before: Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges. Opinion by Judge O’Scannlain; Partial Concurrence and Partial Dissent by Judge Hawkins

Timothy Sandefur, Pacific Legal Foundation, Sacramento, California, argued the cause for the plaintiffs-appellants and filed briefs; Meriem L. Hubbard, Pacific Legal Foundation, Sacramento, California, was on the briefs. Diann Sokoloff, Deputy Attorney General, Oakland, California, argued the cause for the defendants-appellees and filed a brief; Bill Lockyer, Attorney General for the State of California, Alfredo Terrazas, Senior Assistant Attorney General, Wilbert E. Bennett Supervising Deputy Attorney General, Oakland, California, were on the brief.

The court must decide whether a state regulatory scheme violates the equal protection rights of pest controllers. Alan Merrifield appeals from a grant of summary judgment denying his request for a permanent, prospective injunction of California’s structural pest control licensing requirements. He engages in “non-pesticide animal damage prevention and bird control” (“ADP & BC”), which includes installing spikes, screens, and other mechanical devices in or on buildings and other structures so as to remove vertebrate pests—e.g., skunks, raccoons, squirrels, rats, pigeons, starlings, bats—or to keep them away from structures. California law requires all persons engaged in structural pest control to obtain licenses, with certain statutory exemptions. Merrifield argues that the applicable licensing requirement is intended for pesticide-based pest control, and that he should be exempt from such requirement because he does not use pesticides.