# Panabaker v. Hood River

> District Court, D. Oregon · March 31, 2025

URL: https://www.frixlaw.com/law-library/cases/10836291

## Case

- **Court:** District Court, D. Oregon
- **Decided:** March 31, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10836291

## How later opinions describe it (automated extraction)

- recognizing that a regulation may be invalidated under the Dormant Commerce Clause "when a lack of national uniformity would impede the flow of interstate goods."

## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RUSTON PANABAKER, SHERI PANABAKER, Case No.: 3:24-cv-00901-AN
JOHN J HUTSON, JENNIFER L HUTSON,
DAVID T JOHNSON, SUSANNA JOHNSON,
ROBERTA THOMPSON, MATTHEW
BERENSON, MARK D TAYLOR, and PAULA OPINION AND ORDER
BLANCHET,

Plaintiffs,
v.

CITY OF HOOD RIVER,

Defendant.

Plaintiffs Ruston Panabaker, Sheri Panabaker, John Hutson, Jennifer Hutson, David
Johnson, Susanna Johnson, Roberta Thompson, Matthew Berenson, Mark Taylor, and Paula Blanchet bring
this action against defendant City of Hood River ("City") alleging violations of the Dormant Commerce
Clause. The parties have filed cross-motions for summary judgment. The Court held oral argument on
March 21, 2025. For the reasons that follow, plaintiffs' motion is DENIED, and defendant's motion is
GRANTED.
LEGAL STANDARD
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The
moving party bears the burden of showing that there is no genuine issue of material fact. Rivera v. Philip
Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). "Material facts are those which might affect the outcome
of the suit." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Materiality is
determined using substantive law. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party." Id.
When a moving party demonstrates the absence of a genuine dispute as to any material
fact, the nonmoving party that bears the burden at trial must show in response that there is evidence creating
a genuine dispute as to any material fact. Rivera, 395 F.3d at 1146 (citing Celotex Corp. v. Catrett, 477
U.S. 317, 323-25 (1986)). The court must view the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in its favor. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir.
2010). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge." Anderson, 477 U.S. at 255.
BACKGROUND
Plaintiffs are homeowners in Hood River who purchased their homes prior to 2016. Am.
Compl., ECF [12], ¶ 1. They "spend[] substantial time in Hood River themselves" and rent out their
properties to vacationers in Hood River. Id. Ruston Panabaker and Sheri Panabaker are residents of
Washington who own homes in Washington and Hood River and began renting their property in Hood
River for vacation home rental use around 2012. Id. ¶ 11. John Hutson and Jennifer Hutson are residents
of California who own homes in Santa Cruz and Hood River and began renting their Hood River property
for vacation home rental use around 2012. Id. ¶ 12. David Johnson and Susanna Johnson are residents of
Washington who own homes in Washington and Hood River and began renting their Hood River property
for vacation home rental use around 2009. Id. ¶ 13. Thompson is a resident of California who owns homes
in Santa Cruz and Hood River and began renting her Hood River property for vacation home rental use in
2004. Id. ¶ 14. Berenson is a resident of Alaska who owns property in Anchorage and Hood River and
began renting his Hood River property for vacation home rental use in 2009. Id. ¶ 15. Taylor and Blanchet
are residents of British Columbia who own property in British Columbia and Hood River and began renting
the property as a vacation home rental in the summer and winter in "the late 1990s." Id. ¶ 16. All plaintiffs
held short-term rental licenses to rent out their homes until January 2024. They desire to continue renting
out their homes for vacation rental use but allege that they cannot comply with city ordinances relating to
short-term rentals. Id. ¶¶ 11-16.
As relevant to this action, Ordinance 2026, which took effect in October 2016, amended
Hood River's existing zoning ordinance to add provision 17.04.155, "Hosted Homeshares and Vacation
Home Rentals." Brann Decl., ECF [17], Ex. 1 ("Ordinance 2026"), at 15 (all references to ECF pagination).
The provision permits "dwelling units" to be used as "hosted homeshares or vacation home rentals" in
residential zones with restrictions. A hosted homeshare is the "transient rental of a portion of a dwelling
while the homeowner is present," while a vacation home rental is "the transient rental of an entire dwelling
unit." Id. A person operating a homeshare or vacation home rental must have a short-term rental operating
license. Id. A homeshare or vacation home rental is only permitted in residential zones "when it is an
accessory use to the existing and continued residential use of a dwelling as the primary residence of the
property owner" and must be limited to ninety days per calendar year. Id. at 15-16. Ordinance 2026 was
implemented to "create a desired balance between the quality of life of this community and economic health
of the city" by ensuring sufficient housing for workers and to "preserve and promote the city's 'quality of
life' including small town atmosphere [and] family-oriented community" by reducing the "clustering of
vacation rentals." Id. at 1.
For nonconforming homeshares and vacation home rentals that existed at the time of the
passage of the ordinance, the City provided five years to come into compliance with parking requirements
and seven years to come until compliance with all other requirements, including the residential use and
ninety-day limits. Id. at 16. As a result, existing homeshares and vacation rentals had until October 2023
to conform with the requirements.
Ordinance 2028 took effect in November 2016. As relevant to this action, that ordinance
amended the Hood River Municipal Code to add Chapter 5.10, which governs short-term rental operating
licenses. Brann Decl. Ex. 2 ("Ordinance 2028"), at 2 (all references to ECF pagination). It provides the
terms of annual short-term rental operating licenses and the criteria for approval. As relevant to this action,
Ordinance 2028 requires an applicant to provide proof of residential use as "established through its
continued use as the primary residence of the property owner." Id. at 8. To prove residential use, an
applicant may use a copy of their voter registration, Oregon Driver's License or Identification Card, or a
copy of their federal income tax return from the previous tax year to show that the dwelling is their primary
residence. Id. Ordinance 2028 has the same stated justifications as Ordinance 2026. See id. at 1.
In October 2023, the City informed nonconforming property owners "that their licenses
would not be renewed and that they must cease operation." Am. Compl. ¶ 38. Plaintiffs allege that their
licenses were not renewed because they do not meet the residency requirement. Id. ¶ 37.
Ordinance 2083 amended Chapter 5.10 on July 22, 2024, to clarify the licensing
requirement of proof of primary residential use for short-term rentals. Brann Decl. Ex. 3 ("Ordinance
2083"), at 4 (all references to ECF pagination). Ordinance 2083 was implemented to "increase the number
of dwellings in the City used for long-term tenancy and to provide reasonable opportunities for homeowners
to satisfy the 'primary residence' requirement for [short-term rental] licenses." Id. at 2. It sets forth that the
phrase "primary residence of the property owner" shall be interpreted to include "the title owner or a long-
term tenant who resides on the property under a residential lease with a term of at least 12-months." Id.
The City stated that the ordinance was "necessary for the immediate preservation of public peace, health,
and safety of the City of Hood River, to alleviate hardship on out of state property owners who wish to
short-term rent their Hood River dwellings, to adhere to constitutional requirements, and to take full
advantage of the benefits of increasing the opportunities of long-term tenancy in dwellings that heretofore
have only been available for short-term rental." Id.
Plaintiffs first filed this action on June 5, 2024, and amended the complaint on July 31,
2024, after Ordinance 2083 was implemented. Plaintiffs allege that Ordinances 2026, 2028, and 2083
(collectively, the "Ordinances") completely exclude out-of-state homeowners from offering vacation home
rentals in Hood River and reserves the market for in-state owners. Am. Compl. ¶ 42. This is because,
plaintiffs allege, the plain language of Ordinance 2083 only permits out-of-state owners to participate in
the rental market if they convert their homes to hosted homeshares, with a long-term tenant also present in
the home. Id. ¶ 41. Plaintiffs allege that the Ordinances discriminate on their face against out-of-state
homeowners who desire to rent out their homes as vacation home rentals in violation of the Dormant
Commerce Clause. Id. ¶¶ 43-54. They seek an order declaring Ordinances 2026 and 2028 unconstitutional
on their face and an order enjoining enforcement of the Ordinances. Id. ¶ 55.
Plaintiffs filed a motion for summary judgment on August 16, 2024. Defendant filed a
cross-motion for summary judgment on September 13, 2024.1 The Court heard oral argument on March
21, 2025.
DISCUSSION
Plaintiffs argue that Ordinances 2026 and 2028 violate the Dormant Commerce Clause by
directly discriminating against out-of-state property owners who wish to participate in the vacation home
rental market and that Ordinance 2083's amendment to the primary residence requirement does not cure the
violation. Pls. Mot. Summ. J. ("Pls. Mot."), ECF [16], at 2. Defendants maintain that it is established law
in this Circuit that a short-term rental licensing scheme that permits someone other than the owner to satisfy
a residency requirement does not violate the Dormant Commerce Clause. Def. Resp., ECF [26], at 2.
A. Dormant Commerce Clause
The Commerce Clause of the United States Constitution gives Congress the power "[t]o
regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes[.]" U.S.
Const. art. I, § 8, cl. 3. "'Although the Commerce Clause is by its text an affirmative grant of power to
Congress to regulate interstate and foreign commerce, the Clause has long been recognized as a self-
executing limitation on the power of the States to enact laws imposing substantial burdens on such
commerce.'" Ass'n des Eleveurs de Canards et d'Oies du Quebec v. Harris, 729 F.3d 937, 947 (9th Cir.
2013) (quoting Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir.2012)).
This negative aspect, referred to as the Dormant Commerce Clause, "denies the States the power
unjustifiably to discriminate against or burden the interstate flow of articles of commerce." Or. Waste Sys.,
Inc. v. Dep't of Env't Quality of State of Or., 511 U.S. 93, 98 (1994). "The primary purpose of the dormant
Commerce Clause is to prohibit 'statutes that discriminate against interstate commerce' by providing

1 As an initial matter, plaintiffs argue that defendant's motion must be denied because defendant "must do more than
incorporate by reference its opposition to [p]laintiffs' Motion for Summary Judgment to meet its burden under Rule
56." Pls. Resp., ECF [32], at 5. Because both parties address the same legal issue in their filings, the Court declines
to put form over substance and will not deny defendant's motion on this basis. See, e.g., Am. Motorists Ins. Co. v.
Fireman's Fund Ins. Co., No. C 05-01030 CRB, 2007 WL 735767, at *1 & n.1 (N.D. Cal. Mar. 7, 2007) (granting the
defendant's cross-motion for summary judgment "in which [it] simply incorporate[d] [its] opposition to [plaintiff]'s
original motion [for summary judgment].").
benefits to 'in-state economic interests' while 'burdening out-of-state competitors.'" Ass'n des Eleveurs de
Canards et d'Oies du Quebec, 729 F.3d at 947 (quoting Nat'l Ass'n of Optometrists & Opticians, 682 F.3d
at 1148).
When reviewing a challenge to local regulations under the Dormant Commerce Clause,
courts "follow a two-tiered approach:"
"[1] When a state statute directly regulates or discriminates against interstate commerce,
or when its effect is to favor in-state economic interests over out-of-state interests, we have
generally struck down the statute without further inquiry. [2] When, however, a statute has
only indirect effects on interstate commerce and regulates evenhandedly, we have
examined whether the State's interest is legitimate and whether the burden on interstate
commerce clearly exceeds the local benefits."
Rosenblatt v. City of Santa Monica, 940 F.3d 439, 444 (9th Cir. 2019) (alterations in original) (quoting
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986)).
B. Direct Regulation and Discrimination
"Direct regulation occurs when a state law directly affects transactions that take place
across state lines or entirely outside of the state's borders." S.D. Myers, Inc. v. City & Cnty. of San
Francisco, 253 F.3d 461, 467 (9th Cir. 2001) (internal quotation marks and citation omitted). To prevail
on a facial challenge to a local regulation, a plaintiff "must meet a high burden of proof; [they] must
'establish that no set of circumstances exists under which the [Ordinance] would be valid. The fact that [the
Ordinance] might operate unconstitutionally under some conceivable set of circumstances is insufficient to
render it wholly invalid.'" Id. (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). Because this
is a high burden, courts "construe the Ordinance narrowly and resolve any ambiguities in favor of the
interpretation that most clearly supports constitutionality." Id. at 468 (citation omitted). "A discriminatory
law is 'virtually per se invalid' . . . and will survive only if it 'advances a legitimate local purpose that cannot
be adequately served by reasonable nondiscriminatory alternatives[.]'" Dep't of Revenue of Ky. v. Davis,
553 U.S. 328, 338 (2008) (quoting Or. Waste Sys., Inc., 511 U.S. at 99).
Discrimination may be on the face of the regulation or in purpose or effect. A local
regulation is discriminatory if it "'impose[s] commercial barriers or discriminate[s] against an article of
commerce by reason of its origin or destination out of State.'" Ass'n des Eleveurs de Canards et d'Oies du
Quebec, 729 F.3d at 948 (quoting C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383, 390 (1994)).
"Conversely, a statute that 'treat[s] all private companies exactly the same' does not discriminate against
interstate commerce." Id. (alteration in original) (quoting United Haulers Ass'n, Inc. v. Oneida-Herkimer
Solid Waste Mgmt. Auth., 550 U.S. 330, 342 (2007)). "The party challenging a regulation bears the burden
of establishing that a challenged statute has a discriminatory purpose or effect under the Commerce Clause."
Rocky Mountain Farmers Union v. Corey, 730 F.3d 1070, 1097 (9th Cir. 2013) (citing Hughes v. Oklahoma,
441 U.S. 322, 336 (1979)). The court should "'assume that the objectives articulated by the legislature are
actual purposes of the statute, unless an examination of the circumstances forces us to conclude that they
could not have been a goal of the legislation.'" Id. at 1097-98 (quoting Minnesota v. Clover Leaf Creamery
Co., 449 U.S. 456, 463 n.7 (1981)).
"If a statute discriminates against out-of-state entities on its face, in its purpose, or in its
practical effect, it is unconstitutional unless it 'serves a legitimate local purpose, and this purpose could not
be served as well by available nondiscriminatory means.'" Id. at 1087 (quoting Maine v. Taylor, 477 U.S.
131, 138 (1986)).
The Ninth Circuit has provided helpful guidance on determining whether short-term rental
licensing schemes violate the Dormant Commerce Clause. In Rosenblatt v. City of Santa Monica, the city
of Santa Monica implemented a local regulation prohibiting property rentals for thirty days or less, with an
exception for homeshares "if 'at least one of the dwelling unit's primary residents lives on-site, in the
dwelling unit, throughout the visitors' stay.'" 940 F.3d 439, 450 (9th Cir. 2019) (quoting Santa Monica
Mun. Code § 6.20.010(a)). The city sought to preserve its available housing supply, the "character and
charm which result, in part, from cultural, ethnic, and economic diversity of its resident population," and a
sense of community. Id. at 443. The plaintiff sued to enjoin the ordinance, arguing that it violated the
Dormant Commerce Clause. Id.
At the first tier of analysis, the Ninth Circuit found that the city ordinance did not directly
regulate interstate commerce because, although the vast majority of vacation rentals involve an out-of-state
party, the ordinance only regulates conduct within Santa Monica, so effects to out-of-state persons are
indirect. Id. at 445-46. The court then turned to the question of whether the ordinance directly
discriminated against interstate commerce. As relevant to this action, the plaintiff argued that the Santa
Monica ordinance discriminated because the residency requirement permitted only Santa Monica residents
to engage in short-term rentals. Id. at 450. The court rejected that argument. It noted that the ordinance
"does not require the primary resident in the dwelling to be the owner of the dwelling" and that an out-of-
state owner could "extract economic value from the property" by "rent[ing] out the property on a long-term
basis with a condition that one of the rooms be used for the owner's short-term rentals" or "expressly allow
the long-term renter to sublet a on a short-term basis in exchange for paying a higher monthly rent." Id. at
450-51. The court concluded that, although there was a residency requirement,
"Santa Monica's ordinance does not prohibit out-of-state property owners from home
sharing in their out-of-state homes, nor does it prohibit them from allowing home sharing
in their Santa Monica properties. While non-resident property owners cannot personally
serve as the primary resident whose presence is required during the home share, that is
because they are not similarly situated to the Santa Monica residents who can."
Id. at 451.
1. Regulation
In this case there is no evidence, and no party meaningfully disputes, that the Ordinances
directly regulate interstate commerce. The Ordinances only regulate conduct that occurs within Hood
River, so any effects on out-of-state residents are indirect.
2. Facial Discrimination and Discriminatory Effect
Plaintiffs argue that the Ordinances discriminate against interstate commerce through their
residency requirement. Plaintiffs understand Ordinance 2083 to be intended to correct any potential
Dormant Commerce Clause issue and bring the Ordinances in line with those approved in Rosenblatt by
permitting the "primary residence of the property owner" requirement to be satisfied by a long-term tenant.
However, plaintiffs maintain that this was ineffective because if a long-term tenant must be maintained
during any short-term rental, that tenant will be on site at all times, effectively making a full vacation home
rental impossible and limiting non-resident property owners to hosted homeshares. Pls. Mot. 11-12.
Plaintiffs compare this case to a Fifth Circuit case, Hignell-Stark v. City of New Orleans,
that found a licensing program for short-term rentals in New Orleans unconstitutional on Dormant
Commerce Clause grounds. 46 F.4th 317, 321 (5th Cir. 2022). One term of the licensing program at issue
was a requirement that the property be the "owner's primary residence." Id. Plaintiffs sued on numerous
grounds, including that the residency requirement violated the Dormant Commerce Clause because it
discriminated against interstate commerce. Id. at 322. The district court found that although the residency
requirement discriminated against interstate commerce, it was constitutional because the burden it imposed
was not clearly excessive in relation to the putative local benefits. Hignell-Stark, 46 F.4th at 322 (citing
Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970)).
The Fifth Circuit reversed, finding that the regulation imposed a burden only on out-of-
state owners and thus discriminated against them. The court held that the regulation "doesn't just make it
more difficult for [out-of-state owners] to compete in the market for [short-term rentals] in residential
neighborhoods; it forbids them from participating altogether." Id. at 326. The court then determined that
the city had other nondiscriminatory options to serve its interests of "preventing nuisances, promoting
affordable housing, and protecting neighborhoods' residential character[;]" it could, according to the court,
increase nuisance enforcement, increase nuisance penalties, increases taxes on short-term rentals, or reduce
housing regulations to increase supply. Id. at 328-29.
Plaintiffs point to a California appellate case in accord with Hignell-Stark. In South Lake
Tahoe Property Owners Group v. City of South Lake Tahoe, out-of-state property owners challenged an
ordinance that prohibited short-term or vacation rentals in residential zones and barred the city from issuing
any new permits for vacation home rentals except for those in permanent residents' dwellings. 310 Cal.
Rptr. 3d 9, 16-17 (Cal. App. 2023), as modified on denial of reh'g (July 12, 2023), rev. denied (Oct. 11,
2023). The regulation effectively limited short-term vacation rentals in residential zones to persons who
lived in the property the majority of the year and claimed a homeowner's property tax exemption. Id. at 26.
The court found Hignell-Stark persuasive and held that plaintiffs had adequately stated a claim that the
ordinance discriminated on its face against interstate commerce. Id. at 35-36. The court distinguished this
case from Rosenblatt because "[u]nlike [the South Lake Tahoe regulation], the Santa Monica ordinance did
not require the primary resident of the home-shared dwelling to be the dwelling's owner." Id. at 32 (citing
Rosenblatt, 940 F.3d at 450).
Plaintiff's argument is premised on a constrained and unsupported reading of the
Ordinances. As defendant notes, nothing in the Ordinances "prevent[s] an owner from requiring the long-
term tenant be vacant for certain specified times as a condition of the long-term lease" or "using a portion
of the residence for a long-term tenant while maintaining the rest of the home for [short-term rentals] and
vacation use."2 Def. Resp. 11. The Ordinances do not prohibit out-of-state property owners from
participating the vacation home rental market.
Further, the Ordinances apply this requirement equally to in-state and out-of-state owners.
If an Oregon resident resides in a different home than their rental property, whether in Hood River or
elsewhere in the state, the rental would not be "an accessory use to the existing and continued residential
use of a dwelling as the primary residence of the property owner." Ordinance 2026 15-16. As a result, any
in-state owner who does not reside in the rental as their primary residence would also be required to secure
a long-term tenant in order to participate in the vacation home rental market.
Plaintiffs argue for the first time in their reply that the Ordinances unconstitutionally
"require an out-of-state owner to establish itself in Hood River through an in-state resident" in a similar
manner as unconstitutional laws that "require an out-of-state business to incorporate an in-state subsidiary
to enter a market." Pls. Reply 5. Plaintiffs rely on Nationwide Biweekly Admin., Inc. v. Owen, 873 F.3d
716 (9th Cir. 2017), which is not on point. In that case, the regulation at issue was a prorater law that
required anyone acting as a prorater to obtain a prorater license from California while simultaneously stating
that prorater licenses "'shall only be issued to a corporation organized under the laws of this State for that
purpose.'" Nationwide Biweekly Admin., 873 F.3d at 736 (quoting Cal. Fin. Code § 12200). The Ninth

2 Plaintiffs raise on reply that Oregon Revised Statutes § 90.100(51)(a)(A), which defines "tenant," makes it "unclear,
if not doubtful," that a property owner and renter could enter into a lease that permits subletting or requires temporary
vacancies. Pls. Reply, ECF [33], at 8. Plaintiffs do not cite any statute or caselaw in support of this argument, and
the Court has been unable to locate any.
Circuit found that the law discriminated against interstate commerce because it "require[d] any corporation
that wants to engage in a certain kind of business within the state to become a resident." Id. The implication
of this holding is that a law requiring proraters to obtain a license in California so that they can participate
in the California market would have been permissible if it did not also require the prorater company to
incorporate within the state. Here, out-of-state residents can participate in the short-term rental market in
Hood River by obtaining a license, and they are not required to become residents of Hood River or Oregon
to do so. There is thus no compulsion to become a resident.
The Ordinances do not prohibit out-of-state property owners from participating in the
short-term rental market, either in the vacation home or hosted homeshare markets. The Ordinances also
apply equally to all property owners who do use the property as their primary residence, whether they reside
in Hood River, elsewhere in Oregon, or out of state. Accordingly, the Ordinances do not discriminate
against out-of-state property owners.
3. Discriminatory Purpose
Although plaintiffs do not explicitly raise the argument, they devote two pages of their
motion to quoting from testimony of attendees at public hearings regarding the Ordinances, which they
argue "demonstrate[s] that the Ordinance was intended to prevent out-of-state individuals from operating
[short-term rentals] in Hood River." Pls. Mot. 9. To the extent that plaintiffs raise a discriminatory purpose
argument, it is not meritorious. The testimony of non-legislator attendees at public hearings cannot be used
to describe the legislative intent of the Ordinances. Absent any evidence to the contrary, the Court must
accept the stated intent of the legislature, which is to ensure sufficient housing and maintain the quality of
life of the community. These are not discriminatory purposes.
C. Substantial Burden
"If an ordinance regulates evenhandedly with only incidental effects on interstate
commerce," the court reaches the second tier of the analysis. Rosenblatt, 940 F.3d at 451. At this tier,
courts employ what is often referred to as the Pike balancing test, which states that "[w]here the statute
regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate
commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly
excessive in relation to the putative local benefits." Pike, 397 U.S. at 142. The Ninth Circuit has "explained
that under Pike, a plaintiff must first show that the statute imposes a substantial burden before the court will
'determine whether the benefits of the challenged laws are illusory.'" Ass'n des Eleveurs de Canards et
d'Oies du Quebec, 729 F.3d at 951-52 (quoting Nat'l Ass'n of Optometrists & Opticians, 682 F.3d 1144 at
1155).
There is limited guidance as to what constitutes a substantial burden because plaintiffs
"face a heavy burden" in showing that a statute imposes a substantial burden; "the Supreme Court 'has not
invalidated a law under Pike' in more than 30 years." Flynt v. Bonta, No. 22-16376, 2025 WL 815194, at
*10 (9th Cir. Mar. 14, 2025) (quoting Truesdell v. Friedlander, 80 F.4th 762, 773 (6th Cir. 2023)).
Substantial burdens "generally result from inconsistent regulation of activities that are inherently national
or require a uniform system of regulation." Nat'l Ass'n of Optometrists & Opticians, 682 F.3d at 1148; see,
e.g., Exxon Corp. v. Governor of Maryland, 437 U.S. 117, 129 (1978) (recognizing that a regulation may
be invalidated under the Dormant Commerce Clause "when a lack of national uniformity would impede the
flow of interstate goods.").
Defendant argues that plaintiff, who bears the burden, has not presented any evidence that
the Ordinances impose a burden on interstate commerce. Def. Resp. 17. Plaintiffs argue for the first time
on reply that the Ordinances are excessively burdensome because they impose additional costs on out-of-
state owners. Plaintiffs note that they may have to enter into leases that specify that a long-term tenant
would vacate the property at times to permit short-term rentals, lease their property for longer than a year
in order to have a tenant that covers the entirety of the short-term rental license period, negotiate periodic
absences, or wait for a tenant to update their identity documents to show proof of residence. Pl. Reply 8-9.
These concerns, at least one of which is based on speculation about how quickly a long-
term tenant would update the address on their state license, do not constitute a substantial burden. Out-of-
state owners, who already engage possible tenants and negotiate leases regularly as part of their business,
face minimal additional requirements to obtain a short-term rental license. Although plaintiffs may prefer
to enter into a shorter lease or avoid negotiations about vacating the property, having to do so does not
excessively burden them. See Int'l Fur Trade Fed'n v. City & Cnty. of San Francisco, 472 F. Supp. 3d 696,
703 (N.D. Cal. 2020) ("Because [the law] simply precludes a preferred, and perhaps more profitable,
method of [doing business], it does not impose a substantial burden[.]"). To the extent that these concerns
materialize, they would do so equally, to all persons renting out property in Hood River that is not their
primary residence, regardless of their state of residence. And although plaintiffs may prefer to compete
differently to attract tenants, "the dormant Commerce Clause does not guarantee that [market participants]
may compete on the terms they find most convenient." Rocky Mountain Farmers Union, 730 F.3d at 1092.
Although plaintiffs are concerned about the possibility of negotiating a non-standard lease agreement, it
does not seem implausible that a long-term tenant might spend 275 days or fewer per year in Hood River,
maintaining a home there for the long term, while subletting or otherwise making the home available for
the remaining ninety days of the year. This is, in fact, what every plaintiff in this case does.
Plaintiffs have not met the threshold requirement of showing that the Ordinances impose a
substantial burden on interstate commerce. Even if they had, the alleged burdens are not clearly excessive
in relation to the putative benefits. The Court accepts the explanation provided in the Ordinances that their
purpose is to ensure housing supply, promote quality of life, avoid clusters of vacation rentals, and reduce
hardship on out-of-state property owners. These benefits are not "illusory" and are not outweighed by any
alleged burdens on plaintiffs.
CONCLUSION
For the foregoing reasons, plaintiffs' Motion for Summary Judgment, ECF [16], is
DENIED, and defendant's Motion for Summary Judgment, ECF [28], is GRANTED.
IT IS SO ORDERED.

DATED this 31st day of March, 2025.
Mh coe D jeLson
Adrienne Nelson
United States District Judge
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10836291. Public record. Not legal advice.