Since we're
discussing the Supremacy Clause and Gibbons v. Ogden is coming up soon in class,
one of the cases sometimes called "historical" as though the meaning has been
lost in the historical mist, I'd like to note here that the Ninth Circuit has
brought Gibbons to life in Young v. Coloma-Agaran 93 CDOS 7682 at
law.com. No.02-15202. DC No. CV-00-00774-HI Filed Aug. 25,
2003
Try this on for
size.
Whitey's Boat
Cruises, Inc. a Hawaii corporation dba Na Pali Catamarans and another company
dba Capt. Sundown Enterprises sell tour boat rides out of Hanalei Bay,
Kauai. They hold federal and state licenses.
The federal license,
issued by the U.S. Coast Guard, is a "coasting" license with endorsements
allowing coastwise trade in the navigable waters of the U.S., which include
Hanalei Bay. As an aside, Hanalei Bay is where the Bali Hai scenes
were shot in the film "South Pacific," book by James Michener. The Na Pali
peaks are a short voyage from Hanalei.
The State of Hawaii
license consists of "use-permits" allowing the tour operators to carry a limited
number of passengers on a limited number of trips. The use permits
contained an automatic termination provision such that the permits would
expire in case the state adopted a rule prohibiting the permitted
conduct. In 2000 the state adopted a rule banning commercial vessels
operating in beautiful Hanalei Bay and the Hanalei River, which feeds into
it.
The state notified
the licensees that their permits would soon expire and they would no longer be
permitted to conduct business out of Hanalei Bay.
Plaintiff tour
operators sued in U.S. District Court seeking a declaratory judgment and
injunctive relief on the ground that the ban violates the federal
Constitution. Both parties moved for summary judgment. The District
Court granted a permanent injunction in favor of plaintiff tour operators,
concluding that the ban violates the Supremacy Clause of the Constitution
because it conflicts with the federal licensing laws AND violates the Commerce
Clause.
Observing that state
law may conflict with federal law expressly, implicitly, or by actual conflict,
the 9th Circuit reviewed the licensing provisions, summarized as
follows:
The Coasting
Licenses, issued per 46 USC 12106 are issued to vessels engaging in the
coastwise trade, which includes the transportation of passengers, citing Gibbons
v. Ogden 22 U.S. (9 Wheat) 215-219 (1824).
The "sweeping
nature" of the coasting license "is premised on the idea that that right to
engage in interstate commerce derives from natural law and the Constitution
confers absolute control of its regulation to congress." The Coast Guard's
regulations reflect the law established in Gibbons that a coasting license
"entitles a vessel to employment in unrestricted coastwise trade." 46 CFR
Sec. 67.19(a).
Citing authority to
the effect that no state may completely exclude federally licensed commerce, the
9th Circuit recognized that the right secured by the coasting license is not
boundless. The negative implication of Gibbons, it said, "is that States
may impose upon federal licensees reasonable, nondiscriminatory conservation and
environmental protection measures otherwise within their police
power."
The opinion sets
forth facts suggesting that the state apparently imposed the ban in response to
local opposition to continued tour boat operation on Hanalei Bay and the
river. No facts were set forth justifying the ban on environment or
conservation grounds. The number of use permits granted was originally
fifteen, reduced over time to four.
The 9th Circuit held
that "Evenhanded local regulation to effectuate a legitimate local public
interest is valid unless preempted by federal action."
Thus, even if the
ban is an exercise of concurrent power, the state's contention is immaterial to
our analysis; ...[here] the ban actually conflicts with the federal licensing
scheme."
The 9th Circuit
upheld the District Court's summary judgment in favor of the boat operators
"under preemption analysis" and thus declined to consider whether the ban
violates the Commerce Clause.
The Steamboat Case
lives.
R.
Sheridan
SFLS
It was of interest
to note that the right to engage in interstate commerce is said to derive from
natural law and that the Constitution merely permits its
regulation.
Interstate commerce
is a matter of natural law? If commerce is included in natural law, is
there anything that isn't? Is the Constitution a subset of natural
law? If we could figure out the contents of natural law, would we need a
Constitution? Like what for? Who enacted natural
law?
This raises, to me,
a question posed by Randy Barnett in another of his thought provoking articles,
asking the reason constitutions should be obeyed. Is it because some form
of fictionalized consent is said to have been obtained, or benefits have been
accepted, or it's just a real good idea if we'd like to get along
together. These are my informal characterizations, from recollection,
inspired by the article, not his.
