Do you have an e-mail address for Ronnie?
Thanks.
--Larry
At 11:58 AM 8/26/2003, you wrote:
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
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Try this on for size.
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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.
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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.
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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.
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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.�
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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.
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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:
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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).
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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).
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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."
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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.
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The 9th Circuit held that "Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action."
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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."
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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.
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The Steamboat Case lives.
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R. Sheridan
SFLS
[EMAIL PROTECTED]
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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.
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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?
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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.
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