No.

13-1064
================================================================
In The
Supreme Court of the United States
--------------------------------- ---------------------------------
JAMES COURTNEY AND CLIFFORD COURTNEY,
Petitioners,
v.
DAVID DANNER, IN HIS OFFICIAL CAPACITY
AS CHAIRMAN AND COMMISSIONER
OF THE WASHINGTON UTILITIES AND
TRANSPORTATION COMMISSION, ET AL.,
Respondents.
--------------------------------- ---------------------------------
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
--------------------------------- ---------------------------------
REPLY TO BRIEF IN OPPOSITION
--------------------------------- ---------------------------------
MICHAEL E. BINDAS
Counsel of Record
INSTITUTE FOR JUSTICE
10500 N.E. 8th Street, Suite 1760
Bellevue, WA 98004
(425) 646-9300
mbindas@ij.org
WILLIAM H. MELLOR
ROBERT P. FROMMER
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
Counsel for Petitioners
================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i

TABLE OF CONTENTS
Page
INTRODUCTION ................................................ 1
I. The Ninth Circuits Discussion Of Eco-
nomic Rights Was Not Dicta ................... 2
II. Lake Chelan Is A Navigable Water Of
The United States Not An Intrastate
Water ........................................................ 4
III. The Courtneys Challenge Washingtons
Power To Exclude Their Ferry From Lake
Chelan Not To Regulate Ferries ............. 6
IV. The Courtneys Claim Is As-Applied
Not Facial .................................................. 7
V. Existing Jurisprudence Does Not Support
A States Power To Monopolize Navigable
Waters Of The United States .................... 8
VI. Amici Would Properly Tether The Privi-
leges Or Immunities Clause Not Open
A Pandoras Box ......................................... 13
CONCLUSION ..................................................... 13


ii

TABLE OF AUTHORITIES
Page
CASES
Anonymous, (1750) 1 Vesey 476 (Ch.) ........................ 5
City of Chicago v. Atchison, Topeka & Santa Fe
Rwy. Co., 357 U.S. 77 (1958) ................................... 8
City of Sault Ste. Marie v. Intl Transit Co., 234
U.S. 333 (1914) ..................................................... 6, 9
Conway v. Taylors Executor, 66 U.S. 603
(1861) ...................................................................... 12
Gloucester Ferry Co. v. Pennsylvania, 114 U.S.
196 (1885) ......................................................... 11, 12
Gravesend Case, (1612) 123 Eng. Rep. 883
(C.P.) ......................................................................... 5
Huse v. Glover, 119 U.S. 543 (1886)...................... 5, 12
Mayor of Vidalia v. McNeely, 274 U.S. 676
(1927) .................................................................... 6, 7
Mills v. County of St. Clair, 49 U.S. 569 (1850) ....... 12
N.Y. Cent. & Hudson River R.R. Co. v. Bd. of
Chosen Freeholders, 227 U.S. 248 (1913) .............. 12
People ex rel. Pa. R.R. Co. v. Knight, 64 N.E.
152 (N.Y. 1902) ..................................................... 4, 7
Port Richmond & Bergen Point Ferry Co. v.
Board of Chosen Freeholders, 234 U.S. 317
(1914) ...................................................................... 10
Pub. Utils. Commn v. United States, 355 U.S.
534 (1958) ................................................................. 8
R.R. Co. v. Maryland, 88 U.S. 456 (1874) ................... 5
iii

TABLE OF AUTHORITIES Continued
Page
Saenz v. Roe, 526 U.S. 489 (1999) ............................... 3
Slaughter-House Cases, 83 U.S. 36 (1873) ........ passim
Starin v. Mayor of New York, 115 U.S. 248
(1885) ...................................................................... 11
Twining v. New Jersey, 211 U.S. 78 (1908),
overruled in part on other grounds by Malloy
v. Hogan, 378 U.S. 1 (1964) ..................................... 6
United States v. Chandler-Dunbar Water Power
Co., 229 U.S. 53 (1913)............................................. 5

CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV .............................................. 2

STATUTES
16 U.S.C. 90a-1 ......................................................... 5

1
INTRODUCTION
This is an exceptionally important case, but one
this Court can resolve on limited, narrow grounds. It
is important because, in holding that the right to use
the navigable waters of the United States does not
encompass use for economic activities, App. 19 &
n.5, the Ninth Circuit drew a false dichotomy be-
tween economic and non-economic rights that ignores
the history of the Privileges or Immunities Clause,
contravenes this Courts jurisprudence, and trun-
cate[s] even th[e] remaining nub of constitutional
protection that the clause offers in the wake of the
Slaughter-House Cases, 83 U.S. 36 (1873). Br. Amici
History and Law Professors 2. Preventing the clause
from becoming a dead letter is a task of the utmost
constitutional importance.
It is a task, however, that this Court can accom-
plish in a narrow and measured way. The lower
courts concluded the Courtneys could not even state a
claim for abridgement of their right to use the navi-
gable waters of the United States because that right
does not encompass use of the waters for economic
purposes. This Court would only need to reach that
same issue. If the Court were to conclude that the
Courtneys have stated a claim, then this case could
and should be remanded for a decision on the
constitutionality of the challenged regulations, as
applied on Lake Chelan.
Thus, this case is at once constitutionally pro-
found, yet procedurally narrow. It deserves to be
2
among the few cases on which this Court expends its
limited time and resources in the coming term.
In arguing otherwise, the Washington Utilities
and Transportation Commission (WUTC) ignores the
history of the Privileges or Immunities Clause and
this Courts jurisprudence interpreting it. The WUTC
raises several arguments why this case does not
warrant certiorari but is wrong on every point. The
issues (or non-issues) the WUTC raises are meant to
distract this Courts attention from the real problem
in this case: the Ninth Circuits decision rendered a
vital component of the Fourteenth Amendment mean-
ingless. This Court should not let the milestone of
history that is the Privileges or Immunities Clause
be regarded as a dead end. Id. at 25. Rather, it
should grant certiorari.

I. The Ninth Circuits Discussion Of Eco-
nomic Rights Was Not Dicta
The Ninth Circuits discussion of economic rights
was central to its holding not dicta, as the WUTC
contends. Br. Oppn 8. The WUTCs primary argu-
ment on this point is that [t]he phrase economic
concerns appears in the courts opinion only once. Id.
The WUTC ignores the opinions discussion of eco-
nomic activities, economic rights, the Courtneys
desire to operate a particular business or profes-
sional venture on Lake Chelan, and the commer-
cial nature of the ferry they would run. App. 12, 17,
18, 19 & n.5. Why the WUTC focuses myopically on
3
one phrase and ignores the remainder of the opinion
it never explains.
Equally meritless is the WUTCs contention that
the Ninth Circuits decision does not eliminate[ ]
economic interests from the protection of the Privi-
leges or Immunities Clause. Br. Oppn 8. The deci-
sion plainly holds that, except for the right to travel
in Saenz v. Roe, 526 U.S. 489 (1999), the clause does
not protect economic rights:
Saenz v. Roe represents the Courts only de-
cision qualifying the bar on Privileges or
Immunities claims against the power of the
State governments over the rights of [their]
own citizens. . . . [Saenz] was limited to the
right to travel[,] and . . . [t]he Court has not
found other economic rights protected by [the
Privileges or Immunities C]lause. We have
made clear that this limitation on the Privi-
leges or Immunities Clause remains in effect.
App. 19 n.5 (alterations in original; internal quotation
marks and citations omitted).
The Ninth Circuits belief that the clause does
not protect other economic rights was critical to its
holding that the Courtneys proposed ferry does not
fall within the right to use the navigable waters of
the United States identified in Slaughter-House. The
Courtneys could not state a claim, the court conclud-
ed, because the driving force behind this litigation is
the Courtneys desire to operate a particular business
using Lake Chelans navigable waters an activity
driven by economic concerns. App. 18-19; see also id.
4
at 17 ([T]he Courtneys wish to do more than simply
navigate the waters of Lake Chelan. . . . [T]hey claim
the right to utilize those waters for a very specific
professional venture.). The courts discussion of
economic rights, and of the economic nature of the
Courtneys proposed use of Lake Chelan, was thus
central to its decision.

II. Lake Chelan Is A Navigable Water Of The
United States Not An Intrastate Water
The WUTC is again wrong in insisting this case
concerns Washingtons monopolization of intrastate,
or internal, waters. Br. Oppn 10, 13. The federal
government has designated Lake Chelan a navigable
water of the United States, App. 4-5, and the WUTC
previously conceded that it is a navigable water of
the United States. Ninth Cir. Supp. Excerpts R. 2. In
now claiming the lake is an intrastate water, the
WUTC ignores not only the outlets, tributaries, and
distributaries that link the lake to Canada, Oregon,
and the Pacific Ocean, see Compl. 20, but also
Slaughter-Houses holding that the Privileges or
Immunities Clause protects the right to use navigable
waters of the United States however they may
penetrate the territory of the several States, 83 U.S.
at 79. For this reason, [t]he navigable waters of the
United States, even when they lie exclusively within
the limits of a state, are open to all the world and
require[ ] no leave or license from a state. People ex
rel. Pa. R.R. Co. v. Knight, 64 N.E. 152, 154 (N.Y.
1902).
5
Using such waters is a right of national citizen-
ship precisely because of their national character.
They are the public property of the nation, United
States v. Chandler-Dunbar Water Power Co., 229 U.S.
53, 63 (1913), and, as recognized public highways of
trade and intercourse[,] [n]o franchise is needed to
enable the navigator to use them, R.R. Co. v. Mary-
land, 88 U.S. 456, 470 (1874). Indeed, even the
Northwest Ordinance treated them as highways
equally open to all persons, without preference to
any, and prevent[ed] any exclusive use or monopo-
ly of them. Huse v. Glover, 119 U.S. 543, 547, 548
(1886).
In fact, the right to use navigable waters in-
cluding to operate ferries was established in Eng-
lish common law at the time of the Founding. In the
Gravesend Case, (1612) 123 Eng. Rep. 883 (C.P.), Lord
Chief Justice Coke held that an exclusive grant for
ferry service on the Thames was repugnant, as it
was a common river, so publick, that the King
cannot restrain competition on it. There was equal
liberty . . . to all watermen to carry what passengers
that they could. Id. at 885; see also Anonymous,
(1750) 1 Vesey 476 (Ch.).
Finally, the navigable waters in this case are
uniquely national in character. Stehekin, from which
the Courtneys ferry would operate, is part of the
Lake Chelan National Recreation Area, which Con-
gress created for all Americans. See 16 U.S.C. 90a-1.
It attracts visitors from around the nation. Apart
from air travel, boat transportation across the lake is
6
the only means of accessing this federal property.
App. 5; Compl. 15. Such access is itself protected by
the Privileges or Immunities Clause, and the WUTC
may not impair it. Twining v. New Jersey, 211 U.S.
78, 97 (1908) ([A]mong the rights and privileges of
national citizenship recognized by this court are . . .
the right to enter the public lands. . . .), overruled in
part on other grounds by Malloy v. Hogan, 378 U.S. 1
(1964).

III. The Courtneys Challenge Washingtons
Power To Exclude Their Ferry From Lake
Chelan Not To Regulate Ferries
Beyond mischaracterizing the waters at issue,
the WUTC mischaracterizes the Courtneys claim as
asserting a right to operate a ferry without state
regulation. Br. Oppn 13. The Courtneys are not
challenging Washingtons ability to regulate ferries in
the exercise of its police power for example, by
requiring insurance or inspections. Rather, they
challenge Washingtons power to monopolize a navi-
gable water of the United States and thereby exclude
their use of it.
As this Court has explained in twice holding
exclusive ferry franchises unconstitutional, a law that
make[s] [state] consent a condition precedent to the
operation of a ferry business goes beyond a mere
police regulation. City of Sault Ste. Marie v. Intl
Transit Co., 234 U.S. 333, 339, 340 (1914); see also
Mayor of Vidalia v. McNeely, 274 U.S. 676, 683
7
(1927). Thus, the states power to regulate ferries
does not include the power to license and therefore to
exclude from the business. Id. at 680.
1

The New York Court of Appeals has likewise
distinguished mere police regulations from laws
requiring leave or license from a state and held that
the latter are impermissible on navigable waters of
the United States, even when they lie exclusively
within the limits of a state. Knight, 64 N.E. at 154.
The Courtneys simply allege that the certificate
requirement on Lake Chelan is that type of imper-
missible law.

IV. The Courtneys Claim Is As-Applied Not
Facial
The WUTC is again wrong in attempting to
recast the Courtneys claim as a facial challenge to
the certificate requirement. See Br. Oppn 17-19. The
Courtneys complaint in the very paragraphs the
WUTC cites makes clear that theirs is an as-applied
challenge. E.g., Compl. 119 (As applied to the
provision of boat transportation service on Lake
Chelan that is open to the general public, . . . .). The
Ninth Circuit recognized it as such, App. 4 (The
Courtneys first claim for relief challenges the consti-
tutionality of the PCN requirement as applied to the


1
Although these cases were resolved on Commerce Clause
grounds, as they involved interstate and international ferries,
their holdings regarding the police power are not so limited.
8
provision of public ferry service on Lake Chelan.),
as did the district court, App. 37 (The Courtneys
Complaint alleges that the applicable statutes and
administrative regulations, as applied to their at-
tempts to establish a competing ferry service on Lake
Chelan, . . . .). In fact, until it filed its brief in this
Court, the WUTC consistently acknowledged the claim
was as-applied. E.g., Appellees Br. 10 (In Claim I of
their complaint, the Courtneys allege that Washing-
ton state laws governing certificates of public conven-
ience and necessity for commercial ferries, as applied
to Lake Chelan, . . . .).
The WUTCs eleventh-hour recasting of the claim
is baseless. The Court should not countenance the
tactic, nor should it be dissuaded from granting the
writ.
2


V. Existing Jurisprudence Does Not Support
A States Power To Monopolize Navigable
Waters Of The United States
The WUTCs next suggestion that this Courts
jurisprudence, and that of other courts, recognizes a
states authority to monopolize ferry service on the


2
The WUTC suggests the Courtneys could not have
brought an as-applied challenge because they did not apply for
a certificate during the decade preceding this lawsuit. Br. Oppn
17. The WUTC never made this argument below, and for good
reason: this Court has rejected it. E.g., City of Chicago v.
Atchison, Topeka & Santa Fe Rwy. Co., 357 U.S. 77, 89 (1958);
Pub. Utils. Commn v. United States, 355 U.S. 534, 540 (1958).
9
navigable waters of the United States, see Br. Oppn
9-12 is equally unsupported. None of the cases the
WUTC cites addresses whether the right to use
navigable waters of the United States encompasses
use to operate a ferry, and the WUTC has previously
conceded there are no such cases. Ninth Cir. Supp.
Excerpts R. 2-3 (Have you found any cases that
define the term use? [a]s used in the phrase, the
right to use the navigable waters of the United
States? . . . I have not, Your Honor.). As the Ninth
Circuit explained, the right has yet to be interpreted
by a single federal appellate court in the privileges or
immunities context, and, therefore, its boundaries
. . . have not been established. App. 14.
Instead, the WUTC tries to cherry-pick language
from a few opinions to support its position. It begins
with Slaughter-House, noting that one line in the
opinion discusses the police power and mentions
ferries among the things a state may regulate. Br.
Oppn 9. As discussed above, however, the Courtneys
do not dispute that a state may exercise its police
power to regulate ferries. Rather, they allege that a
law mak[ing] [state] consent a condition precedent
to the operation of a ferry on Lake Chelan goes
beyond a mere police regulation. City of Sault Ste.
Marie, 234 U.S. at 339, 340.
The WUTC next turns to the Slaughter-House
dissents, which do not even mention the right to use
navigable waters of the United States. They do,
however, mention ferries, and the WUTC tellingly
omits a large portion of the discussion. Justices
10
Bradley and Field noted that monopolies including
ferry monopolies were statutorily outlawed in
England at the time of our Founding. Slaughter-
House, 83 U.S. at 120 (Bradley, J., dissenting) (noting
England had abolished all monopolies except grants
for a term of years to the inventors of new manufac-
tures); id. at 104 (Field, J., dissenting). Justice
Bradley called this statutory proscription one of th[e]
constitutional landmarks of English liberty and
part of that inheritance which our fathers brought
with them. Id. at 120 (Bradley, J., dissenting). Alt-
hough the British Parliament, as well as our own
legislatures, had at times disregarded the statuto-
ry proscription by granting exclusive privileges for
erecting ferries, railroads, [and] markets, Justice
Bradley regarded such franchises as odious, wrong
in principle, and inimical to the just rights and
greatest good of the people. Id. at 120, 121. That is
hardly the endorsement the WUTC claims it is.
Finding no support in Slaughter-House, the
WUTC invokes a few other decisions from this Court
that say nothing regarding the right to use navigable
waters of the United States. First is Port Richmond &
Bergen Point Ferry Co. v. Board of Chosen Freehold-
ers, 234 U.S. 317 (1914), which concerned regulation
of ferry fares. This Court upheld the regulation but
expressly distinguished regulations aimed at rea-
sonable charges from prohibitory or discriminatory
requirements . . . imposed by the state, which may be
said to interfere with the guaranteed freedom of
11
interstate intercourse, or with constitutional rights of
property. Id. at 331 (emphasis added).
The WUTCs reliance on Starin v. Mayor of New
York, 115 U.S. 248 (1885), is equally misplaced. The
WUTC claims Starin held that whether [a] city had
[the] exclusive right to establish ferries over public
waters entirely within one state was a matter of
state, not federal, law. Br. Oppn 10. Yet no constitu-
tional question was even raised in Starin, and the
citys argument for an exclusive ferry right rested on
a charter that preceded the Constitution. Id. at 257.
The question, the Court explained, [wa]s as to the
extent of the ancient grant made to the city, not as to
the rights of the defendants in the navigation of the
waters of the United States irrespective of this
grant. Id. at 258. Moreover, the right conferred in
the grant was not over the establishment of ferries
generally, but over a single route, between specific
points on Manhattan and Staten Island. Citizens
were perfectly free to run ferries elsewhere. Id.
The same was true in Gloucester Ferry Co. v.
Pennsylvania, 114 U.S. 196 (1885), which held uncon-
stitutional a state tax on a ferry operating between
New Jersey and Pennsylvania. In its opinion, this
Court noted that Pennsylvania had not attempted to
establish[ ] and regulat[e] ferries across the Dela-
ware river. Id. at 217-18. Any one . . . is free, the
Court noted, to establish such ferries as he may
choose. Id. at 218.
12
Finding no support in this Courts post-
Slaughter-House jurisprudence, the WUTC looks
earlier to Conway v. Taylors Executor, 66 U.S. 603
(1861), and Mills v. County of St. Clair, 49 U.S. 569
(1850). The former was overruled in Gloucester Ferry,
which the WUTC neglects to mention. N.Y. Cent. &
Hudson River R.R. Co. v. Bd. of Chosen Freeholders,
227 U.S. 248, 261 (1913) (noting that the theories
advanced in Conway are directly contrary to the
ruling in . . . Gloucester Ferry, which is now conclu-
sive).
3
And both predate not only the Privileges or
Immunities Clause and Slaughter-House, but also
Huse, which held that navigable waters were to
remain highways equally open to all persons, with-
out preference to any, and that there could be no
exclusive use of them. 119 U.S. at 547, 548.
Getting no traction with this Courts decisions,
the WUTC turns to a 1934 Ninth Circuit decision and
a few earlier state-court decisions to argue that there
is no privilege to avoid state regulation of commer-
cial ferries. Br. Oppn 11. Again, the Courtneys do
not claim such a privilege only that Washingtons
exclusion of their ferry from Lake Chelan abridges
their right to use the navigable waters of the United
States. The WUTCs cases have nothing to say on
that point.


3
So, too, was Mills, insofar as it countenanced exclusive
ferry franchises between states.
13
VI. Amici Would Properly Tether The Privi-
leges Or Immunities Clause Not Open A
Pandoras Box
Finally, the WUTC baselessly accuses the
Courtneys and amici of having the avowed intent of
opening a Pandoras Box. Br. Oppn 16, 17. The arti-
cles the WUTC cites in support of its accusation
advocate an interpretation of the Privileges or Im-
munities Clause that is tethered to its history and
original public meaning. Effectuating the aims of
those who framed and ratified the clause which
emerged from a generation of struggle and through
the bloodshed of war, Br. Amici History and Law
Professors 20 is not opening a Pandoras Box. Nor,
for that matter, is clarifying the contours of a right
that this Court has already recognized, which is all
the Courtneys ask this Court to do.
--------------------------------- ---------------------------------

CONCLUSION
The petition should be granted.
Respectfully submitted,
MICHAEL E. BINDAS
Counsel of Record
INSTITUTE FOR JUSTICE
10500 N.E. 8th Street, Suite 1760
Bellevue, WA 98004
(425) 646-9300
mbindas@ij.org
14
WILLIAM H. MELLOR
ROBERT P. FROMMER
INSTITUTE FOR JUSTICE
901 North Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320
Counsel for Petitioners