Proponents of the Hawaii Invasive Species Assessment should monitor recent developments in tonnage and commerce clause litigation. The Second Circuit Court of Appeals recently struck down a fee on passengers using an interstate ferry. It cited the commerce and tonnage clauses as the basis for striking down the local regulation.
Side note: Thanks to my partner, and fellow blogger, Robert Thomas for passing this case to me. I'm sitting at Lake Stevens, Washington enjoying the beautiful Seattle weather and the sights, but when a federal appeals court hands down a decision on a pretty arcane maritime law issue, even one based on an even more obscure provision of the Constitution, it warrants a quick post.
A duty of tonnage is presently before the U.S. Supreme Court in the Polar Tankers case (here), but the Court of Appeals for the Second Circuit had occasion to review a fee imposed on ferry-borne passengers in the case of Bridgeport and Port Jefferson Steamship Company v. Bridgeport Port Authority.
In this case, the operator of a passenger ferry that runs between New York and Connecticut brought suit to enjoin the collection of a fee imposed on passengers who use the Port Authority's terminal to embark or disembark. The fee had been in place since 1993 and comprises the significant bulk of the Port Authority's operating budget.
The passenger ferry operator challenged the passenger fee on two bases: commerce clause and tonnage clause.
As to the commerce clause challenge, the operator asserted that the while the fee was not discriminatory between the citizens of different states, because it was a fee that touched interstate commerce, it had to be proportionally related to a benefit conferred upon the fee-payer. In this case, the district court reviewed, line by line, the expenditures of the Port Authority and found that the passenger fee was not proportional to the benefit to the passengers noting unrelated Port Authority expenditures on roads, development, even a foreign trade zone.
As to the tonnage clause challenge, the operator asserted that the fees violated the tonnage clause of the Constitution and were similarly defective. The Court was brief in this part of the opinion, and on its face, I don't see the passenger fee as an explicit duty of tonnage which brings to mind local taxes on the weight of imports or exports. But, the Court, relying on earlier precedent, focused on the disparate impact between passengers and other users of the terminal. It found:
In addition, the passenger fee offends the Tonnage Clause because the BPA’s non-ferry services are not available to ferry passengers; they were “completely unrelated and unavailable to the fee payers.” Charging the fee-payers for services that are not available to them is impermissible under the Tonnage Clause, even if not all fee payers actually use them.
The Polar Tankers case should not directly inform the Bridgeport case because the governmental fees are so different. In the Polar Tankers case, the municipality was assessing fees based on the resale value of the vessel. In this case, the fee was per person.
Certainly, Hawaii's invasive species assessment fee runs more afoul of the tonnage clause than these fees do (my post on that subject here).
