Amicus Curiae Brief — James Courtney, et al., Petitioners v. David Danner, et al.

No. 20-361

IN THE

Supreme Court of the United States

————

JAMES COURTNEY AND CLIFFORD COURTNEY, ET AL.,

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

____________________________________________________________________________________________________

BRIEF FOR AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

————

CYNTHIA FLEMING CRAWFORD

Counsel of Record

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

November 2, 2020

i

Table of Contents

Table of Authorities................................................... iii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................ 1

Factual Background ....................................................3

Argument ..................................................................... 6

I. The Right to Access Navigable Waters is

Venerable and Enduring. ......................................6

A. Common Use of the Navigable Waters is an

Ancient Right Held in Trust by the Sovereign

for Benefit of the People. .....................................6

B. Citizens’ Rights to Navigation were Retained

by All States Under the Equal Footing

Doctrine Subject to the Limited Authority of

the Federal Government. .................................. 10

C. The Privileges or Immunities of Citizenship

are Rights that Comprised Access to Navigable

Waters at the Time the Fourteenth Amendment

was Ratified. ...................................................... 13

II. Neither Federal nor State Power to Regulate is

at Issue in This Case............................................ 15

A. The Undisputed Supremacy of the Commerce

Clause is not at Issue. ....................................... 15

B. States’ Traditional—But Limited—Power to

Improve Highways and Regulate Common

Carriers is not at Issue. .................................... 17

ii

III.The Slaughter-House Cases Explicitly Rejected

the Theory that Access to the Navigable Waters

of the United States is Dependent on State

Citizenship. .......................................................... 20

IV. The Ninth Circuit Erred in Conflating a Grant of

Authority with Retained Rights. ......................... 22

Conclusion ................................................................. 23

iii

Table of Authorities

Page(s)

Cases

In re Binghamton Bridge,

70 U.S. 51 (1865) .................................................. 20

Courtney v. Danner,

801 F. App’x. 558 (9th Cir. 2020)........................... 5

Gibbons v. Ogden,

22 U.S. 1 (1824) ........................................ 15, 16, 18

Gilman v. City of Phila.,

70 U.S. 713 (1865) .................................... 10, 16, 21

Huse v. Glover,

119 U.S. 543 (1886) ........................................ 12, 19

Ill. Cent. R.R. Co. v. Illinois,

146 U.S. 387 (1892) ........................................ 13, 17

Martin v. Waddell’s Lessee,

41 U.S. 367 (1842) .................................... 7, 8, 9, 10

McDonald v. City of Chicago, Ill.,

561 U.S. 742 (2010) ........................................ 14, 21

People v. N.Y. & Staten Island Ferry Co.,

68 N. Y. 71 (N.Y. 1877) ...................................... 7, 8

Pollard’s Lessee v. Hagan,

44 U.S. 212 (1845) ................................................ 12

iv

Slaughter-House Cases,

83 U.S. 36 (1872) ...................................... 21, 22, 23

Wabash, St. L. & P. R.R. Co. v. Illinois,

118 U.S. 557 (1886) .............................................. 19

Constitutions

U. S. Const. Amendment XIV ........................... passim

Statutes

Ordinance for the Government of the

Territory of the United States NorthWest of the River Ohio, § 14, art. 4 (July

13, 1787) ............................................................... 12

Rules

Supreme Court Rule 37.2............................................ 1

Other Authorities

Institutes of Justinian, 2.1.1–4 (A.D. 535) ................ 6

The Federalist No. 2, (John Jay) .............................. 11

Chelan, Washington, Wikipedia,

https://bit.ly/3mubpqk (last visited Oct.

29, 2020) ................................................................. 3

The Dissent of the Minority of the

Convention of Pennsylvania, Prop. No. 8

(December 18, 1787) ............................................ 11

v

Gordon Slynn Slynn of Hadley, Mads

Tønnesson Andenæs, Duncan Fairgrieve,

Judicial Review in International

Perspective, Kluwer Law International

(2000) .................................................................... 22

Lake Chelan Dam, Wikipedia,

https://bit.ly/2J87pO5 (last visited Oct.

29, 2020) ................................................................. 3

Lake Chelan, Wikipedia,

https://bit.ly/3e6Dy3U (last visited Oct.

29, 2020) ................................................................. 3

Magna Carta 23–33 (1215) ........................................ 7

Petition for Writ of Certiorari, Courtney v.

Danner,

No. 20-361 .............................................................. 3

1 William Blackstone, Commentaries (1753) ........... 14

World Heritage Encyclopedia, available at:

https://bit.ly/3osBurR ......................................... 22

1

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONERS

Pursuant to Supreme Court Rule 37.2, Americans

for Prosperity Foundation (“AFPF”) respectfully

submits this amicus curiae brief in support of

Petitioners on its own behalf.1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit

organization committed to educating and training

Americans to be courageous advocates for the ideas,

principles, and policies of a free and open society. As

part of this mission, it appears as amicus curiae before

federal and state courts. AFPF works toward these

goals, in part, by defending the individual rights and

economic freedoms that are essential to ensuring that

all members of society have an equal opportunity to

thrive. As part of this mission, it appears as an amicus

curiae before state and federal courts.

SUMMARY OF ARGUMENT

This case turns on whether a state may dispossess

citizens of ancient rights that are protected by

citizenship in the nation as a whole—here, the right

to use the navigable waterways—which was a

common right held in trust for benefit of the people by

the sovereign well before the allocation of regulatory

1

All parties have consented to the filing of this brief after

receiving timely notice. Amicus states that no counsel for a party

authored this brief in whole or in part and that no person other

than amicus or its counsel made any monetary contributions to

fund the preparation or submission of this brief.

2

power between the federal government and the states

was memorialized in the Constitution.

It is not a dispute between a state and the federal

government and does not turn on whether Congress

has constitutional authority via the Commerce Clause

to supersede state police power. It is simply a dispute

between individuals exercising their rights as citizens

and a state’s desire to limit competition.

Although the issues are rendered more complex by

the interplay of other traditional doctrines, such as

government authority to regulate common carriers

and improve public highways; those intersecting

doctrines are not so complex or unbounded that it is

impossible to tell where the authority of the state

must yield to the rights of the citizen.

The questions presented here are important

because the rights of citizenship should not be

nullified through conflating grants of power to the

government with constraints on rights of individuals.

This dichotomy is fundamental to our constitutional

structure and to a free and prosperous society.

The Ninth Circuit missed the boat when it looked

to the Commerce Clause as a limitation on citizens’

rights to use the navigable waters of the United

States. It should have looked to the Privileges or

Immunities Clause of the Fourteenth Amendment—

which, though largely displaced by the Due Process

Clause, retains its vigor regarding certain rights

inherent to citizenship in the country as a whole—as

the vehicle for incorporating fundamental rights

against the states.

This Court should protect the right of the people to

use the nations’ navigable waterways and unwind the

3

conflation of limits on congressional power and

protection of individual rights wrought by the Ninth

Circuit.

FACTUAL BACKGROUND

Lake Chelan is a “navigable water of the United

States” as designated by the Corps of Engineers

located in Washington State. Petition for Writ of

Certiorari (“Pet.”) at 5–6, Courtney v. Danner, No. 20361). The Lake Chelan Dam, which forms the

southern boundary of the lake, has been added to the

National Register of Historic Places.2 The northern

end of the lake is located in the Lake Chelan National

Recreation Area (“National Recreation Area”).

The lake is 55 miles long, narrow, and the third

deepest lake in the United States.3 Pet. at 5. The city

of Chelan, located at the southern end of the lake near

the dam, is accessible by state highway.4 The

unincorporated community of Stehekin, located at the

northwest end of the lake, is in the National

Recreation Area. Pet. at 5–6. No roads lead to

Stehekin or the National Recreation Area, which are

accessible only by boat, plane, or foot. Pet. at 6.

2 A dam built to raise the level of Lake Chelan, providing water

for south Chelan real estate and navigation to the city of Chelan,

was completed 1892. The dam has been rebuilt several times.

The current dam, which includes a hydroelectric plant, was

completed in 1927 and added to the National Register of Historic

Places

in

1988.

Lake

Chelan

Dam,

Wikipedia,

https://bit.ly/2J87pO5 (last visited Oct. 29, 2020).

Lake Chelan, Wikipedia, https://bit.ly/3e6Dy3U (last visited

Oct. 29, 2020).

3

Chelan, Washington, Wikipedia, https://bit.ly/3mubpqk (last

visited Oct. 29, 2020).

4

4

In 1927, Washington began prohibiting ferry

service on Lake Chelan without first obtaining a

certificate of “public convenience and necessity”

(“certificate”) it. Pet. at 6–7. Since that time only two

certificates have been issued. Pet. at 8. New

applicants for a certificate may be rejected if an

existing certificate holder files a protest and the

applicant is unable to prove that the existing

certificate holder has failed to provide “reasonable

and adequate service.” Pet. at 7–8.

Petitioners Jim and Cliff Courtney live in

Stehekin, where they operate several family-owned

businesses, including Stehekin Valley Ranch: a ranch

with cabins and a lodge house. Pet. at 8. Since 1997,

they have tried to obtain authority to provide

alternative boat transportation for customers

attempting to reach their businesses in Stehekin—

roughly 50 miles by water from the state highways.

Pet. at 9. First, Jim applied for a certificate to operate

a Stehekin-based ferry. Pet. at 9. That effort was

unsuccessful because he was unable to prove that the

existing Lake Chelan Boat Company failed to provide

“reasonable and adequate service” Pet. at 9.

Abandoning the ferry approach, Jim then applied

to the U.S. Forest Service for a special-use permit to

use the federally-owned docks on the lake in

conjunction with a proposed on-call boat service. The

Forest Service agreed—if the Washington Utilities

and Transportation Commission would provide an

opinion that no certificate was needed for the

proposed service. This, the Commission declined to do.

Pet. at 9.

Cliff then proposed to the Commission to either: (1)

charter a boat for customers of Courtney-family

5

businesses to provide transportation as one of the

guests’ options; or (2) purchase a boat to carry his own

customers. The Commission responded that both

options would require a certificate. Pet. at 10.

The Courtneys filed suit, challenging the

requirement for a certificate to provide ferry service

on Lake Chelan; and challenging the requirement for

a certificate to provide non-ferry transportation on the

lake for their own customers, citing their right to use

the navigable waters of the United States as protected

by the Privileges or Immunities Clause of the

Fourteenth Amendment. Pet. at 10–11. After a twodecade journey between the courts and the

Commission that resulted in the dismissal of the

ferry-certificate claim, the Ninth Circuit affirmed the

dismissal of the non-ferry-certificate claim on the

basis that the federal government—which was not a

party to the case—had no authority over the lake and

therefore the Commission’s exclusion of the Courtneys

from operating a boat service on Lake Chelan “does

not affect the Courtneys’ privileges or immunities as

citizens of the United States”. Pet. at 11–14;

Courtney v. Danner, 801 F. App’x. 558, 560 (9th Cir.

2020).

Thus, with one stroke of the pen, the Court of

Appeals inverted a personal right that protects

against the power of government into an appendage of

a limited grant of authority to the government.

6

ARGUMENT

I.

The Right to Access Navigable Waters is

Venerable and Enduring.

By the law of nature these things are common to

mankind—the air, running water, the sea and

consequently the shores of the sea.

—Justinian5

A. Common Use of the Navigable Waters is

an Ancient Right Held in Trust by the

Sovereign for Benefit of the People.

From ancient times the common law has

recognized the right of the people to access the sea and

navigable rivers. This right was held in trust by the

sovereign for benefit of the people. While rights to

ownership of adjacent real property and regulation of

certain nautical activities are sometimes in tension

with this right, the duty of the sovereign to preserve

the people’s right to use the water is unwavering. This

proposition is not exotic, having a pedigree in the

5 J. Inst. 2.1.1–4 (A.D. 535), available at https://bit.ly/3oGRWEM

(“1. By the law of nature these things are common to mankind—

the air, running water, the sea, and consequently the shores of

the sea. No one, therefore, is forbidden to approach the seashore,

provided that he respects habitationes, monuments, and

buildings which are not, like the sea, subject only to the law of

nations. 2. All rivers and ports are public; hence the right of

fishing in a port, or in rivers, is common to all men. 3. The

seashore extends as far as the greatest winter flood runs up. 4.

The public use of the banks of a river is part of the law of nations,

just as is that of the river itself. All persons, therefore, are as

much at liberty to bring their vessels to the bank, to fasten ropes

to the trees growing there, and to place any part of their cargo

there, as to navigate the river itself.”)

7

common law reaching at least as far back as the early

Thirteenth Century.6

In England, “‘title to lands under tide waters . . .

were by the common law deemed to be vested in the

king as a public trust, to subserve and protect the

public right to use them as common highways for

commerce, trade, and intercourse.” People v. N.Y. &

Staten Island Ferry Co., 68 N. Y. 71, 76 (N.Y. 1877).

Lord Hale, regarding the “common people of

England,” recognized their “liberty of fishing in the

sea, or creeks or arms thereof, as a public common of

piscary.” Martin v. Waddell’s Lessee, 41 U.S. 367, 412

(1842). This right was “paramount” even to the king’s

right to grant the soil under the water, so that “[i]n

every such grant [by the king] there was an implied

reservation of the public right, and so far as it

assumed to interfere with it, or to confer a right to

impede or obstruct navigation, or to make an

exclusive appropriation of the use of navigable waters,

the grant was void.” 68 N. Y. at 76.

This longstanding principle of the common law is

not a mere preference or historical oddity; but is based

on the most fundamental human needs:

The sea and navigable rivers are natural

highways, and any obstruction to the

common

right,

or

exclusive

appropriation of their use, is injurious to

commerce, and, if permitted at the will of

the sovereign, would be very likely to end

6 See Magna Carta 23–33 (1215).

8

in materially crippling, if not destroying,

it.

The laws of most nations have

sedulously guarded the public use of

navigable waters within their limits

against infringement, subjecting it only

to such regulation by the state, in the

interest of the public, as is deemed

consistent with the preservation of the

public right.

N.Y. & Staten Island Ferry Co., 68 N. Y. at 77.

This ancient right was carried to America by the

English colonists, who, as subjects of the British

crown, retained their right to rely on the sovereign to

hold in trust for them access to the navigable waters.

In Waddell’s Lessee, this Court held that the public

right to access the navigable waters precluded the

ejection of oyster fisheries from a tidal river of New

Jersey when ownership of the land beneath the

navigable water was asserted pursuant to the

charters Charles II gave to his brother the Duke of

York in 1664 and 1674, which authorized the Duke to

establish a colony in America. Waddell’s Lessee, 41

U.S. at 367.

In protecting the public’s rights, the Court relied

on a series of findings and precepts. First, that the

“English possessions in America were not claimed by

right of conquest, but by right of discovery,” and thus,

any government established there was not intended

for a conquered people, but “was held by the king in

his public and regal character, as the representative

9

of the nation, and in trust for them.” Id. at 409.7

Accordingly, in granting the charters, the king could

only grant those privileges and property that he, as

sovereign, could alienate. Any grant in excess of that

authority would be void. Id. at 411.

Because the charters conveyed the powers of

government, subject to the condition that “the

statutes, ordinances, and proceedings established by

his authority, should not be contrary to, but as nearly

as might be agreeable to, the laws, statutes and

government of the realm of England,” the Duke was

bound by the duty “to stand in the place of the king,

and administer the government according to the

principles of the British constitution.” Id. at 408, 412

(cleaned up). Later transfers from the Duke to

intermediary proprietors, and then back to Queen

Anne in 1702, included the same jura regalia

associated with the territory. Id. at 416.

These charters, the Court found, were consistent

with the “various other charters for large territories

on the Atlantic cost [sic], [which] were granted, by

different monarchs . . . to different persons, for the

purposes of settlement and colonization, in which the

powers of government were united with the grant of

territory.” Id. at 414. None of these charters were

known to have included materially different

treatment of “bays, rivers and arms of the sea, and the

7 “The discoveries made by persons acting under the authority of

the government were for the benefit of the nation; and the crown,

according to the principles of the British constitution, was the

proper organ to dispose of the public domains; and upon these

principles rest the various charters and grants of territory made

on this continent.” Waddell’s Lessee, 41 U.S. at 409.

10

soils under them, [in their conveyance] to the

grantees.” Id.

This then, was the state of the law when the

colonists, “took possession of the reins of government,

and took into their own hands the powers of

sovereignty, the prerogatives and regalities which

before belonged either to the crown or the

parliament.” Id. at 416.

B. Citizens’ Rights to Navigation were

Retained by All States Under the Equal

Footing Doctrine Subject to the Limited

Authority of the Federal Government.

“When the Revolution took place the people of each

State became themselves sovereign, and in that

character hold the absolute right to all their navigable

waters and the soil under them for their own common

use, subject only to the rights since surrendered by the

Constitution to the General Government.” Gilman v.

City of Phila., 70 U.S. 713, 726 (1865) (cleaned up).

Although each state was a sovereign entity, the right

of the people to freely access the navigable waters of

the entire country was presumed—and jealously

guarded.

John Jay, in Federalist No. 2, noted the

importance of the rivers that tied the country

together:

It has often given me pleasure to observe

that . . . Providence has in a particular

manner blessed [independent America]

with a variety of soils and productions,

and watered it with innumerable

streams,

for

the

delight

and

11

accommodation of its inhabitants. A

succession of navigable waters forms a

kind of chain round its borders, as if to

bind it together; while the most noble

rivers in the world, running at

convenient distances, present them with

highways for the easy communication of

friendly

aids

and

the

mutual

transportation and exchange of their

various commodities.”8

Although no express provision was included in the

Constitution to memorialize this element of the

common law, the former colonists’ understanding of

their rights as citizens of their newly-formed nation

was manifest in other writings, such as the

declaration of rights the Pennsylvania Minority

proposed be annexed to the Constitution:

The inhabitants of the several states

shall have liberty to fowl and hunt in

seasonable times, on the lands they hold,

and on all other lands in the United

States not enclosed, and in like manner

to fish in all navigable waters, and others

not private property, without being

restrained therein by any laws to be

passed by the legislature of the United

States.9

The Federalist No.

https://bit.ly/2Tqy8Y1.

8

2,

(John

Jay),

available

at

9 The Dissent of the Minority of the Convention of Pennsylvania,

Prop.

No.

8

(December

https://bit.ly/31IgfZp.

18,

1787),

available

at

12

The Northwest Ordinance, enacted by Congress

under the Articles of Confederation, likewise

preserved the freedom of the navigable waterways:

The navigable waters leading into the

Mississippi and St. Lawrence, and the

carrying places between the same, shall

be common highways and forever free, as

well to the inhabitants of the said

territory as to the citizens of the United

States, and those of any other States that

may be admitted into the confederacy,

without any tax, impost, or duty

therefor.10

The Northwest Ordinance also provided for

admission of new states under the Equal Footing

Doctrine, thus ensuring that citizens of the new states

would maintain the same freedoms and rights as

citizens of the original states.11

The relevance of the Equal Footing Doctrine to

navigable waters was confirmed by this Court in Huse

v. Glover, 119 U.S. 543 (1886) (regarding 1818

admission of Illinois). Equal Footing means that upon

admission to the Union, the state becomes “entitled to

and possessed of all the rights of dominion and

sovereignty which belonged to the original states”

including the “same powers over rivers within her

limits.” Id. at 546; see also Pollard’s Lessee v. Hagan,

44 U.S. 212 (1845) (regarding 1819 admission of

Alabama with similar rights regarding navigable

10 Ordinance for the Government of the Territory of the United

States North-West of the River Ohio, § 14, art. 4 (July 13, 1787),

available at https://bit.ly/37JXsAM.

11 Id. at § 14, art. 5.

13

waters). These powers were not unlimited, but were

“subject to the common law,” and the Constitution. Id.

at 229–30.

The public being interested in the use of

such waters, the possession by private

individuals of lands under them could

not be permitted except by license of the

crown, which could alone exercise such

dominion over the waters as would

insure freedom in their use so far as

consistent with the public interest. The

doctrine is founded upon the necessity of

preserving to the public the use of

navigable

waters

from

private

interruption and encroachment,—a

reason as applicable to navigable fresh

waters as to waters moved by the tide.

Ill. Cent. R.R. Co. v. Illinois, 146 U.S. 387, 436–37

(1892).

Accordingly, the states took title to their navigable

waters, whether tidal or wholly inland, subject to the

same public rights that applied to the original states

and the colonies before them.

C. The Privileges or Immunities of

Citizenship are Rights that Comprised

Access to Navigable Waters at the Time

the

Fourteenth

Amendment

was

Ratified.

The rights described above were extant when the

Fourteenth Amendment was ratified and perforce

among the privileges or immunities described therein.

14

The Fourteenth Amendment provides that “[n]o

State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States;” which, ‘[o]n its face . . . appears to

grant the persons just made United States citizens a

certain collection of rights—i.e., privileges or

immunities—attributable to that status.” McDonald

v. City of Chicago, Ill., 561 U.S. 742, 808 (2010)

(Thomas, J., concurring). “In interpreting this

language, it is important to recall that constitutional

provisions are written to be understood by the voters.”

Id. at 813. “Thus, the objective of this inquiry is to

discern what ordinary citizens at the time of

ratification would have understood the Privileges or

Immunities Clause to mean.” Id. (cleaned up).

The terms “privileges” and “immunities” have been

used interchangeably with “rights” since the time of

Blackstone. 1 William Blackstone, Commentaries

*125–29 (1753) (describing the “rights and liberties” of

Englishmen as those “private immunities . . residuum

of natural liberty” and “civil privileges, which society

hath engaged to provide, in lieu of the natural

liberties so given up by individuals”). This Eighteenth

Century distillation of rights under English law

encompasses the time of the founding and thus, the

founding public likely understood “privileges and

immunities” as equivalent to “rights.” Similarly,

contemporaneous dictionary definitions confirm that

“[a]t the time of Reconstruction, the terms ‘privileges’

and ‘immunities’ had an established meaning as

synonyms for ‘rights.’” McDonald, 561 U.S. at 813

(Thomas, J. concurring) (citing 2 N. Webster, An

American Dictionary of the English Language 1039

(C. Goodrich & N. Porter rev. 1865)).

15

Accordingly, the privileges and immunities of

Englishmen, as inherited and preserved for American

citizens by the states, would have been understood by

both the founding and the reconstruction publics as

including use of the nation’s navigable waters. And

thus, such right would have been comprised by the

Fourteenth Amendment as ratified. It should come as

no surprise then, that this right is among the few

privileges or immunities that the Court has expressly

identified as encompassed by the term.

II.

Neither Federal nor State Power to

Regulate is at Issue in This Case.

All experience shows, that the same measures, or

measures scarcely distinguishable from each other,

may flow from distinct powers; but this does not prove

that the powers themselves are identical.

Gibbons v. Ogden, 22 U.S. 1, 78 (1824).

A. The Undisputed Supremacy of

Commerce Clause is not at Issue.

the

Whether the federal government can regulate

navigation was settled in Gibbons v. Ogden, which

resolved a conflict between New York State law,

granting exclusive navigation rights for steamboats

on waters within the State’s jurisdiction, and an act of

Congress “for enrolling and licensing ships and

vessels to be employed in the coasting trade and

fisheries, and for regulating the same.” Id. at 1. The

Court made three essential holdings: First, that the

Commerce Clause “comprehends, and has been

always understood to comprehend, navigation within

its meaning.” Id. at 74. Second, that the geographic

16

limitations of “commerce among the states,” was

“properly . . . restricted to that commerce which

concerns more States than one.” Id. And third, that

due to the “direct collision” between the New York law

and an act of Congress, the extent of Congress’s

authority under the Commerce Clause was necessary

to the Court’s decision that the New York law must

yield. Id. at 82, 86.

The narrow question of whether the Commerce

Clause applies to navigation on waters wholly within

the boundaries of a state was not squarely addressed.

However, the Court recognized that the “deep streams

which penetrate our country in every direction, pass

through the interior of almost every State in the

Union, and furnish the means of exercising this right”

and thus, the “power of Congress, . . . comprehends

navigation, within the limits of every State in the

Union; so far as that navigation may be, in any

manner, connected with ‘commerce with foreign

nations, or among the several States, or with the

Indian tribes.’” Id. at 74–75. See also Gilman, 70 U.S.

at 713, 740 (Clifford, J., dissenting) (“Public navigable

rivers, whose waters fall into the sea, are rivers of the

United States in the sense of the law of nations and of

the Constitution of the United States. They are so

treated by all writers upon public law, and there is no

well-considered decision of the Federal courts which

does not treat them in the same way.”).

The geographic reach of the Commerce Clause is

not necessary to the decision here either because the

rights the Courtneys seek to vindicate, unlike the

conflicting licensing rights in Ogden, are not

dependent on an act of Congress. Whether the federal

government could regulate commerce on Lake Chelan

17

as a water of the United States is simply irrelevant

because it did not and the Courtneys are not relying

on any congressional act to justify their claim.

B. States’

Traditional—But

Limited—

Power to Improve Highways and

Regulate Common Carriers is not at

Issue.

Within their borders, and “subject always to the

paramount right of congress to control their

navigation so far as may be necessary for the

regulation of commerce with foreign nations and

among the states,” states have authority to regulate

the water and the land beneath the water. Illinois

Cent. R.R. Co., 146 U.S. at 435.

But this power is bound by the states’ duty to

preserve the freedom of navigation:

the state holds title to soils under tide

water, by the common law, . . . and that

title necessarily carries with it control

over the waters above them, whenever

the lands are subjected to use. But it is a

title different in character from that

which the state holds in lands intended

for sale. . . . It is a title held in trust for

the people of the state, that they may

enjoy the navigation of the waters, carry

on commerce over them, and have liberty

of fishing therein, freed from the

obstruction or interference of private

parties.

Id. at 452, (emphasis added).

18

Thus, cases that have reached this Court

regarding states’ rights to regulate ferries, bridges,

and locks demonstrate two common themes: (1) states

have authority to regulate ferries, bridges, and locks

within their jurisdiction to the extent that regulation

does not conflict with federal law; and (2) that

authority tends toward improving and expanding

access to the navigable waters—not excluding access,

even where there is a trade-off between modes of

access. In short, authority to regulate is authority to

improve, not abolish.

The state’s discretion in improving waterways was

examined in Gilman v. City of Philadelphia, where

the State of Pennsylvania authorized construction of

a bridge across the Schuylkill River. 70 U.S. at 713–

14. The plaintiff was the owner of coal wharves

located between the existing upriver bridge and the

proposed downriver bridge. The new construction

would negatively affect his business because the

height of the new bridge was not sufficient to allow

masted vessels to pass through and reach his

wharves. Id. at 719–20.

The case was framed as a violation of the

Commerce Clause. Id. at 724. But that issue was

disposed because, unlike in Ogden, the plaintiff was

not the owner of a licensed coasting vessel and thus

could not rely on the congressional licensing scheme

as the basis for an alleged conflict, id. at 719; nor had

Congress passed a law forbidding obstruction of the

river. Id. at 729.

Although the Court acknowledged that “the river

from its mouth to and beyond the port of Philadelphia

is and has been considered as an ancient, navigable,

19

public river and common highway, free to be used and

navigated by all citizens of the United States,” the

Court emphasized the volume of commerce on the

river, and the fact that the obstruction was only

partial. Id. at 717, 719. In the end, the means of

enhancing transportation was left to the state because

“[b]ridges, turnpikes, streets, and railroads, are

means of commercial transportation as well as

navigable waters, and the commerce which passes

over a bridge may be much greater than that which

will ever be transported on the water which it

obstructs.” Id. at 713. Accordingly, when

improvements to transportation involve multiple

means of conveyance, “it is for the municipal power to

weigh and balance against each other the

considerations which belong to the subject-the

obstruction of navigation on the one hand, and the

advantage to commerce on the other-and to decide

which shall be preferred.” Id.

This proposition, which tends toward the overall

enhancement of public access to highways—whether

on water or on land—is consistent with the traditional

duty of the sovereign to protect public access. Accord

Wabash, St. L. & P. R.R. Co. v. Illinois, 118 U.S. 557,

583–84 (1886) (“The doctrines announced in these

cases apply not only to dams in and bridges over

navigable streams, but to all structures and

appliances in a state which may incidentally interfere

with commerce, or which may be erected or created for

the furtherance of commerce, whether by water or by

land.”); Huse, 119 U.S. at 549 (upholding measures for

improving the navigation of Illinois river through

construction of a lock and dam because, “[h]ow the

highways of a state, whether on land or by water, shall

20

be best improved for the public good, is a matter for

state determination.”). Improved access is the theme

and in no instance has the complainant been

individually excluded by the state from accessing the

navigable waters.

Regulation of ferries is similar and may be

undertaken by the state relative to common carriers

so long as that regulation does not exclude citizens’

access to go about their own business; for, “it is a wellsettled principle of common law that no man may set

up a ferry for all passengers, without prescription . . .

He may make a ferry for his own use, or the use of his

family, but not for the common use of all the king's

subjects passing that way.” In re Binghamton Bridge,

70 U.S. 51, 81 (1865).

Thus, once the Courtneys proposed private

transportation for their own customers, any state

interest in general regulation of ferry services gave

way to the duty to preserve access to the lake.

Abolishing private navigation on an indisputably

navigable water goes beyond regulating services and

trespasses on the individual citizen’s right to access

the waters of the United States.

III.

The Slaughter-House Cases Explicitly

Rejected the Theory that Access to the

Navigable Waters of the United States is

Dependent on State Citizenship.

Against the backdrop of the ancient common right

to access the navigable waters and the duty of

government to preserve that right, the only unsettled

issue when the Slaughter-House Cases were decided

was whether the right to access navigable waters was

21

an aggregated state-based common law right or truly

a national right that applied to all citizens via the

Fourteenth Amendment. The Court answered that it

was the latter.

The Slaughter-House Cases distinguish privileges

of national citizenship from rights traditionally

protected by the states to conclude that privileges of

national citizenship are protected by the Fourteenth

Amendment and privileges of state citizenship are

protected by the state—as they were before the

Fourteenth Amendment. Slaughter-House Cases, 83

U.S. 36, 75 (1872); see also McDonald, 561 U.S. at

754–55.

It would appear based its long history that access

to the navigable waters of a state would be one such

right of state citizenship. But the Court concluded

otherwise, stating that “[t]he right to use the

navigable waters of the United States, however they

may penetrate the territory of the several States,” is

“dependent upon citizenship of the United States, and

not citizenship of a State.” Slaughter-House Cases, 83

U.S. at 79–80. In reaching this conclusion, the Court

distilled the fundamental premise of previous cases—

that access to the waters of the United States is a

right of all United States citizens, regardless of state.

E.g., Gilman, 70 U.S. at 717 (“the river . . . is and has

been considered as an ancient, navigable, public river

and common highway, free to be used and navigated

by all citizens of the United States.”). Thus, in the

Slaughter-House Cases, what had been presumed

became explicit, and the Fourteenth Amendment

rendered unassailable under constitutional law the

previous common law right of access to the navigable

waters.

22

IV.

The Ninth Circuit Erred in Conflating a

Grant of Authority with Retained Rights.

Everything which is not forbidden is allowed" is a

constitutional principle of English law—an essential

freedom of the ordinary citizen. The converse

principle—"everything which is not allowed is

forbidden"—applies to public authorities, whose

actions are limited to the powers explicitly granted to

them by law.12

The Constitution includes limited grants of

authority to the government and presupposes broad

individual rights, as is proper for a government that

is a creature of the people and has only those powers

delegated to it. The Ninth Circuit looked through the

lens from the wrong side and got this relationship

backwards by holding that the right to use the

navigable waters of the United States is dependent on

Congress’s Commerce power .

By making the Commerce Clause the font of

individual rights, the Court of Appeals set

constitutionally constrained congressional authority

as the outside boundary of citizens’ rights. The citizencreator was thus relegated to being less than its own

creation.

Attempting to apply that approach to the other

rights of citizenship identified in the Slaughter-House

Cases makes the error clear. For example, the right to

peaceably assemble and petition for redress of

12 World Heritage Encyclopedia, citing Gordon Slynn Slynn of

Hadley, Mads Tønnesson Andenæs, Duncan Fairgrieve , Judicial

Review in International Perspective, Kluwer Law International,

p. 256 (2000), available at:.https://bit.ly/3osBurR

23

grievances that is guaranteed by the Constitution is

listed as a right of national citizenship. SlaughterHouse Cases, 83 U.S. at 79. It would be absurd to

claim that this right does not exist unless and until

Congress acts to animate it. Moreover, if Congress

limited that right, it would bear the burden of

justifying any infringement.

Similarly, the Slaughter-House Cases identify a

privilege expressly conferred by the Fourteenth

Amendment: “that a citizen of the United States can,

of his own volition, become a citizen of any State of the

Union by a bonâ fide residence therein, with the same

rights as other citizens of that State.” Id. at 80. There

is no gateway action by Congress required before the

citizen’s right to settle in a state may be exercised—

even though the act of moving house may well be as

commercial in nature as navigating a lake.

It defies logic and contradicts the underpinnings of

our constitutional system to declare that the rights of

citizenship have no force unless Congress has

exercised its own limited authority; and it was error

by the Ninth Circuit to diminish the rights of

citizenship to less than the rights of Congress.

CONCLUSION

The Court should grant the Petition.

Respectfully submitted,

CYNTHIA FLEMING CRAWFORD

Counsel of Record

AMERICANS FOR PROSPERITY

FOUNDATION

1310 N. Courthouse Road, Ste. 700

24

Arlington, VA 22201

(571) 329-2227

ccrawford@afphq.org

Counsel for Amicus Curiae

November 2, 2020