Petition for Writ of Certiorari — A. G. G. Enterprises, Inc. v. Washington County

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Supreme Court, US.

1) FILEO

01180 5 JUN -6 2002

No.

OFFIGE OF THE CLERIC

IN THE

Supreme Court of the United States

OCTOBER TERM, 2001

A.G.G. Enterprises, Inc.,

Petitioner

v.

Washington County and City of Beaverton,

Respondents

Pride Disposal Co.; Swatco Sanitary Service Inc.; United

Disposal Service Inc.; Hillsboro Garbage Disposal Inc.;

Washington County Drop Box Service Inc.; West Beaverton

Sanitary Service Inc.; Aloha Garbage & Recycling Inc.; Don’s

Garbage Service Inc; Garbarino Disposal & Recycling Service

Inc.; Oregon Refuse & Recycling Association; .

United States of America,

Intervenors

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Lawrence R. Davidson

Counsel of Record and for Petitioner

1850 Benjamin Franklin Plaza

One S.W. Columbia Sireet

Portland, Oregon 97258

(503)-229-0199

ALTREC ET AAT TARA! RSE RY AECL NE IPERS ORIN SS UREN TNE

2 O

In their normal course of business, commercial

entities such as manufacturers, construction contractors and

a myriad of various other businesses discard materials

which can be recycled and reused.

QUESTIONS PRESENTED

1. Whether recyclable materials collected from

commercial and industrial accounts, commingled with

nonrecyclable materials and transported to recycling facilities,

are property within the meaning of 49 U.S.C. § 14501(c)(1).

2. If the commodities described in Question 1

constitute property, whether the states are prohibited by 49

U.S.C. § 14501(c)(1) from regulating their transportation.

il

LIST OF PARTIES

The parties to the proceeding below are as follows:

Lawrence R. Davidson

1850 Benjamin Franklin Plaza

One S.W. Columbia Street

Portland, Oregon 97221

Telephone: 503-229-0199

Attorney for Petitioner

A.G.G. Enterprises, Inc.

Dan R. Olsen

Washington County Counsel

155 N. Ist Avenue

340 Public Services Bldg.

Hillsboro, OR 97124

Telephone: 503-846-8747

Attorney for Respondent

Washington County, Oregon

William J. Scheiderich

City Attorney’s Office

P.O. Box 4755

Beaverton, Oregon 97076

Telephone: 503-526-2215

Attorney for Respondent :

City of Beaverton, Oregon

ili

Barnes H. Ellis

James N. Westwood

Stephen a. Redshaw

STOEL RIVES, LLP

Suite 2600

900 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: 503-224-3380

Attorneys for Intervenor

Oregon Refuse & Recycling Association

Edward J. Sullivan

James R. Herald

Preston Gates & Ellis, LLP

Suite 1400

222 S.W. Columbia Street

Portland, Oregon 97201-3200

Telephone: 503-228-3200

Attorneys for Intervenors:

Pride Disposal Co.

Swatco Sanitary Service, Inc.

United Disposal Service, Inc.

Hillsboro Garbage Disposal, Inc.

Washington County Drop Box Service, Inc.

West Beaverton Sanitary Service, Inc.

Aloha Garbage & Recycling, Inc.

Garbarino Disposal & Recycling Service, Inc.

IV

G. Frank Hammond

Cable Huston Benedict Haagensen & Lloyd, LLP

Suite 2000

1001 S.W. Fifth Avenue

Portland, Oregon 97204

Telephone: 503-224-3092

Attorneys for Intervenor

Don’s Garbage Service, Inc.(Waste Management, Inc)

Mark B. Stern |

Dana J. Martin

U.S. Attorney

Civil Division, Room 9108

Department of Justice

601 D Street, N.W.

Washington, D.C. 20530-0001

Telephone: 202-514-5089

SN Eat Din craee

Attorneys for Intervenor

United States of America

Rule 29.1 Listing

A.G.G. Enterprises, Inc. has no_ parent

Bib aids see

companies nor non-wholly owned subsidiaries.

Vv

TABLE OF CONTENTS

Page

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TABLE GF CONTENT cccosnstesssssessinsiatssisnascsssanaasenstavens V

TABLE GE AUTHOR Ge wrcessinsintncniascnsnasscrarssstasanesiens vii

PETITION FOR WRIT OF CERTIORARI ...........cessceeeees l

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FETC TRIN ncxsosesisnistinssatniaisisniiianisnninsstiianiadisddadaaiasiioans 2

STATUTORY PROVISION INVOLVED.......0..... cee ssoed

STATEMENT OF THEE CASE sicsrissacsnissnnsnstnsnncicebsaninanons 3

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Pes TNO ssccscnicsctniisittcstnipaniniannitinnbaiecaniinn 8

REASONS FOR GRANTING THE PETITION................ 9

I. | The Questions Presented Are Important.......... 9

II. The Decision of the Court of Appeals is

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vi

TABLE OF CONTENTS, CONT.

APPENDIX

U.S. Court of Appeals Decision ............sccceeereeees la

District Court DoCuMents.............cccceeceeeerseeereenees 18a

COIDEBE BR sccsccrecencscessccesstasesesesconsssnesnssetssnaeusennnnet 18a

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vii

TABLE OF AUTHORITIES

Cases Page

A.G.G. Enterprises, Inc. v. Washington

County, Or, et al., 2000 WL 361892

A I, PED crnstentnctncicnssserniicinsscnsinantaneeicnions 2,4,7,8,13,19

AGG Enterprises, Inc. v. Washington

County, et al,.281 F.3d 1324

(9th Cir. 2002).................... sidisaabebiciaaaansesicidiialianinal 2,9,13,14,20

AGG Enterprises, Inc. v. Washington County

County, Or, et. al., 145 F. Supp. 2d 1215

SW Aaa acisaatesaiilesiiantaditicientsaceh tenhannctahisaniiciadadaaaqunadianindeisateagint 9

Chevron U.S.A. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984) ........cccccccceees 20

Federal Express Corporation v. California

Public Utilities Commission, 936 F.2d 1075

(9th Cir. 1991), cert. den. 112 S. Ct. 2956 (1992)............ 16

Joray Trucking

ee es i dichithipisniviesictnniinscnaetcissennaninodakeitiiis 14

Kelley v. U.S., 69 F.3d 1503

ERPs BERNE nectncensetncensteteicnensincanenasics 10,11,18,19,20

Our Garage and Wrecker Service, et. al. v. City of

Columbus, et. al., 257 F. 3d 506 (6” Cir. 2001), cert.

granted, City of Columbus, et. al., v. Ours Garage &

Wrecking Service, Inc., 122 S.Ct. 802 (2002) ............ 21

Pleasant Hill Bayshore Disposal v. Chip It

Recycling, Inc., et al., 110 Cal.Rptr. 2d 708

I iit si icicaciniirerbicniniedannanenncgsanneininnsines 14,19,20

Vili

Transportation of “Waste” Products for

Reuse in Recycling, 114 M.C.C. 92 (1971) .......cceceeees 14,15

Whitman v. American Trucking

Associations, Inc., 121 §.Ct. 903,

531 U.S. 457, 149 L. Ed. 2d 1 (2001)... ee 24

Woodfeathers , Inc., v. Washington County, Oregon,

15, fee NT 6,7

Woodfeathers , Inc., v. Washington County, OR

eg Le A, ee 7

Statutes

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ee ac Se te iicieinsinnsisiigiiensiitiedierscantibiatinadibantiibanianliidaiie 2

PTA. B Bee satnicensinictansnncnniibencsitatpuiniinnsaiininiaiana 15

EE. © Bee cicceihisncanitinivncinicssentidainannabapiaianisaniniaiiin 16

GDB. © UF I ccinsnsinienasetininninsinsanniisesuinninns 15,16

49 U.S.C. § 14501(c)(1) ....2,6,8,9,10,14,16,18,19,20,21,22

TL, © Fe ae sitieseetinnsiitasiinnianiiiaiiisininiianinitioninain 21

Trucking Industry Regulatory Reform Act of 1994,

Pub. L. No. 103-311, 108 Stat. 1686, § 206(d).............. 15

Federal Aviation Administration Authorization

Act of 1994, § 601,”

Pub.L. No. 103-305, 108 Stat. 1569...... 16,17,18,19,21,22

ER Le SR ALE it OM gh a A RR ee

be A

ix

Miscellaneous

Congressional Record:

House Rep. No. 103-240, 103d Cong. 2d Sess.

Reprinted in 1994 U.S.C.A.A.A 1676, 1757

Sara schuinssdjbeeauaitaniiniadinnttieleisidiedhidaaabasaenianAtniatebensannnnicen’ 17

140 Cong. Rec. E 1830-03, 1994 WL 498156-7

NE ile BOW ikensianiniedcsansdatsbansissnssncsassmnaiacnsatouns 21

140 Cong.Rec. S 13283-02 (September 12, 1994).....21

140 Cong. Rec. E2204-03 (October 7, 1994) ............ 21

l

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2001

A.G.G. Enterprises, Inc., Petitioner

v.

Washington County and City of Beaverton, Respondents

Pride Disposal Co.; Swatco Sanitary Service Inc.; United

Disposal Service Inc.; Hillsboro Garbage Disposal Inc.;

Washington County Drop Box Service Inc.; West Beaverton

Sanitary Service Inc.; Aloha Garbage & Recycling Inc.;

Don’s Garbage Service Inc.; Garbarino Disposal & Recycling

Service Inc.; Oregon Refuse & Recycling Association;

United States of America,

Intervenors

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT

A.G.G. Enterprises, Inc. respectfully petitions for a writ

of certiorari to review the judgment and opinion of the United

States Court of Appeals for the Ninth Circuit in this case.

eee

2

OPINIONS BELOW

The opinion of the United States Court ‘° Appeals for

the Ninth Circuit (App. la) is reported at 281 F.3d 1324

(2002). The opinion of the district court (App. 18a) is

reported at 2000 WL 361892.

JURISDICTION

On March 12, 2002, the United States Court of Appeals

for the Ninth Circuit entered its order and opinion in this case.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISION INVOLVED

The relevant statute! is as follows:

49 U.S.C. § 14501. Federal authority over

intrastate transportation

(c) Motor carriers of property. —

(1) General rule—Except as provided in

paragraphs (2) and (3), a State, political

subdivision of a State, or political authority of

2 or more States may not enact or enforce a

law, regulation, or other provision having the

force and effect of law related to a price,

route, or service of any motor carrier (other

than a carrier affiliated with a direct air carrier

covered by section 41713(b)(4)) or any motor

private carrier, broker, or freight forwarder

with respect to the transportation of property.

' Other statutes, not central to the questions presented and cited in this

petition, are set forth in App. 51a-53a.

3

STATEMENT OF THE CASE

Facts

Recyclable materials. On a daily basis,

manufacturers, construction contractors and commercial

enterprises discard materials that can be recycled. These

recyclable commodities include items such as wood, metal,

cardboard, ceramics, tile, concrete, asphalt, roofing material,

glass and drywall (Supplemental Excerpts of Record [“SER”]

2, 12-14, 23). These are “dry” recyclable commodities, not to

be confused with “wet” garbage or putrescible garbage. This

case concerns only “dry” recyclable materials (SER 22-23).

MRFs and MSW. _ Material recovery facilities

(“MRFs”) are establishments that specialize in the sorting

of commingled, dry recyclable materials. Prior to transport

to the MRF, the dry recyclable materials may be

commingled with nonrecyclable material, which is referred

to as mixed solid waste (“MSW”). MRFs sell the sorted

recyclable materials on the open market. After sorting, the

nonrecyclable material is transported from the MRF to a

landfill.

Landfills. The other place to which an MSW load

may be transported is a landfill, where the recyclable

materials are not sorted, and are iustead covered up and are

lost forever.

4

Perpetual exclusive franchises. Since the late

1960s, Oregon local governments, such as Washington

County and the City of Beaverton, have regulated their solid

waste industry by carving up their geographic territories and

awarding those divided territories to noncompetitive

franchises. These franchises, who pay franchise fees to the

local government, are for both residential customers as well as

commercial accounts such as manufacturers, businesses and

construction companies. No new franchise has been granted

in Washington County since 1969, nor for more than 20 years

in the City of Beaverton. (App. 24a).

Industry consolidation/vertical integration/burying

of MSW loads. In 1996, there were 26 franchised haulers in

Washington County, but by 2000, there were only 17, the

result of acquisitions by Waste Management, Inc. and one

other company.” Waste Management, Inc. also owns one of

the two landfills in Washington County (SER 36-38), which

creates additional incentives to bury recyclable commodities

in the landfill rather than transport them to a MRF, since the

transporter/landfill owner gets paid twice, once for the

transport and once for the dump (SER 15-16). As a result of

this vertical integration, MSW loads that once were sorted and

recycled are now landfilled (SER 33-34).

2 Waste Management, Inc. itself is a behemoth, the result of a recent

merger between the nation’s largest and third-largest waste companies,

Waste Management, Inc. and USA Waste, Inc.

5

Fruits of competitive enterprise. The City of

Portland and Multnomah County are open to competition for

the transportation of MSW to MRFs and do not use the

franchise system except for residential service. The City of

Portland has won national recognition for its recycling efforts.

The City of Portland collects revenues from the transportation

of solid waste through the use of a tonnage fee instead of

through a franchise fee.

The franchisees in Washington County do not utilize

the services of MRFs. Instead, the franchisees landfill these

loads, even though they know there is recycling in every bit of

the loads (SER 41, 43).

The business of AGG. A.G.G. Enterprises, Inc.

(“AGG”) is licensed by the Federal Higaway Administration

as a motor carrier of property (SER 4, 44). As part of its

business, AGG enters into transportation contracts with

various construction companies, manufacturers and

businesses to provide drop boxes at the business’s place of

operation. The business places both recyclable materials and

nonrecyclable materials into these drop boxes. Frequently,

AGG’s customers are bound by contract to recycle. Some

commercial customers want AGG to transport MSW to MRFs

because it brings them closer to meeting state and regionally

mandated recycling goals (SER 9, 39).

AGG provides no residential garbage collection or

curbside service (SER 2-3). AGG does provide “wet”

Pao eA AE las NTR. eo Nad bias PREP OLMES

6

garbage collection, not material to this case, in Multnomah

County and the City of Portland.

ECR, a MRF. AGG transports most of its MSW loads

to East County Recycling (“ECR”), a MRF (SER 17, 22).

AGG also utilizes several other recycling facilities (SER 130).

ECR does not accept wet garbage, nor does it accept

hazardous or toxic materials (SER 194, 22-23). ECR is in

business to recover anything out of the dry waste system that

it can take in and develop and move out for a fee (SER 17,

22). ECR can sort recyclable materials more efficiently than

many businesses (SER 30-31).

High recovery rate. ECR’s recovery rate, i.e.

successful removal of recyclable materials from the MSW, is

50% to 60%, with approximately 60,000 tons processed per

year (SER 25, 49-50). If concrete and asphalt were included,

ECR’s recovery rate would be 85% to 90% (SER 28-29).

Intrastate deregulation. In 1994, Congress passed

legislation, now codified at 49 U.S.C. § 14501(c)(1), which

prohibits states and their subdivisions from regulating the

intrastate transportation of “property” by motor carrier,

thereby opening up the intrastate markets to competition.

Previously, in 1980, Congress deregulated the transportation

of property by motor carrier in interstate commerce.

Woodfeathers litigation. In 1996 a roofing company

filed suit against Washington County, alleging that 49 U.S.C.

§ 14501(c)(1) preempted Washington County’s ordinance

7

regarding the transportation of MSW to MRFs. The district

court agreed, held that MSW constituted property, and issued

a preliminary and permanent injunction enjoining Washington

County from enforcing its ordinance. Woodfeathers, Inc. v.

Washington County, Oregon, 1997 WL 311480. °

The Ninth Circuit reversed on abstention grounds, due

to a prior state proceeding involving Woodfeathers, stating

that preemption was not readily apparent. Woodfeathers, Inc.

v. Washington County, OR, 180 F.3 1017, 1022 (9th Cir.

1999).

Enforcement/citations. | While Woodfeathers was

pending, AGG was cited by both Washington County and

City of Beaverton for transporting MSW without having an

exclusive franchise (Excerpts of Record [“ER”] 131-133, SER

14, App. a). These citations were dismissed after the district

court issued the preliminary injunction in Woodfeathers, Inc.

v. Washington County, supra.

At the city’s urging, AGG then applied for a license

from the City of Beaverton. After a long delay and

immediately following the Ninth Circuit’s reversal in

Woodfeathers, the City of Beaverton abruptly informed AGG

that it would not take further action on AGG’s application.

(ER 134). AGG did not apply for a permit with Washington

County, which has not issued a new franchise since 1969.

> Judge Haggerty also found that the ordinances constituted an undue

burden on interstate commerce and thus ran afoul of the Commerce

Clause of the United States Constitution.

8

The district court found, just as did the district court in

Woodfeathers, that such application would have been futile.

(App. 24a, 28a).

Proceedings Below

AGG filed a complaint in the United States District

Court for the District of Oregon, alleging that Washington

County’s and the City of Beaverton’s solid waste ordinances

were preempted by 49 U.S.C. § 14501(c)(1), and requesting

the court to issue a permanent injunction against Washington

County and the City of Beaverton as to the enforcement of the

portion of the ordinances which conflicted with federal law.

The district court allowed intervention in support of the

defendants by Oregon Refuse and Recycling Association, a

statewide association of franchised haulers, as well as several

individual franchise haulers operating within the defendants’

geographical limits.

The district court granted AGG’s motion for a

permanent injunction, holding that the transportation of the

MSW, when collected from commercial and _ industrial

accounts, are “property” within the meaning of 14501(1)(c),

and that the local and state regulations of the transportation of

those loads was thus preempted (App. 36a-37a). *

* AGG also alleged that the ordinances were contrary to the Commerce

Clause of the United States Constitution as they imposed barriers to the

free flow of interstate commerce and that the ordinances, as enforced

and applied to AGG, violate the equal protection provisions of the

Fourteenth Amendment to the United States Constitution and the

comparable provision in the Oregon Constitution. The district court

“

The Ninth Circuit reversed and held that Section

14501(c)(1) did not preempt the local regulation of the

collection of the MSW, stating that Congress did not show a

clear and manifest intent to do so.” (App. 16a).

REASONS FOR GRANTING THE PETITION

I. The Questions Presented Are Important

Extensive national interest. As evidenced by the

amici briefs filed in the Ninth Circuit®, there has been

tremendous national interest in this case, from the recycling

industry, private industry, consumer interests, state and local

governments, and national waste hauling companies. All

interested groups are represented. The issues have been fully

briefed, and the case is set for final resolution by this court.

National welfare affected. The issues in this case are

of national significance and exceptional importance and

directly affect the welfare of the nation.

Legal roadmap provided. The Ninth Circuit’s opinion

overlooks longstanding precedent of the Interstate Commerce

ruled that the ordinances did not constitute an undue burden upon

interstate commerce, and did not address the equal protection issue.

AGG did not cross-appeal those holdings.

* In a separate proceeding filed while this case was appealed in the

Ninth Circuit, AGG sought comparable relief from the district court

regarding the consolidation of smaller loads for transport to the MRF.

The district court denied that request. AGG did not appeal that

decision. A.G.G. Enterprises, Inc. v. Washington County, et al, 145 F.

Supp. 2d 1215, 1224 (D. Or. 2001).

* Amici curiae are listed at App 54a-56a.

10

Commission (“ICC”), the agency that has long been vested

with responsibilities regarding recyclable materials’, as well

as congressional precedent. The ICC and Congress have

provided a series of decisions and policies that provide this

court with the necessary information to provide a reasoned

decision. Of course, the states do not want this court to

review that legacy, and have dug in to prevent this from

occurring.

Impeded competition. In 1994 Congress passed

legislation permitting competitive services for the

transportation of recyclable materials. Eight years later, the

states are still protecting turf that is no longer theirs.

Congress and the ICC have a long history of extending

favorable legislation and regulation to nurture the recycling

industry, by easing the transportation-related regulatory

requirements pertaining to recyclable material.

Judicial v. legislative relief. The states are

attempting to accomplish through the courts what they were

unable to accomplish through legislation, which is to

overturn the offending portion of 49 U.S.C. § 14501 (c)(1).

First they attempted legislative relief (p. 21, infra), which

failed. Then they attempted judicial relief (Kelley, p.18

infra) which failed. The towing industry (p. 21, infra),

’ The ICC has recently been sunsetted, and its functions transferred to

its successor, the Surface Transportation Board.

11

pursued legislation for the identical issue, and the states

need to follow that lead.

De facto conflict. There is tension between the

holdings of Kelley and this case, which while not involving

identical issues, nevertheless address similar preemption

issues. Seven years after Kelley, the states still refuse to

acknowledge federal preemption in this area.

No trampling of states’ rights. The recyclable

industry has changed. Construction debris should no

longer be landfilled. “Garbage” and “refuse” are not the

operative words, although those are the words used by

others which distort the focus and which demonstrates a

mentality that evolves from the era when everything was

landfilled. Instead, the operative words are “recyclable

materials” and “recycling facilities”. The local governments

are still free to regulate the transportation and disposal of the

nonrecyclable materials that flow out of the MRF.

Trampling rights of business. By continuing to

regulate the transportation of recyclable materials, the states

are infringing on the inability of manufacturers, commercial

establishments and businesses to make their own decision

about their own soon-to-be discarded recyclable materials.

That decision has been shifted by the local governments to the

local franchisee, which in many cases is also the owner or

operator of a landfill. As the owner or operator of a landfill, —

these franchises, which are frequently national waste

12

companies, thus get paid twice, once for the transport and

once for the dump. And all of this occurs in the name of the

states traditional powers over the collection of garbage.

Industry juggernaut. Washington County, a

microcosm of what this case is about, has not granted a new

franchise for more than 30 years, since 1969. In the

meantime, national waste handling companies, such as Waste

Management, Inc., have bought up franchises in Washington

County, which has seen the number of franchised haulers, just

in the tiny four year period from 1996 to 2000, dwindle from

26 to 17, as the industry has consolidated.* Waste

Management, Inc. owns a jandfill in Washington County, as

well as being a franchised hauler, and is thus a “vertically

integrated” company by virtue of its status of both a

transporter and the owner of the landfill.

Unburying is not possible. This abhorrent practice of

diverting good, valuable MSW loads to the landfill instead of

transporting these MSW loads to the MRF has negatively

impacted the recycling industry including MRFs such as ECR.

For example, ECR previously received MSW loads from a

location 60 feet from its premises. However, those loads are

now landfilled (SER 33-34). Once those those recyclable

materials are buried, they are forever gone. This nation no

* Waste Management, Inc. intervened in the district court proceedings

through one of its wholly owned companies, Don’s Garbage Service,

Inc., without disclosing to the district court its ownership of this

company.

13

longer has the luxury, if it ever really did, of landfilling ever-

diminishing natural resources, when those _ recyclable

materials could instead be recycled and reused.

—

License to destroy. The act of a business of discarding

its recyclable materials should not be turned into a license by

others to effectively destroy those recyclable materials when

federal law provides an alternative. The disposition by

manufacturers, construction companies, commercial

establishments and businesses of their recyclable materials is

of tremendous importance to this country’s welfare. Congress

has a longstanding policy of protecting recyclable materials,

and that policy needs to be adhered to at the state level.

_ Court sanctioned value evaporation. The district court

found that the MSW loads have value and that the business of

MRFs such as ECR “is based on the economic value inherent

in the material”. (App. 35a). However, the Ninth Circuit’s

decision allows that value to be lost even though it

acknowledged that 80% to 90% of any load may be

recyclable. (App. 15a-16a). The ICC and Congress have

established laws and policies to prevent this backward form of

thought process to govern today’s world, and a

pronouncement from this court is needed to implement those

laws and policies.

District courts’ disdain. Both district courts, in the

Woodfeathers case and in this case, refused to condone the

14

defendants’ practices and issued their respective permanent

injunctions.

II. The Decision of the Court of Appeals is Erroneous

The Ninth Circuit relied upon a recent decision by a

California Court of Appeals court (p. 19, infra) which was

completely unencumbered by knowledge regarding even the

undisputed portion of 49 U.S.C § 14501(c)(1). But first a

look at the legal history of the transportation of recyclable

materials.

ICC Precedent. We start with the ICC case of Joray

Trucking, 99 M.C.C. 109 (1969). Joray involved construction

debris that was taken to a landfill, a “wasteland”, a word used

several times in that opinion. The ICC concluded that this

unwanted demolition debris had negative value, and thus did

not have the attributes commonly associated with “property”.

99 M.C.C. at 110. _So in 1969 the country is landfilling

construction debris that has no value, and that construction

debris is not considered to be property.

Then, just two years later, the ICC stated its “concern

with . . . the deterioration of our natural surroundings caused

by . . . the misuse and depletion of our land and natural

resources.” Transportation of “Waste” Products for Reuse

and Recycling, 114 M.C.C. 92 (1971). In this proceeding, the

ICC said it “intend[ed] to give practical effect to this concern .

. and to take positive and concrete action to support and

encourage antipollution programs” such as recycling. Jd. at p.

i er ate aT ae A ERT eee

15

93. The ICC concluded that these recyclable commodities

were “property”, stating that the recyclable materials “will

become vital elements in the manufacturing process in which

they are to be utilized. . . .”. Jd. at 104-05. Thus, recyclable

materials qualify as property if they are of value in the

manufacturing stream. Otherwise, the entire rulemaking

exercise in Waste Products would have been a futility.

Congressional protection of recyclables. Congress

itself has specifically addressed the importance of the

transportation of recyclable materials. For example, former

49 U.S.C. § 10733 (App. 51a), enacted in 1980, provided an

exception from normal tariff filings and permitted carriers to

provide transportation of recyclable materials without charge

or at a reduced rate. It is obvious that Congress deemed it

ii.. oortant that the transportation of recyclable materials not be

impeded in any way.”

The vestiges of this Congressional protection of the

transportation of recyclable materials are still present in the

federal statutes at 49 U.S.C. § 13709(h)(1)(C). (App. 52a).

This statute, which addresses the procedure for resolving

certain tariff-related claims (which, again, is largely mooted

due to the passage of TIRRA), provides an exception from

liability for these claims for (1) small business concerns under

° The need for this statute became moot, and was thus repealed, when

Congress eliminated the tariff filing requirements for interstate motor

carriers through the passage of the Trucking Industry Regulatory

Reform Act of 1994. Pub. L. No. 103-311, 108 Stat. 1686, § 206(d).

16

the Small Business Act, (2) charitable and similar

organizations pursuant to [26 U.S.C.] Section 501(c)(3) of the

Internal Revenue Code, and (3) recyclable materials.

Recyclable materials are in nice, protected company.

Note also that Congress has traditionally allowed the

transportation of mixed loads. See 49 U.S.C. § 13507 (App.

51a), permitting the transportation of regulated and

unregulated property in the same vehicle.

Reasons for 49 U.S.C. § 14501(c)(1). The genesis of

49 U.S.C. § 14501(c)(1) was a food fight in which Federal

Express and the United Parcel Service were engaged. Federal

Express was organized as an air carrier, whereas UPS was

organized as a motor carrier. The battle, over what state law

or regulation applied to whom and how, ended up before the

Ninth Circuit. Federal Express Corporation v. California

Public Utilities Commission, 936 F.2d 1075 (9th Cir. 1991),

cert. den. 112 S. Ct. 2956 (1992).

Legislative history. Legislation was introduced via

an aviation bill, contained in Section 601 of the Federal

Aviation Administration Authorization Act of 1994

(“FAAAA”), Pub. L. No. 103-305, 108 Stat. 1569, to

eliminate the state economic regulation of all intrastate motor

carrier transportation (excluding household goods). As seen

in the conference report, Congress was aware of ICC

precedent and was assured that the traditional collection of

garbage would not be impacted by this legislation:

17

The conferees further clarify that the motor

carrier preemption provision does not preempt

State regulations of garbage and refuse

collectors. The managers have been informed

by the Department of Transportation that

under ICC case law, garbage and refuse are

not considered “property.” Thus garbage

collectors are not considered “motor carriers

of property” and are thus unaffected by this

provision.

House Rep. No. 103-240, 103rd Cong. 2d Sess., reprinted

in 1994 U.S.C.A.A.N. 1676, 1757 (1994).

Impact of legislation. The legislation passed both

houses of Congress and became law. The change in the motor

carrier industry was dramatic. Prior to the FAAAA, in most

states only a chosen group of carriers, much like the

franchises in this case, could transport a particular commodity

within a particular region. For example, a motor carrier

needed Oregon Public Utility Commission approval to

transport a load of steel from Portland, Oregon to Eugene,

Oregon, even though a carrier without OPUC authority could

transport that same commodity from Portland, Oregon to

Sacramento, California, waving its federal authority at the

OPUC’s office in Salem on its way down Interstate 5. Upon

the passage of the FAAAA, all state-issued motor carrier

certificates of authority, except for those pertaining to the

movement of household goods, which were valuable and

transferable prior to the passage of the FAAAA, became

worthless overnight.

18

Kelley v. U.S. This legislation got the states and their

friends all worked up and several of them marched off to

federal court to have this preposterous legislation, as they

viewed it, overturned. However, the 10th Circuit confirmed

its legitimacy, notwithstanding its unintuitive origins. Kelley

v. U.S, 69 F.3d 1503 (10th Cir. 1995). The states there

claimed that the FAAAA:

[p]reempts not only state economic regulation —_

of intrastate trucking, but also “state tort laws, _

state antitrust loss, state consumer protection _

loss, state laws regarding cargo loss and

damage claims, state laws governing the

transportation of solid and hazardous waste,

and state uniform commercial codes.

Id. at 1508. The Kelley court rejected these arguments, stating

that the means chosen by Congress were reasonably adapted

to the ends sought by Congress. It further downplayed these

doomsday claims of the states, stating:

Finally, although § 601 may have had some

unintended effects, such as freeing the reigns

on intrastate towing and wrecker services,

plaintiffs have not cited any cases holding that

unintended effects of legislation, by

themselves, serve to make the legislation

irrational for purposes of Commerce Clause

analysis.

Id. at 1509. Thus, intended or even if unintended, 49 U.S.C. §

14501(c)(1) preempts the transportation of recyclable

materials to recycling facilities.

19

Thus, everyone knew back in 1995 that Congress,

through an aviation bill, deprived the states of their ability to

economically regulate their intrastate transportation of

property by motor carrier. The states and their friends refuse

to acknowledge that reality.

District court decision. The district court concluded

that the local and state regulation of these MSW loads, when

transported to a MRF, were preempted by 49 U.S.C. §

14501(c)(1). (App. 36a-37a). In reaching this conclusion, the

district court reviewed legislative history, as well as the

historical treatment of this subject by the ICC. (App. 33a-

36a).

California court confusion. Later, however, the court

in Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling,

Inc., 110 Cal. Rptr. 2nd 708 (Cal. App. 1 Dist. 2001), which

did not cite Kelley, stated that it was inconceivable that

Congress intended to preempt state economic regulation of

intrastate motor carriage. /d. at p. 175. Lest there be any

doubt what the court was thinking, the court stated:

The clear impression is that this is, as its name

states, a congressional measure devoted to

aviation.

Id. at p. 714. The California court did not even know,

or at least certainly demonstrated no knowledge, that

Congress had, seven years earlier and apart from the disputed

recyclables issue, preempted the states’ ability to

20

economically regulate its own intrastate motor carrier

industry.

Even the federal government weighed in long after the

briefing was done and shortly prior to oral argument. The

government confirmed the constitutionality of 49 U.S.C.§

14501(c)(1), albeit also offering its gratuitous and erroneous

comments that 49 U.S.C § 14501(c)(1) did not apply to the

transportation in issue.

Fortuituous adverse decision? Perhaps this decision

from this state appellate court is fortuitous, as it crystallizes

the misunderstanding of the fact that Congress deregulated

intrastate surface transportation via an aviation appropriation

bill. Legislation meanders through Congress on a line that is

frequently more east-west than north-south. There are

stranger stories about riders of various varieties being

attached to various pieces of legislation. The procedure need

not be intuitive, as long as the product is rational.

Ninth Circuit decision. The Ninth Circuit, which also

did not cite Kelley (cited in AGG’s appellate brief), refused to

even consider or discuss, the ICC cases (App. 14a),

notwithstanding the well-known maxim that an agency’s

determination or treatment of a regulation is entitled to

considerable weight. Chevron U.S.A. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). Instead, it found

false solace in relying upon the uninformed holding in

Pleasant Hill. (App. 16a).

21

Post-legislation activity: Towing industry. To be

sure, the passage of the FAAAA caught some off guard. The

people in the towing industry, itself also traditionally

regulated by state and local authorities, suddenly found

themselves without the ability to regulate in this area. They

went back to Congress and got themselves an exception from

the exemption, through the addition of subsection (2) (C) to

49 U.S.C. § 14501(c). (App. 53a). This subsequent

legislation is the subject of a proceeding now before this

court. Our Garage and Wrecker Service et. al. v. City of

Columbus, et. al., 257 F. 3d 506 (6" Cir. 2001), cert. granted,

City of Columbus, et. al. v. Ours Garage & Wrecker Service,

Inc., et. al., 122 S.Ct. 802 (2002).

Failed technical corrections bills. There was further

post-legislation concern as well about the impact of 49 U.S.C.

§ 14501(c)(1). One month after Congress passed the FAAAA,

technical corrections bills were submitted in both the House

of Representatives and Senate. 140 Cong. Rec. E1830-03,

1994 WL 498156-7; 140 Cong. Rec. $13283-02 (Sept. 12,

1994). Reference was made to an opinion of the ICC general

counsel that the “movement of metal scrap from or to a

foundry” would constitute the transportation of property

within the preemptive sweep of Section 601(c). 140 Cong.

Rec. E2204-03 (October 7, 1994). This is hardly surprising.

There is a common sense distinction between recyclables

22

transported in a commercial context, as opposed to the

curbside or residential collection of recyclable materials.

These technical corrections bill died. Since 49 U.S. C.

§ 14501 (c) (1) has not been “technically corrected” it still, at

a minimum, technically preempts the transportation of

recyclable materials to a recycling facility.

End result. The bottom line is that Congress knew

what it was doing when it passed the FAAAA. Consistent

with congressional policy and ICC precedent, Congress

intended that the transportation of recyclable materials from

construction sites, manufacturers and commercial

establishments would be treated differently than curbside,

residential collection which homeowners see on a weekly or

periodic basis in their neighborhoods. Congress intended to

allow the unshackled transportation of recyclable materials to

recycling facilities, an activity that does not interfere with the

states’ police power over the transportation of garbage and

refuse.

In order to get relief from the FAAAA, the states need to

do what the towing industry did, dust off the technical

corrections bills and get their exemption from preemption.

The fix they need to seek is legislative, not judicial.

Ill. High Level of Interest

Extensive amici interest. As evidenced by the

intervention at the district court level, and the numerous briefs

filed with the Ninth Circuit (App. 54a-56a), there has been

23 }

tremendous interest in this proceeding, an interest level which |

exceeds the interest level in many of the cases accepted for

review. There are no known other pending cases, at either

the district court or circuit court level, which address this

issue.

Improper objectives. The intervenor haulers

confirmed that although there is recycling in every bit of

garbage, they nevertheless take their mixed garbage loads to

the landfill (SER 41, 43). A MRF, on the other hand, with its

lower labor costs and higher expertise in sorting recyclable

materials, can handle this job much more efficiently (SER 30-

31). The states only want the ability to regulate, and the

industry only wants the ability to improve its bottom line.

Naked support. If you strip away the states’ turf

protection, as well as the self-interest of the landfill industry,

there is no support for the states’ and intervenors’ position.

There are no public interest groups clamoring to be protected

against the recycling of recycling materials by manufacturers

and commercial and business concerns. On the other hand,

there is strong support from entities like the American Forest

and Paper Association, Association of California Recycling

Industries, Californians against Waste, California Research

Recovery Association, Grass Roots Recycling Network,

Independent Recyclers Counsel, and the Northern California

Recycling Association (App. 54a), all of whom desire that

these recyclable materials be recycled instead of landfilled.

24

This court has recently granted review in a case

involving public interests where there was a decision from

only one circuit. Whitman v. American Trucking

Associations, Inc., 121 S. Ct. 903, 531 U.S. 457 (2201).

CONCLUSION

This petition is not about AGG, which is only a bug

on the windshield of the solid waste industry. Instead, it is

about implementing legislation passed by Congress eight

years ago, which, together with the ICC, has a long history

of protecting and nurturing the recycling industry. The

states have resisted the need to come to grips with this

legislation as well as with the evolution of the recycling

industry.

This case has been briefed more fully, with extensive

intervention and amici involvement, than many of the cases

accepted for review by this court. This court is urged to

accept this petition. |

One person’s trash is another person’s treasure.

Respectfully submitted,

aa oceiaicilea € Dwele

Lawrence R. Davidson

Counsel of Record and for Petitioner

1850 Benjamin Franklin Plaza

One SW Columbia Street

Portland, OR 97258

(503) 229-0199

-la-

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AGG ENTERPRISES, Oregon

corporation,

Plaintiff-Appellee,

UNITED STATED OF AMERICA,

Intervenor,

V.

WASHINGTON COUNTY, CITY OF

BEAVERTON,

Defendants, No. 00-35449

D.C. No.

PRIDE DISPOSAL CO.; SWATCO CV-99-01097-GMK

SANITARY SERVICE INC.; UNITED

DISPOSAL SERVICE INC., HILLSBORO

GARBAGE DISPOSAL INC.;

WASHINGTON COUNTY DROP BOX

SERVICE INC.; WEST BEAVERTON

SANITARY SERVICE INC.,

Intervenors,

and

OREGON REFUSE & RECYCLING

ASSOCIATION,

Defendant-intervenor-Appellant.

- 24 -

AGG ENTERPRISES, Oregon

corporation,

Plaintiff-Appellee,

Vv.

WASHINGTON COUNTY, CITY OF

BEAVERTON,

Defendants,

PRIDE DISPOSAL Co.; SWATCO

SANITARY SERVICE INC.; UNITED

DISPOSAL SERVICE INC., HILLSBORO

GARBAGE DISPOSAL INC.;

WASHINGTON COUNTY DROP BOX

SERVICE INC.; WEST BEAVERTON

SANITARY SERVICE INC., ALOHA

GARBAGE & RECYCLING INC., DON’S

GARBABE SERVICE; GARBARINO

DISPOSAL & RECYCLING SERVICE

INC.

Intervenors-Appellants,

OREGON REFUSE & RECYCLING

ASSOCIATION,

Defendant-intervenor.

No. 00-35509

D.C. No.

CV-99-01097-GMK

|

-3a-

AGG ENTERPRISES, Oregon

corporation,

Plaintiff-Appellee,

UNITED STATED OF AMERICA,

intervenor,

Intervenor,

V.

WASHINGTON COUNTY,

Defendants-Appellant,

and

CITY OF BEAVERTON,

Defendant, No. 00-35510

D.C. No.

PRIDE DISPOSAL CO.; SWATCO CV-99-01097-GMK

SANITARY SERVICE INC.; UNITED

DISPOSAL SERVICE INC., HILLSBORO

GARBAGE DISPOSAL INC.;

WASHINGTON COUNTY DROP BOx

SERVICE INC.; WEST BEAVERTON

SANITARY SERVICE INC., ALOHA

GARBAGE & RECYCLING INC., DON’S

GARBABE SERVICE; GARBARINO

DISPOSAL & RECYCLING SERVICE

INC.

Intervenors,

and

OREGON REFUSE & RECYCLING

ASSOCIATION,

Defendant-intervenor

AGG ENTERPRISES, Oregon

corporation,

Plaintiff-Appellee,

Vv.

WASHINGTON COUNTY,

Defendant,

OREGON REFUSE & RECYCLING

ASSOCIATION,

Defendant-Intervenor. No. 00-35511

D.C. No.

PRIDE DISPOSAL CO.; SWATCO CV-99-01097-GMK

SANITARY SERVICE INC.; UNITED

DISPOSAL SERVICE INC., HILLSBORO OPINION

GARBAGE DISPOSAL INC.;

WASHINGTON COUNTY DROP BOX

SERVICE INC.; WEST BEAVERTON

SANITARY SERVICE INC., ALOHA

GARBAGE & RECYCLING INC., DON’S

GARBABE SERVICE; GARBARINO

DISPOSAL & RECYCLING SERVICE

INC.

Intervenors,

and

CITY OF BEAVERTON,

Defendant-Appellant.

Appeal from the United States District Court

For the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

November 5, 2001—Portland, Oregon

Filed March 12, 2002

~- 5a -

Before: Procter Hug, Jr., Thomas G. Nelson, and

Ronald M. Gould, Circuit Judges.

Opinion by Judge Gould

COUNSEL

Dan R. Olsen, Washington County Counsel, Hillsboro,

Oregon, and Williams J. Scheiderich, City Attorney’s Office,

Beaverton, Oregon, for the defendant-appellants.

Barnes H. Ellis, James N. Westwood, Stephen A. Redshaw,

Stoel Rives LLP, Portland, Oregon, G. Frank Hammond,

Cable Huston Benedict Haagensen & Lloyd LLP, Portland,

Oregon, Edward J. Sullivan, James R. Herald, Preston Gates

& Ellis, LLP, Portland, Oregon for the intervenors-appellants

and defendant-intervenor-appellant.

Lawrence R. Davidson, Portland, Oregon, Jeffrey M.

Batchelor and Paul Bierly, Markowitz, Herbold, Glade &

Mehlhaf, P.C., Portland, Oregon, for the plaintiff-appellee.

Mark B. Stern, Dana J. Martin, Department of Justice Civil

Division, Washington, D.C., for intervenor.

Jay W. Beattie, Lindsay, Hart, Neil & Weigler, LLP, Portland,

Oregon, John Douglas Moore, Henn, Etzel and Moore, Inc.,

- 6a -

Oakland, California, Robert B. Rocklin, Assistant Attorney

General, Salem, Oregon, Scott M. DuBoff, Wright &

Talisman, P.C., Washington, D.C., Richard E. Norris, Mark S.

Coon, and John L. Kortum, Archer Norris, Richmond,

California, Vicki W.W. Lai, Yarmuth Wilsdon Calfo PLLC,

Seattle, Washington, John Kelly Astor, Astor & Phillips, Los

Angeles, California, John J. Welsh, Burke, Williams &

Sorensen, LLP, Los Angeles, California, James K. Sells,

Silverdale, Washington, Todd E. Thompson, Howard, Rice,

Nemerovski, Canady, Falk & Rabkin, San _ Francisco,

California, for amici curiae.

OPINION

GOULD, Circuit Judge:

OVERVIEW

Defendants-Appellants City of Beaverton and

Washington County, Oregon appeal the district court’s entry

of a permanent injunction preventing them from enforcing

their trash-hauling regulations against plaintiff-appellee AGG

Enterprises (“AGG”). AGG collects and disposes of loads of

construction materials -- mixed solid waste containing part

recyclables and part non-recyclables — from its nonresidential

customers. Defendants consider mixed solid waste the same

as regular garbage or refuse, and they want AGG to be subject

to their trash-hauling regulations.

-Ja-

AGG sued defendants for injunctive relief from those

regulations in the district court, claiming that local trash-

hauling regulations were preempted by a provision in the

Federal Aviation Administration Authorizing Act of 1994

(“FAAAA”), 49 U.S.C. § 14501(c), that preempted state

regulation of motor carriers transporting property. The

district court granted a permanent injunction.

Defendants claim that the district court erred because

Congress did not intend for mixed solid waste to be

considered “property,” and therefore the local regulations are

not preempted. We agree, reverse the district court, and

vacate the permanent injunction.

FACTUAL BACKGROUND

Plaintiff-appellee AGG Enterprises, Inc. (“AGG”) is a

waste removal service with operations in Oregon, Idaho, and

Washington. AGG contracts with customers at commercial,

industrial, and construction sites to collect materials such as

brick, glass, tile, concrete, wood, cardboard, plastic, and

metal. AGG’s intra-Oregon services are at issue.

AGG handles two types of trash loads: recyclable

presorted by customers (“source sorted”), and unsorted loads

of non-recyclable, dry garbage mixed with recyclables

(“mixed solid waste” or “MSW”). Only the MSW loads are

at issue.

After AGG picks up the MSW loads from its

customers, it delivers the loads to East County Recycling

ie.

(“ECR”), a material recovery facility. ECR separates

recyclables, recycles them, and hauls non-recyclables to a

landfill. Neither AGG nor any AGG customer receives a

rebate for the recyclable portion of a mixed solid waste load.

According to AGG, customers with high labor costs find it

cost-effective to have AGG pick up their mixed solid waste

loads rather than to sort the recyclables themselves. AGG

claims that the government-licensed trash haulers available to

these customers will not take MSW to a recycling center such

as ECR. AGG suggests that these customers rely on AGG to

meet recycling commitments.

AGG does not know exactly how much of a

customer’s load is recyclable. AGG brings almost all its loads

to ECR. ECR collects 60,000 tons of MSW per year, and

claims that it recycles 50% to 60% of that. The owner of

ECR stated that “he played with the numbers” one time to try

to take into account the concrete and asphalt recycling from

the MSW, and that brought the recycling rate up to 80% to

90%. Under the most extreme view, on average at least 10%

to 20% of each load is garbage that is not recyclable.

Defendants-appellants Washington County and City

of Beaverton (“Beaverton”) regulate trash collection through

the use of exclusive franchises. Both issue licenses or

certificates granting exclusive authority to collect waste in

one of 35 geographical areas. Under both systems, the

exclusive franchisee provides residential and commercial

+ Oa.

collection. Neither defendant regulates source sorted

recyclables. Businesses and persons may haul waste they

generate, without a license or certificate.

AGG does not hold an exclusive license. As a result,

Beaverton cited AGG for unauthorized collection of solid

waste, a violation with a maximum fine of $250. AGG then

applied for a license from the City of Beaverton. After

Beaverton informed AGG it would not take further action on

AGG’s licensing application, AGG brought suit for injunctive

relief in the district court.’

The district court found that plaintiff was a “motor

carrier” transporting “property” and that the Federal Aviation

Administration Authorizing Act of 1994 (“FAAAA”)

preempted the defendants’ exclusive licensing schemes. The

district court granted plaintiff the permanent injunction, and

defendants and intervenors appealed.”

DISCUSSION

I. Standard of Review

' Several hauling companies with exclusive licenses from

Beaverton and Washington County intervened on the side of

the defendants.

* The United States of America intervened as a right on appeal

to defend the FAAAA against a claim by defendants that the

FAAAA, if preemptive of trash-hauling regulation, violates

the Commerce Clause. We do not reach that issue in view of

our conclusion below that the FAAAA did not preempt the

power of local jurisdictions to regulate garbage collection.

- 10a-

We review de novo the district court’s decision

regarding preemption. See Nathan Kimmel, Inc. v.

Dowelanco, 275 F.3d 1199, 1203 (9th Cir. 2002). We review

de novo the district court’s interpretation and construction of

the FAAAA. See Rowe v. Laidlaw Transit, Inc., 244 F.3d

1115, 1117 (9th Cir. 2001).

II. Language of the Statute

[1] Under the Supremacy Clause of the Constitution,

federal law is the “supreme Law of the Land.” U.S. Const.

art. VI. Federal law overrides any conflicting state or local

law. See Pacific Gas and Electric Co. v. State Energy

Resources Conservation & Development Commission, 461

U.S. 190, 204 (1983). Federal preemption “may -be either

express or implied, and ‘is compelled whether Congress’

command is explicitly stated in the statute’s language or

implicitly contained in its structure and purpose.’ ” Branco v.

UFCW-Northern California Employers Joint Pension Plan,

No. 00-15884, 2002 WL 200910, at *2 (9th Cir. Feb. 11,

2002) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525

(1977). We must decide whether the FAAAA preempts local

entities from regulating the collection of MSW loads-

[2] Preemption analysis begins with the “presumption

that Congress does not intend to supplant state law.” New

York State Conference of Blue Cross & Blue Shield Plans v.

Travelers Ins. Co., 514 U.S. 645, 654 (1995). Also, “in cases

. . . where federal law is said to bar state action in fields of

- lla-

traditional state regulation, we have worked on _ the

assumption that the historic police powers of the States were

- not to be superseded by the Federal Act unless that was the

clear and manifest purpose of Congress.” Jd. at 655 (internal

citations omitted). Although Congress clearly intended the

FAAAA to preempt some state regulations, we consider this

“presumption against the preemption of state police power

regulations” when we analyze the scope of the preemption.

Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1966).

[3] Congress has recognized that waste hauling is a

traditional state and local function subject to state regulation.

See 42 U.S.C. § 6901(a)(4) (stating that “the collection and

disposal of solid waste should continue to be primarily the

function of State, Regional and local agencies”). Our

precedent has recognized the strong local governmental

interest in regulating garbage collection. Kleenwell

Biohazard Waste and General Ecology Consultants, Inc. v.

Nelson, 48 F.3d 391, 398 (9th Cir. 1995). One could hardly

imagine an area of regulation that has been considered to be

more intrinsically local in nature than collection of garbage

and refuse, upon which may rest the health, safety, and

aesthetic well-being of the community. See generally

California Reduction Co .v. Sanitary Reduction Works of San

Francisco, 199 U.S. 306, 318 (1905); Kleenwell, 48 F.3d at

398. The historic responsibility of local governments to

ensure safe and comprehensive garbage collection posts a

- 12a -

strong caution against the possibility that Congress lightly

would preempt local regulation in this field.

[4] Our inquiry under Blue Cross, and in light of this

cautionary history, is whether it was the “clear and manifest”

intention of Congress to preempt local regulation of the

collection of loads containing part recyclable materials and

part non-recyclables. 514 U.S. at 655.

We previously have held that the FAAAA’s

preemption of regulation of the collection of mixed solid

waste is not “readily apparent.” See Woodfeathers, Inc. v.

Washington County, Oregon, 180 F.3d 1017, 1022 (9th Cir.

1999). Woodfeathers was a case about Younger abstention,

and when we held that preemption was not “readily apparent,”

we were deciding only that FAAAA preemption of MSW

regulation was an unsettled issue. See id. at 1021-22. We

pick up now where we left off in Woodfeathers to decide the

issue we there stated was undecided.

[5] To determine Congress’ intent on preemption, we

begin with the “text of the provision in question, and move

on, as need be, to the structure and purpose of the Act in

which it occurs.” Blue Cross, 514 U.S. at 655. Section

601(c) of the FAAAA provides: |

(c) Motor carriers of property. —

(1) General Rule. — Except as provided in

paragraphs (2) and (3), a State, political

subdivision of a State, or political authority of

2 or more States may not enact or enforce a

- 13a-

law, regulation, or other provision having the

force and effect of law related to a price,

route, or service of any motor carrier . . . or

any motor private carrier, broker, or freight

forwarder with respect to the transportation of _

property.

49 U.S.C. § 14501(c). “Property” is the operative word for

our analysis, but Congress did not define the term. Nor is the

meaning of “property” perfectly clear from the context of the

statute. So, to interpret this statute in accord with Congress’

intent, it is appropriate that we look beyond the text of the

statute to determine Congress’ purpose in enacting this

statute.

Ill. Legislative History

[6] Legislative history shows that the major purpose

of the FAAAA preemption clause was to “level the playing

field between air carriers on the one hand and motor carriers

on the other with respect to intrastate economic trucking

regulation... .” H.R. Conf. Rep. No. 103-677, at 82 (1994),

reprinted in 1994 U.S.C.C.A.N. 1715, 1754. Congress was

concerned that package delivery companies organized as

“motor carriers,” such as UPS, were subject to state

regulation, whereas companies organized as “air carriers,”

such as Federal Express, were free from state regulation. See

id. Although this shows Congress had an intent different than

preempting state regulation of solid waste collection, it does

not settle the issue, because Congress may have had more

than one purpose.

- 14a-

[7] Other legislative history gives insight into the

intent of Congress on the scope of preemption and regulation

of solid waste collection:

The conferees further clarify that the motor

carrier preemption provision does not preempt

State regulation of garbage and _ refuse

collectors. The managers have been informed

by the Department of Transportation that

under ICC case law, garbage and refuse are

not considered ‘property.’ Thus garbage

collectors are not considered ‘motor carriers of

property’ and are thus unaffected by this

provision.

H.R. Conf. Rep. No. 103-677, at 85 (1994), reprinted in 1994

U.S.C.C.A.N. 1715, 1757. We said in dicta in Woodfeathers

that the force of this piece of legislative history was debatable

because the Interstate Commerce Commission (“ICC”) case

law, which Congress was told did not consider garbage and

refuse “property,” is equivocal as to whether it could be

“property” or not. 180 F.3d at 1022. However, it is irrelevant

in our present analysis whether or not ICC case law is

equivocal. We are not concerned with what ICC case law

says, but with what Congress intended in its statute and at

most with what Congress thought ICC case law said. That is

what shows us whether Congress had a “clear and manifest”

intent to preempt state regulation of the collection of MSW

loads. This legislative history is important, because it shows

that if Congress exhibited any clear intent, it was an intent not

to preempt state and local regulation of solid waste collectors.

- l5a-

Even if Congress was misinformed as to what ICC case law

held, it believed that the statute it was passing would not

affect local regulation of garbage and refuse collection.

AGG offers no other contrary legislative history to

show an intent by Congress to preempt local waste collection

laws.’ Instead, AGG claims that the legislative history does

not hurt its case. AGG argues that ICC case law considers

MSW loads “property,” and that therefore MSW is not

“garbage and refuse,” and is unaffected by the legislative

history.

[8] We decline AGG’s invitation delicately to parse

the holdings of several ICC cases in combination. As stated

above, we need not scrutinize ICC case law. About 40% to

50% of the MSW loads taken by AGG is non-recyclable

garbage and must be taken to a landfill. Even under the

highest proposed recycle rate, when the recycling center

“played with the numbers,” an average of 10% to 20% of the

> AGG presents a few comments from members of Congress

on a failed technical corrections bill. See, e.g.,140 Cong. Rec.

E1830-02 (daily ed. Sept. 12, 1994) (statement of Rep.

Cantwell). The comments declare that curbside recycling

should be considered the same as garbage and refuse, in that

the FAAAA should have no preemptive effect on such

regulation. AGG tries to parlay these comments to show that

while curbside recycling was meant to be the same as garbage

and refuse, MSW should be considered “property.” We do

not subscribe to AGG’s interpretation for whatever weight

these post-enactment comments might be worth.

tte eer ne

- 16a -

MSW load was non-recyclable. So it is undebatable that at

least ten to twenty percent of everything AGG collects,

thousands of tons, is “garbage and refuse.” This is a lot of

garbage, and we cannot accept the argument that Congress

precluded local government entities from regulating its

collection. Absent a “clear and manifest” purpose, if not an

explicit instruction, from Congress, we decline to divest state

and local governments of this area of regulation, crucial to

health and safety. To the contrary, “Congress’ intent not to

preempt the area of solid waste collection is unambiguous.

Our decision is consistent with a persuasive decision

of the California Court of Appeal that parallels this case. See

Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling,

Inc., 110 Cal. Rptr. 2d 708, 714 (Cal. Ct. App. 2001). That

court ruled that the FAAAA does not preempt local regulation

of the collection of MSW loads. We agree with the court that

“[i]t verges on the inconceivable that Congress had such an

intent. There is nothing in the language or legislative history

of [§ 601(c) of the FAAAA] giving the least credence to [the

MSW hauler’s] claim that Congress intended to make itself

the sole authority in a field where local authority has been

traditionally accepted as preeminent.” /d. at 717.

[9] We conclude that Congress did not show a “clear

and manifest” intent to end state and local regulation of

‘garbage and refuse collection merely because the load

includes some recyclable material. That the load includes a

- 17a-

significant amount of garbage is sufficient to permit local

regulation.’

CONCLUSION

[10] We hold that the FAAAA does not preempt

local regulation of the collection of mixed solid waste. We

reverse the district court’s decision, vacate the permanent

injunction, and remand for further proceedings consistent with

this opinion.

REVERSED, VACATED, and REMANDED.

* We express no opinion whether Congress intended to

preempt regulation of source separated recyclables.

- 18a-

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

A.G.G. ENTERPRISES, INC., an

Oregon Corporation,

Plaintiff, Civil No. 99-1097-KI

v.

OPINION

WASHINGTON COUNTY,

OREGON and CITY OF

BEAVERTON, OREGON,

Defendants

Russell M. Allen

William G. Sheridan, Jr.

Allen, Sheridan & Kreitzberg, LLP

1099 S.W. Columbia, Suite 425

Portland, Oregon 97201

Lawrence R. Davidson

1850 Benjamin Franklin Plaza

One S.W. Columbia Street

Portland, Oregon 97258

Attorneys for Plaintiff A.G.G. Enterprises, Inc.

John M. Junkin

Renee E. Roghauge

Jason H. Eaton

Bullivant Houser Bailey, P.C.

300 Pioneer Tower

888 S.W. Fifth Avenue

Portland, Oregon 97204-2089

Attorney for Defendants

- and -

- 19a -

Barnes H. Ellis

Stephen A. Redshaw

Stoel Rives, LLP

900 S.W. Fifth Avenue, Suite 2600

Portland, Oregon 97204-1268

Attorney for Intervenor Oregon Refuse and

Recycling Association

KING, Judge:

Plaintiff A.G.G. Enterprises, Inc (“AGG”) brought

this action against defendants Washington County, Oregon

(the “County”), and the City of Beaverton, Oregon (the

“City”), seeking to have chapter 8.04 of the Washington

County Code on Solid Waste Control’ and Chapter 4.08 of the

City of Beaverton Code on Solid Waste Control declared

unenforceable for three reasons: (1) preemption by the

Federal Aviation Administration Authorization Act of 1994

(“FAAAA”); (2) violation of the Commerce Clause; and (3)

violation of the Equal Protection Clause. I conclude that the

ordinances as enforced against AGG are preempted by the

FAAAA.

A similar case, Woodfeathers, Inc. v. Washington

County, Oregon, CV96-257-HA, was heard by the Honorable

' This ordinance was amended in December 1999, after AGG

filed this action. AGG seeks only declaratory and injunctive

relief. The parties agree that the court’s analysis:should be

focused on the new version of the ordinance.

- 20a -

Ancer Haggerty. Judge Haggerty issued an injunction after

holding that the County ordinance was preempted by the

FAAAA and violated the dormant Commerce Clause. The

Ninth Circuit reversed and ordered the case dismissed without

prejudice, holding that the court should have abstained

because of an action pending in state court. Woodfeathers

180 F.3d 1017 (9th Cir. 1999). AGG operated in the County

while the injunction was in place but ceased operations there

after the Ninth Circuit decision. It filed this action a few

months later.

A two-day court trial was held. Having considered

the arguments of counsel, testimony of witnesses, and other

evidence introduced by the parties, | make the following

findings of fact and conclusions of law.

FACTS

AGG is in the business of hauling mixed solid waste

(“MSW”) and source-separated recyclable materials, typically

contracting with businesses and construction companies to

provide drop boxes at their sites. AGG does not provide

services to residential customers, except in very limited cases

which are not an issue in this action. It has the authority to

transport property in interstate commerce under a Federal

Highway Administration permit and an Oregon Department of

Transportation motor carrier permit. AGG is headquartered in

Multnomah County, which only regulates this type of

business to the extent that a license is required of the hauler

-2la-

but the number of haulers is not limited and they are not

confined to particular geographic areas. AGG wishes to

expand operations to unincorporated Washington County and

the City of Beaverton’, which enacted the ordinances at issue. |

AGG brings its MSW loads to a material recovery

facility (“MRF”) and drops the load on the ground in a sorting

area. MRF employees then sort, separate, and remove the

recyclable material, primarily wood, plastic, metal, drywall,

cardboard, glass, and concrete. The MRF then transports the

remaining material, namely the “garbage,” to local transfer

stations for eventual transport to landfills.

East County Recycling, Inc. (“ECR”), the MRF used

by AGG, recycles fifty to sixty percent of all loads delivered

to its facilities by AGG and others. ECR sells recycled wood

materials as hog fuel or mulching materials, recycled metals

for use in steel and other metal manufacturing, and cardboard

for use in manufacturing paper. Ceramics, concrete, asphalt,

and glass are ground into a base rock product sold for use on

highway construction projects. The MSW loads vary from

ten to ninety percent recyclable material. It is possible for a

MSW load to contain nothing recyclable but this is not a

common occurrence.

AGG charges its customers, also known as generators,

? Unless there is a reason to differentiate between the political

entities or their geographic areas, I will refer to them

collectively as Washington County.

- 22a -

a hauling fee and possibly a tipping fee. The tipping fee is the

amount charged to AGG by the facility where AGG leaves the

load and is passed on from AGG to its customer. Some

Washington County landfills charge $40 per ton tipping fee;

the Metro landfill charges $68 per ton; ECR charges $62.50

per ton. Some source-separated recyclable loads generate a

rebate from the recycler where AGG takes them. AGG passes

this rebate back to its customer. Metal, cardboard, and glass,

depending on the market conditions, can generate a large

enough rebate to more than cover the hauling fee, resulting in

net money paid to the generator for selling recyclables. ECR

keeps the money it makes from selling the recyclables it

reclaims from the MSW loads.

Some of AGG’s customers have _ contractual

provisions to recycle a certain amount of their waste

materials. Use of AGG, and its use of the MRF, is one way to

comply. Although the customers could separate the

recyclables at their own sites, it would require paying

employees to do so and dedicating space for multiple drop

boxes to contain the separated recyclables.

Some of AGG’s customers in Multnomah County

would also like to use its services in Washington County.

These customers prefer to use a single hauler to reduce the

interactions required to deal with numerous haulers in the

separate geographic areas in which they do business. The

customers testifying were also happy with AGG’s prices and

- 23a-

service level.

AGG also hauls source-separated recyclable materials

interstate between Oregon, Idaho, and Washington. Although

this is a regular part of AGG’s business, it is not the

company’s primary focus or primary source of revenue.

The ordinances make it unlawful for anyone to collect,

store, transport or dispose of any waste’ or solid waste in their

areas of jurisdiction without receiving a certificate, license, or

permit*, or to conduct the. activities in service areas not

covered by the certificate. WCC 8.04.120; BC 4.08.030. To

receive a County certificate under the new ordinance for an

area the applicant is not serving, the applicant must show that

the service area has not been allocated to another, or is not

being served by the certificate holder, or is not being

adequately served by the certificate holder and there is a

substantial demand from customers within the area for a

change of service. WCC 8.04.170. The City ordinance

allows nonexclusive licenses for each service area, BC

4.08.040, but the City has never awarded more than one

license for a geographic area. The franchisees are required to

> Waste is defined as “material that is no longer useable or

wanted by the source of the material, which material is to be

utilized or disposed by another.” “Utilized” includes

recycling. WCC 8.04.020(Q).

* The Washington County Code and Beaverton Code use

slightly different terminology although the idea is the same. I

will use the words “certificate” or “franchise” unless it is

necessary to distinguish.

- 24a -

service both residential and commercial customers in their

geographic areas. Civil penalties can be assessed for

violations.

The State of Oregon has a goal of recovering at least

fifty percent from the general solid waste stream by January 1,

2000. ORS 459A.010(1). The franchise process and the

ordinances are the City and County’s way of supporting that

goal by providing service at a reasonable cost to all residential

and commercial customers.

Neither the County nor the City has awarded a new

franchise since the ordinances were put in place, in 1969 in

the case of the County and over twenty years in the case of the

City. The ordinances contain no mechanism to periodically

award franchises anew after an open bidding process. A few

franchises have been transferred when a hauler was

purchased.

AGG does not hold any of the certificates required by

the ordinances. When it tried to expand its business from

Multnomah to Washington County, AGG received citations

from both the County and the City. After the Woodfeathers

| decision was reversed, the City informed AGG that it would

not take further action on AGG’s application for a license.

AGG has not applied for a certificate from the County.

Gail Woodworth has been openly engaged in

transporting construction debris in Washington County for

over twenty years. His company hauls both source-separated

- 25a -

recyclables and MSW loads. Woodworth has neither of

defendants’ solid waste certificates but has never been

challenged by the County or City about his right to transport

these loads. Woodworth was the president of the Oregon

Dump Truck Association in 1987-1988 and knows of none of

its several hundred members operating without certificates

who have been challenged by a government entity. Because

of staff limitations, the County’s enforcement mechanism is

driven by complaints. Very few complaints about

unauthorized drop boxes have ever been received by the

County. In particular, the County has never received a

complaint about a dump truck operator hauling MSW loads

without authorization.

Individual haulers are concerned that their established

relationships with customers, and their profitability, will be

jeopardized if AGG, and presumably others, do business in

the County and the City by “cream-skimming” the most

profitable jobs, those for commercial customers. The haulers

are required by their certificates to also service the less

profitable residential customers within their exclusive

territories. All rates are regulated so that services the County

and the City deem essential, such as less profitable residential

recycling, are provided to all customers while haulers

maintain a reasonable profit margin.

- 26a -

; DISCUSSION®

; I. —— Justiciability of the Case

A. Standing

:

i Defendants claim that the court should not hear this

1 case for several reasons: (1) AGG lacks standing; (2) AGG’s

claims are not ripe for review; and (3) the court should

abstain.

To meet the standing requirements of Article III, “a

plaintiff must allege personal injury fairly traceable to the

defendant’s allegedly unlawful conduct and likely to be

redressed by the requested relief. The injury must be distinct

and palpable [,] not merely speculative, and the harm must be

imminent and not hypothetical.” Houston v. Roe, 177 F.3d

901, 907 (9th Cir. 1999) (citation omitted), cert. denied, 120

S. Ct. 1168 (2000).

AGG has standing to raise its claims. It has been cited

under both ordinances at issue and is asking this court to

prohibit enforcement of the ordinances so that it may continue

expanding its business into Washington County. Thus, its

injury would be redressed by the requested relief. Although

AGG is not currently operating in the County or the City, and

consequently could not be cited for its activities today, the

harm is not hypothetical or speculative. Based on their past

3 * Defendants and the various intervenors split the briefing

: _task and join the arguments presented by the others. I will

refer to all as defendants unless it is necessary to distinguish.

:

-27a-

conduct, the City and the County intend to enforce the

ordinances. There is no requirement that AGG continue to

incur civil penalties while this case is adjudicated.

B. Ripeness

Defendants also contend that this case is not ‘ripe for

review because AGG has not applied for a certificate from the

County, failed to complete the application process with the

City, and failed to exhaust its administrative remedies.

Defendants also contend that withholding review will not

result in any direct and immediate hardship to AGG.

Ripeness is determined by a two-prong test: (1) the

fitness of the issue for judicial decision; and (2) the hardship

to the parties of withholding court consideration.

Municipality of Anchorage v. United States, 980 F.2d 1320,

1323 (9th Cir. 1992). Review is postponed if the “systemic

interest in postponing adjudication due to lack of fitness

outweighs the hardship on the parties created by

postponement.” Id.

I first note that if AGG is correct that the ordinances

are unconstitutional or are preempted by federal law, it should

not be required to apply for a certificate to challenge the

ordinances in this court. This is a different situation than if

the ordinances were valid but the governments were illegally

withholding certificates. For the same reason, a more

developed evidentiary record is not relevant to the questions

that this court will answer. The hardship on AGG of

- 28a -

withholding review is that its business activities, and

subsequent profits, are restricted. I disagree with defendants’

contention that postponing review will have no effect on

AGG’s day-to-day affairs. Applying defendants’ argument, I

do not see how this action would ever be considered ripe

because AGG would never suffer a hardship.

I also conclude, based on the application process with

the City, and both governments’ failures to ever award new

certificates except through ownership transfer, that it would

have been futile for AGG to pursue applications with either

ee ed a avin sary joe o

the City or the County. Moreover, even if AGG had been

awarded a geographic area in which to do business, it would

still have been prohibited from working in all parts of the City

and unincorporated Washington County, as it wishes to do.

Because there is a sufficient factual record for the issues

before the court, I conclude that the case is ripe for judicial

review.

o. Abstention

Finally, defendants contend that the court should

abstain under the Burford abstention doctrine from

adjudicating AGG’s claims because my ruling could impair

the operation of the City and County’s comprehensive

regulatory schemes.

The Supreme Court began explaining the Burford

abstention doctrine in Burford v. Sun Oil Co., 319 U.S. 315,

332 (1943), when discussing its reluctance to decide questions

- 29a -

turning on largely local issues.

Where timely and adequate state-court review

is available, a federal court sitting in equity

must decline to interfere with the proceedings

or orders of state administrative agencies: (1)

when there are difficult questions of state law

bearing on policy problems of substantial

public import whose importance transcends

the result in the case then at bar; or (2) where

the exercise of federal review of a question in

a case and in similar cases would be disruptive

of state efforts to establish a coherent policy

with respect to a matter of substantial public

concern.

New Orleans Public Service, Inc. v. Council of New Orleans,

491 U.S. 350, 361 (1989) (internal quotation omitted). The

Ninth Circuit has added additional requirements before

Burford abstention is justified:

1) the state must have concentrated suits

involving the local issue in a particular court;

2) the federal issues must not be easily

separable from complicated state law issues

with which the state courts may have special

competence; and 3) federal review might

disrupt state efforts to establish a coherent

policy.

Fireman’s Fund Insurance Co. v. Qua h, 87

F.3d 290, 296 (9th Cir. 1996).

I fully agree that the waste control systems in the

County and the City are issues of great local concern. AGG

claims, however, that the government entities are

overstepping their authority and violating federal law and the

- 30a -

federal Constitution. The issues before me do not turn on

state law. This is true even though, if AGG prevails, many

state and local government laws pertaining to solid waste may

have to change. “The state’s attempts to establish a coherent

policy are of little consequence, as it is the constitutionality of

the state’s efforts to do precisely this which is currently in

question.” Id. at 297. Although AGG could have its claims

heard in state court, federal court is also appropriate. I decline

to abstain.

Il. Preemption

Under Article VI of the Constitution, the laws of the

United States are the supreme law of the land and any

conflicting states law is without effect. Southern Pacific v.

Oregon PUC, 9 F.3d 807, 810 (9th Cir. 1993). Congress may

preempt state laws by explicitly defining the extent to which

preemption occurs. Id. When determining if a state statute is

preempted by federal law, the “sole task is to ascertain the

intent of Congress.” California Federal Sav. and Loan Ass’n

v. Guerra, 479 U.S. 272, 280 (1987).

Congress acted to deregulate the motor carrier

industry when it enacted the Federal Aviation Administration

Act of 1994 (“FAAAA”). The Act contains a preemption

provision:

(1) General rule. . . . [A] State, political

subdivision of a State, or political

authority of 2 or more States may not

-3la-

enact or enforce a law . . . related to a

price, route, or service of any motor

carrier . . . or any motor private carrier,

broker, or freight forwarder with respect to

the transportation of property.

49 U.S.C. § 14501(c). The difficulty lies in the fact that the

term “property” is not defined in the Interstate Commerce

Act.

A. Motor Carrier.

Defendants contend that AGG is neither a motor

carrier nor a motor private carrier and, thus, the FAAAA

cannot apply to it. Defendants contend that under the

“primary business test” distinguishing between the two, AGG

would be a motor private carrier. Since the trips at issue are

not interstate commerce, however, defendants contend that

AGG does not fulfill this prong of the motor private carrier

definition.

The Interstate Commerce Commission (“ICC”) does

not have jurisdiction over the transportation of property by

motor vehicle when the property is transported by a person

engaged in a business other than transportation and the

transportation is within the scope of and furthers a primary

business of the person other than transportation. Nuclear

Diagnostic Laboratories, Inc., 131 M.C.C. 578, 581 (1979);

American Trucking Assoc. v. 1.C.C., 672 F.2d 850, 851 (11th

Cir. 1982). Several factors are considered.

I conclude that under the primary business test, AGG

4

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;

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- 32a -

is a motor carrier and not a motor private carrier. The terms

written on the back of AGG’s standard contract state that

AGG acquires title to waste materials once they are loaded

onto its trucks. Another term, however, differentiates waste

materials from recyclables. It is undisputed that AGG passes

tipping fees through to the customer and returns to customers

rebates which are obtained from the source-separated loads.

Although there are no rebates from the MSW loads, I am

unwilling to compartmentalize AGG’s business to that extent.

AGG does not perform any service other than transportation.

It does not store the loads, does not consolidate partial loads

from different customers before transporting to the MRF or

another recycler, and does not perform any type of service on

the load except to transport it to a proper disposal facility.

This is different from the trucker in Nuclear Diagnostic which

sold containers and other materials to its customers,

conducted monitoring tests on the loads of radioactive waste,

sealed containers, stored loaded containers, and consolidated

containers before transporting to the final disposal sites. Id. at

583. AGG’s primary business is to transport the loads from

the customer site to a disposal facility, nothing more.

Motor carrier is defined as “a person providing motor

vehicle transportation for compensation.” 49 U.S.C. §

13102(12). AGG fits this description. Accordingly, the

FAAAA can apply to it.

- 33a-

B. Property

As mentioned above, the FAAAA preempts laws

relating to the transportation of property but does not define

property. Defendants contend that the MSW loads are not

property, and thus can be regulated locally, because these

loads have a negative value to the generator, AGG’s

customers, who must pay to have them hauled away.

The ICC analyzed the meaning of property in

conjunction with the Interstate Commerce Act in Joray

Trucking Corp., 99 M.C.C. 109 (1995). A trucker sought a

certificate to haul rock and debris generated from excavations

and building demolitions. The ICC concluded that the debris,

which would be disposed of as fill for wasteland, had a

negative value as a commodity because it was not purchased

from the contractors seeking its removal. Id. at 110.

A court may look to the legislative history for

evidence of congressional intent if the statute is ambiguous.

United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999).

Although the lack of statutory definition does not require a

finding of ambiguity, id., the parties have offered several

definitions of property. One ordinary meaning is: “the right to

possess, use, and dispose of something; ownership.”

Webster’s New World College Dictionary 1078 (3rd ed.

1996).

When enacting the FAAAA, Congress noted Joray’s

definition. The House Conference Report states:

Reset ast 9

egieh

- 34a -

The conferees further clarify that the motor

carrier preemption provision does not preempt

State regulation of garbage and refuse

collectors. The managers have been informed

by the Department of Transportation that

under ICC case law, garbage and refuse are

not considered “property”. Thus garbage

collectors are not considered “motor carriers

of property” and are thus unaffected by this

provision.

H.R. Conf. Rep. No. 103-677, at 208 (1994), reprinted in

1994 U.S.C.C.A.N. 1715.

After the FAAAA was enacted, a member of the

House of Representatives introduced into the record a letter

from the general counsel of the ICC commenting on whether

the act preempts state economic regulation of the curbside

collection of recyclables. The counsel stated that garbage and

refuse are not considered property under the relevant statutes,

and noted the distinction between the curbside collection of

recyclables and recyclables in commercial quantities,

referring to Transportation of Waste Products for Reuse, 114

M.C.C. 92 (1971). 140 Cong. Rec. E2204-03 (October 7,

1994) (extension of remarks by Hon. Norman Mineta).

In Waste Products, the ICC held that waste materials

purchased for use in recycling programs are property under

the Act. The ICC noted that its jurisdiction would cover both

the transportation from reclamation centers to recycling plants

and then from the recycling plants to the manufacturing

plants. In the ICC’s view, the recycling plants provide

- 35a -

processing, such as grinding or crushing, to ready the

commodity for the manufacturing process.

The explanation in Waste Products clearly applies to

AGG’s transportation of source-separated loads from the

generator to the recycling plants, such as Smurfit. The

transport of MSW loads also falls within the reasoning in

Waste Products. The separation of the recyclables at the MRF

is similar to the grinding of glass into cullet at a recycling

center. Both processes are necessary to prepare the

commodity for reentry into the manufacturing stream.

I conclude that the MSW loads have an economic

value even though they are being discarded by the generators.

ECR’s business is based on the economic value inherent in

the material. I see no reason to restrict the determination of

economic value to the generators’ view rather than to the

manufacturing stream as a whole. There was also testimony

that the paper mills could not run without the ability to

purchase recycled paper. Further, some of the generators

have contractual obligations to recycle some of their waste.

Although it would be difficult to quantify the economic value

flowing from compliance with this obligation, a value exists

as part of the reason that the contracts are awarded.

I also disagree with defendants’ position that the

determination of what constitutes property is made solely on

the basis of economic value. The ordinary meaning of

property includes the concept of ownership and its related

- 36a -

obligations, specifically here, to properly dispose of the

material rather than dumping it in a manner which might be

inexpensive and easy but illegal.

My choice of a broader definition of property is

supported by Nuclear Diagnostic Laboratories, Inc. 131

M.C.C. 578 (1979). The ICC reversed itself and ultimately

concluded that rz ‘‘oactive waste material destined for burial

was property under the act:

Our cismissal of the application in the

instant proceeding was based upon our

conclusion that radioactive waste materials

destined for burial do not constitute “property”

because they lack economic value. Upon

further reflection, we conclude that the

economic value of hazardous materials,

including radioactive waste destined for

burial, should not be the sole criterion for

determining whether these commodities are

“property” subject to the general jurisdiction

of the Commission. “Property” is not defined

in the Interstate Commerce Act and, as we

noted in our prior report, the word is subject to

many different meanings. “Property”

connotes ownership as well as_ value.

Something that is owned can be “property”

notwithstanding its lack of economic value.

Id. At 580.

In summary, I conclude that both the source-separated

- 37a-

loads® and the MSW loads, when collected from commercial

and industrial accounts, are “property” as the word is used in

the FAAAA. The local or state regulation of these loads is

thus preempted by the FAAAA, including the two ordinances

at issue.

III. Dormant Commerce Clause

AGG contends that the ordinances are

unconstitutional barriers to interstate commerce. It contends

that the ordinances are a direct burden on interstate commerce

because they do not permit AGG to transport loads from the

County and the City in interstate commerce. Alternatively,

AGG contends that the indirect burden on_ interstate

commerce is not balanced by the local benefits provided by

the ordinances.

Two types of state regulations might burden interstate

commerce: (1) those that directly burden interstate commerce

or that discriminate against out-of-state interests; and (2)

those that burden interstate transactions only incidentally.

Regulations in the first category are unconstitutional unless

the state can demonstrate that a legitimate local interest

unrelated to economic protection is served by the regulation

and no less discriminatory alternative exists. Regulations in

° | realize that defendants are currently not trying to regulate

the source-separated loads with a fair market value because of

an exemption under state law. ORS 459A.075. Because all

of the evidence was presented, however, I will decide. the

federal questions concerning these loads also.

- 38a -

the second category are analyzed under the Pike balancing

test, Pike v. Bruce Church, 397 U.S. 137 (1970). Kleenwell

Biohazard Waste v. Nelson, 48 F.3d 391, 395 (9th Cir.), cert.

denied, 515 U.S. 1143 (1995).

If the primary purpose of the regulation is to regulate

interstate commerce or if it favors in-state interests over out-

of-state interests, it is generally in the first category.

Regulations in the second category are those designed to

address a legitimate local concern and only incidentally affect

interstate commerce. The party challenging the validity of the

regulation has the burden of demonstrating that it has a

discriminatory purpose or effect. Id. at 398 and n.8.

In Kleenwell, the challenged regulation required all

solid waste collection companies within the state to obtain a

certificate of public convenience before collecting waste. The

plaintiff solid waste collector specialized in medical waste.

The court concluded the regulation at issue fell into the

second category because it addressed a legitimate local

concern, the safe disposal of solid waste, and it allowed both

in-state and out-of-state firms to obtain the certificate. Id. at

398. After applying the Pike test, the court upheld the

regulatory scheme.’ Id. at 399.

In another solid waste case, C & A Carbone, Inc. v.

Town _ of Clarkstown, New York, 511 U.S. 383 (1994), the

” The plaintiff only challenged the state’s ability to impose a

certification requirement and did not challenge the state’s refusal to

grant it a certificate.

- 39a -

Supreme Court determined that the challenged ordinance

directly regulated interstate commerce and applied the test

from the first group above. The ordinance was a flow control

ordinance which required all solid waste in the town, whether

generated there or brought there for processing, to be

processed at a designated transfer station before leaving the

town. The Court determined that the ordinance discriminates

against interstate commerce because it drove up costs for out-

of-state interests who disposed of their waste with haulers

located in the town and it deprived out-of-state businesses

access to a local market. “The essential vice in laws of this

sort is that they bar the import of the processing service. . .

[T]he offending laws hoard a local resource [here, solid

waste]. . . for the benefit of local business that treat it.” Id. at

392. The law was struck down.

The collection and disposal of solid waste is

considered primarily a function of state and _ local

governments. Kleenwell, 48 F.3d at 398. The Supreme Court

has rejected the contention that any regulation affecting

particular companies engaged in interstate commerce

necessarily represents a direct burden. Id. at 397, citing

Exxon Corp. v. Governor of Maryland, 437 U.S. 117 (1978).

The ordinances before me do not have a primary purpose of

- 40a -

regulating interstate commerce. Out-of-state interests are not

discriminated against. It is true that the haulers in place when

the ordinances were enacted were given an advantage in

retaining their territories. Those haulers, however, could have

been out-of-state firms. Although no one is getting a new

territory and territories have not been reassigned except

through sale of the original hauler, both in-state and out-of-

state haulers can compete for the purchase of an existing

franchise. Currently, Waste Management, a_ national

corporation, owns several of the certificates. Accordingly, I

conclude that the ordinances burden interstate commerce only

indirectly and the Pike test should be used to analyze their

constitutionality.

The Pike balancing test recognizes that

incidental burdens on interstate commerce

may be unavoidable when a State legislates to

safeguard the health and safety of its people.

Accordingly, under the Pike test, “[w]here the

statute regulates even-handedly to effectuate a

legitimate local public interest, and its effects

on interstate commerce are only incidental, it

will be upheld unless the burden imposed

upon such commerce is clearly excessive in

relation to the putative local benefits.”

Kleenwell, 48 F.3d at 399 (internal quotation and citation

omitted, emphasis in the original, quoting Pike, 397 U.S. at

142). The party challenging the regulation must establish that

the burden on interstate commerce clearly outweighs the local

benefits arising from the regulation. Id.

-4la-

The local interest being protected by the ordinances is

to provide safe, affordable and efficient waste disposal for all

residential and commercial customers within Beaverton and

unincorporated Washington County. This is a legitimate area

of local concern and implicates public health and safety

issues.

AGG relies on U&I Sanitation, 205 F.3d 1063, 2000

WL 199230 (8th Cir. 2000), which analyzed a flow control —

solid waste ordinance requiring all garbage collected within

the city limits, except garbage destined for out-of-state

disposal, to be processed at the city-owned transfer station

that provided no recycling. Under the Pike test, the court

concluded that the ordinance violated the Commerce Clause

because of its effect in removing recyclables from the

manufacturing stream. Although the effect of one city’s

ordinance might be minimal, the court considered the effect if

all cities enacted similar ordinances, consequently

substantially diminishing the market in recyclables. Id. at *4-

>.

The ordinances before me are not flow control

ordinances. The incidental burden that I find in them is that

new companies, such as AGG, have a difficult, if not

impossible, time entering the market in Beaverton or

unincorporated Washington County. Although franchises

have been purchased, this is not a common event. Moreover,

the ordinances limit the hauler to its franchised geographic

- 42a -

area rather than allowing county-wide operations. The new

companies, particularly AGG, might be more willing to take

the MSW loads to a MRF rather than to a landfill. This would

increase the available recyclables and have an incremental

effect on interstate commerce. There is nothing in the

ordinances, however, which prevents the franchisees from

utilizing a MRF. It appears not to be happening because of a

lack of MRFs in Washington County and no financial

incentives to drive the MSW loads the extra distance for

disposal at a MRF.

U&I_ Sanitation also considers less burdensome

alternatives in the balance. Id. at *4. Portland and

Multnomah County do not regulate commercial hauling by

dividing the area into exclusive franchises. Haulers must be

licensed but there was no evidence presented that licenses are

limited if the basic requirements are met. AGG contends that

this method should be used in defendants’ geographic areas.

Certainly this is a possible alternative. One of

_ defendants’ concerns, however, was to provide affordable

service to isolated rural customers. No evidence was

presented comparing the population densities of Washington

and Multnomah Counties. Portland is densely populated and

would not present that issue.

After balancing the local public interest and the

effects on interstate commerce, I conclude that the burden

imposed upon interstate commerce is not clearly excessive in

re

- 43a -

relation to the putative local benefits. Accordingly, I find that

the ordinances do not violate the Commerce Clause.

IV. Equal Protection Clause

Because I concluded above that the ordinances are

preempted by the FAAAA, I decline to address AGG’s final

constitutional argument concerning violation of the Equal

Protection Clause.

V. Injunctive Relief

Now that AGG has prevailed on the merits, I have the

discretion to grant a permanent injunction enjoining

defendants from enforcing the ordinances against AGG.

Permanent injunctive relief is only appropriate if plaintiffs

will suffer irreparable injury and monetary damages will not

adequately compensate them for their injuries. Walters v.

Reno, 145 F.3d 1032, 1048 (9th Cir. 1998), cert. denied, 526

U.S. 1003 (1999).

While the injunction was in place during the

Woodfeathers case, AGG expanded its business into the

County and City. It ceased operations there when that

injunction was dissolved. AGG’s customers want to hire it

for their work in those regulated areas. I believe that if AGG

attempted to work there without protection of an injunction,

haulers would continue to file complaints and AGG would

continue to be cited under the ordinances.

Thus, we have a company which has been in business

for many years, which has shown the ability to expand its

- 44a -

business into defendants’ geographic areas, and which has

current customers willing to hire it to work in those areas.

Prohibiting AGG from working in defendants’ geographic

areas without paying fines and associated legal fees, when

defendants are overstepping their authority, is an irreparable

injury. Moreover, there is no reasonable way to calculate the

monetary damages because the injury would continue

indefinitely into the future. An injunction is an appropriate

remedy.

CONCLUSION

Chapter 8.04 of the Washington County Code on

Solid Waste Controi and Chapter 4.08 of the City of

Beaverton Code on Solid Waste Control, when enforced to

prohibit AGG from transporting source-separated loads and

mixed solid waste loads, are preempted by the Federal

Aviation Administration Authorization Act of 1994, 49

U.S.C. § 14501(c), because they are related to service by a

motor carrier with respect to the transportation of property.

A permanent injunction will be put in place. AGG

should circulate a proposed injunction to defendants and

intervenors within a week from the date of this opinion. If the

parties can agree on language, a stipulated permanent

injunction should be submitted within three weeks. If the

parties cannot agree, each should submit a proposed

injunction and/or their objections to the other proposed

injunctions, within three weeks.

Fe ee nS ee ea Lee a ee

- 45a -

DATED this 6th day of April, 2000.

GARR M. KING

United States District Court Judge

- 46a -

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

A.G.G. ENTERPRISES, INC., an __)

Oregon Corporation, )

)

Plaintiff, ) Civil No. 99-1097-KI

V. )

) PERMANENT

WASHINGTON COUNTY, ) INJUNCTION

OREGON and CITY OF )

BEAVERTON, OREGON, )

)

Defendants. )

)

On April 6, 2000, this Court issued an Order and

Opinion in the above-captioned matter. Consistent with

this Court’s opinion, the Court orders as follows:

~~~ 1. On April 6, 2000, this Court filed an Opinion

which declared that Chapter 8.04 of the Washington

County code on Solid Waste Control and Chapter 4.08 of

the City of Beaverton Ordinance on Solid Waste Control,

when enforced to prohibit plaintiff A.G.G. Enterprises, Inc.

from transporting source-separated loads of recyclable

materials and mixed loads of solid waste and recyclable

materials, are preempted by the Federal Aviation

Administration Authorization Act of 1994, 49 U.S.C. §

14501(c), because they are regulating service performed by

- 47a -

a motor carrier with respect to the transportation of

property.

2. Consistent with that opinion, Washington

County, Oregon is permanently enjoined from enforcing its

Solid Waste Control Code to the extent of imposing

substantive standards affecting the price, route or service of

plaintiff A.G.G. Enterprises, Inc. in the transport of source-

separated loads of recyclable materials and mixed loads

containing solid waste and recyclable materials for single

generator non-residential accounts from, in and through

Washington County to manufacturers, recycling facilities

or material recovery facilities, but not to a transfer station

or landfill.

3. The City of Beaverton is permanently enjoined

from enforcing its Solid Waste Control Code to the extent

of imposing substantive standards affecting the price, route

or service of plaintiff A.G.G. Enterprises, Inc. in the

transport of source-separated loads of recyclable materials

and mixed loads containing solid waste and recyclable

materials for single generator non-residential accounts

from, in or through the City of Beaverton to manufacturers,

recycling facilities or material recovery facilities, but not to

a transfer station or landfill.

- 48a -

4. For purposes of this injunction, multi-family

accounts such as apartment complexes or condominiums

are considered to be residential accounts.

5. Pursuant to LR 54.1 and 54.4, plaintiff shall file

and serve on all parties its Bill of Costs, no later than 14

days after the entry of this Judgment.

IT IS SO ORDERED.

DATED this 9th day of May, 2000.

GARR M. KING

United States District Court Judge

- 49a -

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

A.G.G. ENTERPRISES, INC., an

Oregon Corporation,

Plaintiff, Civil No. 99-1097-KI

V.

)

)

)

)

)

) JUDGMENT

WASHINGTON COUNTY, )

CITY OF BEAVERTON, )

OREGON REFUSE & )

RECYCLING ASSOCIATION, __)

)

)

Defendants.

)

KING, Judge:

This action came on for trial before the Court,

Honorable Garr M. King, District Judge, presiding, and the

issues having been duly tried and a decision having been duly

rendered;

IT IS ORDERED AND ADJUDGED that Chapter

8.04 of the Washington County Code on Solid Waste Control

and Chapter 4.08 of the City of Beaverton Ordinance on Solid

Waste Control, when enforced to prohibit plaintiff A.G.G.

Enterprises, Inc., from transporting source-separated loads of

recyclable materials and mixed loads of solid waste and

recyclable materials, are preempted by the Federal Aviation

Administration Authorization Act of 1994, 49 U.S. C. §

14501(c), because they are regulating service performed by a

- 50a -

motor carrier with respect to the transportation of property,

and that plaintiff A.G.G. Enterprises, Inc., recover its costs of

action.

IT IS SO ORDERED.

DATED this 10th day of May, 2000.

GARR M. KING

United States District Court Judge

s

-5la-

49 U.S.C. § 10733. Rates for transportation of

recyclable materials (repealed)

(a) A motor carrier of property providing

transportation subject to the jurisdiction of the

Commission under subchapter II of chapter

105 of this title may provide transportation of

recyclable materials without charge or at a

reduced rate.

(b) In this section, “recyclable materials”

means waste products for recycling or reuse in

the furtherance of recognized pollution control

programs.

(Added Pub. L 96-296 § 32(a), July 1,

1980, 94 Stat. 824.)

49 U.S.C. § 13507. Mixed loads of regulated and

unregulated property

A motor carrier of property providing

transportation exempt from jurisdiction under

paragraph (6), (8), (11), (12), or (13) of

section 13506(a) may transport property under

such paragraph in the same vehicle and at the

same time as property which the carrier is

authorized to transport under a registration

issued under section 13902(a). Such

transportation shall not affect the unregulated

status of such exempt property or the

regulated status of the property which the

carrier is authorized to transport under such

registration.

- 52a -

49 U.S.C. § 13709. Procedures for resolving

claims involving unfiled, negotiated

transportation rates

(h) Claims’ involving small-business

concerns, charitable organizations, and

recyclable materials. —

(1) In general.—Notwithstanding

subsections (b), (c), and (d), a person from

whom the additional legally applicable and

effective tariff rate or charges are sought shall

not be liable for the difference between the

carrier’s applicable and effective tariff rate

and the rate originally billed and paid—

(A) if such a person qualifies as a small-

business concern under the Small Business

Act (15 U.S.C. 631 et seq.).

(B) if such a person is an organization

which is described in section 501(c)(3) of the

Internal Revenue Code of 1986 and exempt

from tax under section 501(a) of such Code, or

(C) if the cargo involved in the claim is

recyclable materials.

(2) Recyclable materials defined.—In this

subsection, the term “recyclable materials”

means waste products for recycling or reuse in

the furtherance of recognized pollution control

programs.

- 53a-

49 USC. § 14501. Federal authority over

intrastate transportation

(c) Motor carriers of property. —

(2) Matters not covered. Paragraph 1—

(C) does not apply to the authority of a

State or a political subdivision of a State to

enact or enforce a law, regulation, or other

provision relating to the price of for-hire

motor vehicle transportation by a tow truck, if

such transportation is performed without the

prior consent or authorization of the owner or

operator of the motor vehicle.

- 54a -

AMICI CURIAE BRIEFS

Filed on behalf of petitioner A.G.G. Enterprises, Inc.:

American Forest & Paper Association

Represented by:

Paul S. Cosgrove

Jay W. Beattie

Lindsay, Hart, Neil & Weigler, LLP

1300 S.W. 5th Avenue, Suite 3400

Portland, Oregon 97201-5696

Association of California Recycling Industries (ACRI),

Californians Against Waste (CAW), California Resource

Recovery Association (CRRA), Grass Roots Recycling

Network (GRRN), Independent Recyclers Council (ICR), and

the Northern California Recycling Association (NCRA)

Represented by:

John Douglas Moore

Henn, Etzel and Moore, Inc.

1970 Broadway, Suite 950

Oakland, California 94612

Filed on behalf of respondents/intervenors:

State of Oregon

Represented by:

Hardy Myers

Michael D. Reynolds

Robert B. Rocklin

Assistant Attorney General

400 Justice Building

Salem, Oregon 97301-4096

- 55a -

Washington Refuse & Recycling Association

Represented by:

James K. Sells

Ryan Sells Uptegraft, Inc. P.S

Washington Refuse & Recycling Association

9657 Levin Rd. N.W., Suite 240

Silverdale, Washington 98383

Snohomish County

Represented by:

Scott T. Wilsdon

Vicki W.W. Lai

Yarmuth Wilsdon Calfo PLLC

3080 Washington Mutual Tower

1201 Third Avenue

Seattle, Washington 98101-3000

California Refuse Removal Council

Represented by:

John Kelly Astor

George R. Phillips, Jr.

James R. Coelho

Astor & Phillips

800 Wilshire Boulevard, Suite 1500

Los Angeles, California 90017

Solano Garbage Company

Represented by:

Richard E. Norris

Mark S. Coon

John L. Kortum

Archer Norris

3260 Blume Drive, Suite 400

Richmond, California 94596

Waste Systems, Inc.

Represented by:

Todd E. Thompson

Howard, Rice, Nemerovski, Canady, Falk & Rabkin

Three Embarcadero Center, 7th Floor

San Francisco, California 94111-4065

City of Alameda, City of Alhambra, City of Camarillo, City

of Carlsbad, City of Dana Point, City of Glendale, City of

Hawthorne, City of Monterey, City of Newport Beach, City of

Redlands, City of San Buena Ventura, City and County of San

Francisco, City of San Jose, City of San Juan Capistrano, City

of San Luis Obispo, City of Santa Paula, City of Sunnyvale,

City of Tracy, City of Vacaville, California State Association

of Counties and Solid Waste Association of North America.

Represented by:

John J. Welsh

Rufus C. Young, Jr.

Burke, Williams & Sorensen, LLP

611 West Sixth Street, Suite 2500

Los Angeles, California 90017

Bristol Resource Recovery Facility Operating Committee,

Cape May County Municipal Utilities Authority, Marion

County, Oregon, Minnesota Resource Recovery Association,

Montgomery County, Ohio and the Montgomery County

Solid Waste District, Resource Authority in Sumner County,

Tennessee, Solid Waste Authority of Central Ohio, City and

County of Spokane, Washington and the Spokane Regional

Solid Waste System, City of Tacoma, Washington, York

County Solid Waste and Refuse Authority, and the

Association of Washington Cities, Inc.

Represented by:

Scott M. DuBoff

Michael J. Thompson

Wright & Talisman, P.C.

1200 G Street, N.W., Suite 600

Washington, D.C. 20005-3802

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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