John Kramer
John Kramer · September 15, 2020

Arlington, Virginia—Jim and Cliff Courtney have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination. With the petition they filed yesterday asking the U.S. Supreme Court to review their case, the brothers hope their next stop will be before the nation’s High Court.

Since 1997, the brothers from Washington state have been fighting for their right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the northern Cascades, the State of Washington has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their family’s own businesses at the far end of the lake. The Courtneys challenged the state’s bar on their use of Lake Chelan, and after nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. But now the Courtneys are teaming with the Institute for Justice to ask the U.S. Supreme Court to review that decision.

Jim and Cliff’s case hinges on the interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars: the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter-House Cases, an 1873 decision in which the U.S. Supreme Court upheld the power of states to create monopolies in certain industries. But, interestingly, in that case, the justices held that among the rights (known then as “privileges or immunities”) that states have to respect is the “right to use the navigable waters of the United States”—the very right at the heart of Jim and Cliff’s case and their private boat service.

According to the State of Washington and the 9th Circuit, however, that right is essentially meaningless. Washington has applied its so-called “public convenience and necessity” requirement to block the Courtneys even from shuttling lodging customers to and from Cliff’s own ranch in Stehekin, at the far end of Lake Chelan. (The public convenience and necessity requirement is essentially a trial held by the state licensing board that allows existing service providers to veto potential competitors, saying no new service providers are “necessary”—the equivalent of allowing McDonald’s to veto the building of a Burger King in the same market.)

The 9th Circuit, for its part, upheld Washington’s application of the public and necessity requirement to block Jim and Cliff from operating on the lake. Severely curtailing the scope of the right to use the navigable waters that the Supreme Court recognized in Slaughter-House, the 9th Circuit held that it only protects uses that “involve interstate or foreign commerce”—not “intrastate boat transportation” like the Courtneys wish to provide. The right, in other words, is a mere redundancy of the right to engage in interstate or foreign commerce. And the 9th Circuit did not stop there. Not content with gutting this one particular right protected by the Privileges or Immunities Clause, it effectively gutted the clause itself. To support its holding that “intrastate” uses of the navigable waters are not protected, it held that the clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.”

“The 9th Circuit’s decision renders meaningless a right that the U.S. Supreme Court has said all Americans possess by virtue of their national citizenship,” said Michael Bindas, senior attorney with the Institute for Justice. “Worse, it flouts the very constitutional provision that protects that right. When the Privileges or Immunities Clause says that ‘No state . . . shall abridge’ rights of national citizenship, it actually means ‘No state’—including one’s own.”

To defend the right of all Americans to use the navigable waters of the United States, and to restore the Privileges or Immunities Clause to its rightful place in protecting the rights of Americans, the Institute for Justice petitioned the U.S. Supreme Court to hear the Courtneys’ case.