Supreme Court Appeal & Amicus Briefs Make Case for the Right of All Americans To Use the Nation’s Navigable Waters

John Kramer
John Kramer · December 21, 2020
  • Courtney brothers have tried for 23 years to transport passengers to their family’s businesses, only to be blocked by government every step of the way.
  • Infamous Slaughter-House Cases stripped Americans of most economic liberties, but explicitly protected right to use waters. If precedent means anything, the Courtney brothers should win.

Arlington, Virginia—Imagine Jim and Cliff Courtney’s frustration in spending 23 years trying to travel 55 miles by boat, but never reaching their destination.

The brothers from Washington State petitioned the U.S. Supreme Court in September to hear their challenge to a state law that has barred them from pursuing a livelihood on Washington’s 55-mile-long Lake Chelan.  On Friday, they filed their final brief with the Court before the justices are scheduled to hold a January 8, 2021 conference to decide whether to take up the appeal. Earlier this term, the Courtneys received significant support, as some of the nation’s leading historians and legal scholars, as well as a national nonprofit committed to the ideas, principles and policies of a free and open society, submitted amicus curiae (or “friend of the court”) briefs urging the Court to review the case.

Since 1997, the Courtneys have been fighting for their right to use Lake Chelan—a federally designated navigable water of the United States—in pursuit of a living. That right can be traced all the way back to Magna Carta and is protected by the Privileges or Immunities Clause of the U.S. Constitution’s 14th Amendment. In the landmark Slaughter-House Cases—decided in 1873, just five years after the 14th Amendment was ratified—the U.S. Supreme Court held that the “right to use the navigable waters of the United States” is one of the “privileges or immunities,” or rights, of national citizenship that no state may abridge. For the last 23 years, however, the state of Washington has used a century-old licensing of public ferries to prevent the Courtneys from even shuttling customers of their family’s own businesses at the far end of the lake.

The Courtneys challenged Washington’s law, but in April of this year, following nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. According to the 9th Circuit, the right to use the navigable waters of the United States is essentially meaningless. The court severely curtailed the scope of the right, holding that it protects only uses that “involve interstate or foreign commerce”—not “intrastate boat transportation” like that which 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, the court held that the clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.”

“The Courtneys’ petition raises fundamental questions regarding the constitutional provision that was supposed to be the cornerstone of the 14th Amendment, and it concerns a right that the U.S. Supreme Court has held every American possesses by virtue of their national citizenship,” said Michael Bindas, IJ senior attorney and counsel for the Courtneys.  “The 9th Circuit’s decision, if allowed to stand, will reduce that right to meaninglessness, and the Supreme Court should not let that happen.”

In three briefs, a group of historians, a coalition of law professors, and Americans for Prosperity Foundation highlighted the errors of the 9th Circuit’s decision and urged the Supreme Court to review it.

  • A group of eminent historians whose research and scholarly interests focus on African-American history, particularly in the antebellum South, submitted a brief providing historical context to inform the original understanding of what it meant to “use” the “navigable waters of the United States” around the time of the Fourteenth Amendment’s ratification. The historians—Jeffrey Bolster (University of New Hampshire, emeritus), Melvin Patrick Ely (College of William & Mary), and Michael Schoeppner (University of Maine, Farmington)—document the importance of the navigable waters to free blacks and slaves in the period leading up to the Civil War, as well as the widespread efforts by southern governments to restrict their use of those waters in both interstate and intrastate pursuits. The historical evidence, the brief notes, “undercuts the Ninth Circuit’s holding that the Privileges or Immunities Clause protects only against infringements on interstate uses of the navigable waters.”
  • A group of distinguished law professors—Richard Aynes (University of Akron School of Law, emeritus), James Ely (Vanderbilt University Law School, emeritus), Richard Epstein (New York University School of Law), Christopher Green (University of Mississippi School of Law), Michael Lawrence (Michigan State University College of Law), and Rebecca Zietlow (University of Toledo College of Law)—submitted a brief making clear that when the Privileges or Immunities Clause declares that “No State . . . shall abridge the privileges or immunities of citizens of the United States,” it actually means “No State,” including one’s own. The 9th Circuit’s contrary conclusion—which, the brief demonstrates, flies in the face of U.S. Supreme Court precedent, history, and the unanimous consensus of legal scholars—“has cudgeled the Privileges or Immunities Clause of the Fourteenth Amendment to within an inch of its life.”
  • Americans for Prosperity Foundation submitted a brief tracing the historical origins of the right to use the navigable waters, examining the basis for its protection as a right of national, rather than state, citizenship, and dispelling the 9th Circuit’s view that the Commerce Clause constrains the scope of the right. The brief urges the Supreme Court to review the lower court’s decision in order to “protect the right of the people to use the nations’ navigable waterways and unwind the conflation of limits on congressional power and protection of individual rights wrought by the Ninth Circuit.”

“The Slaughter-House Cases set a horrible precedent, but one thing it got right was that the Privileges or Immunities Clause protects every American’s right to use the navigable waters of the United States. Yet, now, the 9th Circuit has taken that away, too,” said Scott Bullock, president and general counsel for the Institute for Justice. “We urge the Court to take up the Courtneys’ case and restore this important right to all Americans.”

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[NOTE:        To arrange interviews on this subject, journalists may call John Kramer, IJ’s vice president for communications, at (703) 682-9323 ext. 205.  More information on the case is available at:]