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Supreme Court Declines to Review Navigable Waters Case

Arlington, Virginia—Today, the U.S. Supreme Court denied review in the decade-long lawsuit brought by brothers/entrepreneurs Jim and Cliff Courtney, who sought to provide boat service on Lake Chelan in Washington state.  The denial lets stand a 2020 decision of the 9th U.S. Circuit Court of Appeals dismissing the Courtneys’ lawsuit.

Since 1997, the Courtneys have tried to provide transportation—even just for customers of their family’s own businesses—along the 55-mile-long lake, a federally designated navigable water of the United States.  After years of being consistently thwarted by an anticompetitive state licensing law known as a “public convenience and necessity” (“PCN”) requirement, they teamed up with the Institute for Justice (“IJ”) to challenge the law.

The lawsuit alleged that the PCN requirement abridged the Courtneys’ “right to use the navigable waters of the United States,” which the U.S. Supreme Court, in the notorious Slaughter-House Cases of 1873, expressly recognized as protected by the Privileges or Immunities Clause of the Fourteenth Amendment.  In an opinion that otherwise largely gutted the clause, the Court in Slaughter-House recognized a handful of rights of national citizenship that the clause does, in fact protect, and among them was the right to use the navigable waters of the United States.

Slaughter-House was a terrible opinion, but it was correct in recognizing that inherent in the citizenship of every American is the right to use the nation’s navigable waters,” said Michael Bindas, IJ Senior Attorney and lead counsel for the Courtneys.  “Unfortunately, the Supreme Court refused to enforce that right today.  Nevertheless, the Institute for Justice remains steadfastly committed to revitalizing the Privileges or Immunities Clause—to restoring it to its rightful place as the cornerstone of the Fourteenth Amendment and the primary constitutional bulwark of economic liberty.”

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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:  https://ij.org/case/lake-chelan-ferries/.]

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