Independent Towers, Wa v. Washington

• Citation: 350 F.3d 925
• Decision Date: 18 November 2003
• Docket Number: No. 02-35262.,02-35262.
• Parties: INDEPENDENT TOWERS OF WASHINGTON, on behalf of themselves and a class of businesses and persons similarly situated; Stormy Glick, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/A & A Towing, dba/Aberdeen Honda Towing, dba/Harbor Towing, dba/Whitney's Towing; Mark Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Allicat Towing; Presley, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/City Wide Towing, dba/Great Northwest Towing; Jerry Goodard, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Jerry's Automotive & Towing; Rick Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Rick's Towing & Automotive Inc.; Donald Roundtree, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Seattle Central Towing, Plaintiffs-Appellants, v. State of WASHINGTON; Ronald W. Serpas, Chief, Washington State Patrol; Fred Stephens, Director, Washington State Department of Licensing, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 925

350 F.3d 925

INDEPENDENT TOWERS OF WASHINGTON, on behalf of themselves and a class of businesses and persons similarly situated; Stormy Glick, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/A & A Towing, dba/Aberdeen Honda Towing, dba/Harbor Towing, dba/Whitney's Towing; Mark Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Allicat Towing; Presley, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/City Wide Towing, dba/Great Northwest Towing; Jerry Goodard, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Jerry's Automotive & Towing; Rick Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Rick's Towing & Automotive Inc.; Donald Roundtree, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Seattle Central Towing, Plaintiffs-Appellants, v. State of WASHINGTON; Ronald W. Serpas, Chief, Washington State Patrol; Fred Stephens, Director, Washington State Department of Licensing, Defendants-Appellees.

No. 02-35262.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 6, 2003 — Seattle, Washington.

Filed November 18, 2003.

COPYRIGHT MATERIAL OMITTED

Shawn Timothy Newman and Hugh McGavick, Olympia, Washington, for the plaintiffs-appellants.

Christine Gregoire, Attorney General, Diane McDaniel, Assistant Attorney General, Olympia, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-01-05535-FDB.

Before: Beety B. FLETCHER, Melvin BRUNETTI, and M. Margaret McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

The extent to which state and local regulation of towing companies is preempted under federal law has been the subject of much litigation. We have previously considered the issue in the context of California regulations. See Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th Cir.2000) (abrogated in part by City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002)). Other circuits have considered similar challenges. See, e.g., Tow Operators Working to Protect Their Right to Operate v. City of Kan. City, 338 F.3d 873, 876 (8th Cir.2003), Cardinal Towing & Auto Repair, Inc. v. Bedford, 180 F.3d 686, 693(5th Cir.1999); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 772-774 (2nd Cir.1999); R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 544 (11th Cir.1998) (abrogated in part by City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002)). We now address a challenge by tow operators to the State of Washington's regulation of towing businesses.

BACKGROUND

The State of Washington regulates tow truck operators that conduct business within the state. Registered tow truck operators — operators who "engage[] in the impounding, transporting, or storage of unauthorized vehicles or the disposal of abandoned vehicles" or non-consensual towing — are subject to more extensive regulations than operators who tow upon the request of a vehicle owner. See RCW § 46.55.010(6). Because registered tow truck operators tow cars without the owner's consent, the State requires them to obtain permits, submit to inspections of business premises, meet insurance and record-keeping requirements, maintain certain hours, accept specified means of payment, conform their vehicles to the State's equipment standards, and satisfy other requirements. See, generally, RCW § 46.55.

Independent Towers of Washington ("ITOW") is a statewide organization of registered tow truck operators. Taking the position that the State's regulation of the towing industry is expressly preempted under the Interstate Commerce Act ("ICA"), 49 U.S.C. § 14501(c), ITOW filed a class action against the State on behalf of "all towing businesses and persons presently and/or formerly employed in the towing business in Washington State since deregulation of the motor carrier industry in 1994." ITOW sought damages and an injunction preventing the State from enforcing these regulations.

The State moved for summary judgment and asserted that the challenged regulations fell within the safety, financial responsibility, and price of non-consensual towing exceptions to ICA preemption. The district court agreed and granted the State's motion for summary judgment.

DISCUSSION

The issue presented is whether Washington State's regulations fall within the ICA's express preemption language. Where Congress explicitly preempts state law, "Congress' enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Thus, because ITOW relies on the express preemption provision of ICA, our review is limited to whether the Washington regulations fall within the scope of this Act. We review this question de novo. Tocher, 219 F.3d at 1045.

In determining the scope of ICA's preemption of state law, we "start with the assumption that the historic police powers of the States [are] not to be superseded by... [a] Federal Act unless that [is] the clear and manifest purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947). "[T]he purpose of Congress is the ultimate touchstone of preemption analysis." Cipollone, 505 U.S. at 516, 112 S.Ct. 2608(internal citations and quotation marks omitted).

The ICA, as amended by the Federal Aviation Administration Authorization Act and the ICC Termination Act, provides that state regulations relating to the price, route, or service of motor carriers are generally preempted:

(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.

49 U.S.C. § 14501(c)(1). This general rule, however, is tempered by exceptions relating to safety regulations, the transportation of household goods, and non-consensual towing:

(2) Matters not covered. Paragraph

(1) —

(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;

(B) does not apply to the transportation of household goods; and

(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.

449 U.S.C. § 14501(c)(2)(A-C).¹

The leading Ninth Circuit case addressing preemption of towing regulations is Tocher v. City of Santa Ana. Tocher sets forth the parameters for preemption with respect to the California towing regulations. 219 F.3d 1040. We now are asked to do the same for Washington State's regulations.

I. FORFEITURE OF ISSUES ON APPEAL

ITOW asserts generally in its opening brief that the ICA preempts nearly all of Chapter 46.55 of the Revised Code of Washington (RCW) — Towing and Impoundment — and Chapter 204-91A of the Washington Administrative Code (WAC) — Towing Businesses. Those provisions contain more than twenty-five pages of fine print language. Beyond its bold assertion, ITOW provides little if any analysis to assist the court in evaluating its legal challenge. Notably absent is any explanation of why most of the regulations are preempted and why the regulations do not fall within the well-defined exceptions to preemption.

Instead of making legal arguments, ITOW provides a five page laundry list of the challenged regulations and their titles, leaving the court to piece together the argument for preemption as to each regulation. Indeed, a quarter of ITOW's twenty-one page brief is simply a bullet point listing of statutes. The few explanatory footnotes fare no better at illuminating ITOW's argument. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 4 (9th Cir.1996) ("The summary mention of an issue in a footnote, without reasoning in support of the appellant's argument, is insufficient to raise the issue on appeal."). By and large, the footnotes simply recast the statutory text rather than making an argument or even pointing the court to a claimed basis for preemption.

When reading ITOW's brief, one wonders if ITOW, in its own version of the "spaghetti approach," has heaved the entire contents of a pot against the wall in hopes that something would stick. We decline, however, to sort though the noodles in search of ITOW's claim. As the Seventh Circuit observed in its now familiar maxim, "[j]udges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991).

Our circuit has repeatedly admonished that we cannot "manufacture arguments for an appellant" and therefore we will not consider any claims that were not actually argued in appellant's opening brief....