Columbia River S.S. Operators' Ass'n v. Port of Astoria
| Decision Date | 08 December 2021 |
| Docket Number | 3:19-cv-01478-JR |
| Parties | COLUMBIA RIVER STEAMSHIP OPERATORS' ASSOCIATION, Plaintiff, v. PORT OF ASTORIA, Defendant. |
| Court | U.S. District Court — District of Oregon |
FINDINGS & RECOMMENDATION
Defendant the Port of Astoria's (“Port”) Board of Commissioners approved Resolution 2019-13 implementing a $300 “harbor fee” for vessels passing through the Port's jurisdictional limits. The fee went into effect on July 1, 2019. Plaintiff Columbia River Steamship Operators' Association brings this action alleging the fee violates the Tonnage, Commerce, and Supremacy Clauses of the United States Constitution, as well as the Rivers and Harbors Appropriation Act (33 U.S.C. § 5). The parties now cross move for summary judgment as to all claims. For the reasons stated below, both motions should be granted in part and denied in part.
The parties generally agree that the facts of this case are undisputed, and the issue is one of law for the Court to decide. The Port is a municipal corporation, located on the Northern Oregon Coast, 12 miles inland from the Columbia River Bar. The Port owns and manages Pier 1, a pier on the easternmost part of the port. Pier 1 features a deep-water vessel berth, which can accommodate vessels of virtually any size. It is the only port in the surrounding area which can accommodate large, deep-draft ocean-going vessels that regularly pass through the Columbia River. Isom Decl. Ex. A at 2-6 (ECF 27).
On March 19, 2019, the Port's Board of Commissioners approved, by a unanimous vote, Resolution 2019-03 - i.e., the “Port of Astoria Harbor Maintenance and Safety Fee” - which imposes a $300 fee on large oceangoing commercial vessels. Isom Decl. Ex. C, at 1-2 (ECF 27). This amendment to the Port's tariff states:
The Port of Astoria maintains and operates Pier 1 in furtherance of its commercial and maritime shipping interests, and to protect public safety by: providing an emergency berth to distressed vessels; and serving as a land-based platform for emergency services to distressed vessels, including firefighting. In order to defray the costs associated with maintaining and operating Pier 1, all vessels engaged in foreign, coastwise, or intercoastal trade that are 250 feet or greater in length overall, upon arriving within the jurisdictional limits of the Port of Astoria, shall be assessed a harbor fee of $300 per vessel.
Several types of vessels are exempt from the fee, including: (1) commercial vessels less than 250 feet in length; (2) government vessels; (3) non-commercial pleasure craft; and (4) tugboats. Id. The fee took effect in July 2019. Id.
The Port maintains the fee will be used to make Pier 1 available for an emergency services staging area. Isom Decl. Ex. A, at 7-9 (ECF 27). To maintain the deep-water berth, Pier 1 requires regular dredging to account for significant sediment deposits arising from the Port's proximity to the mouth of the Columbia River. Id. at 5.
The Port deposits the revenue accrued from this fee into a general account; there is no designated separate account. Boyajian Decl. Ex. 1, at 105, 126 (ECF 25).
Jeff Johnson, former Captain of the Vancouver Fire Department, and current Training and Response Coordinator for the Resolve Marine Group and Pacific Region Casualty Representative stated that Pier 1 fails to meet the ideal criteria for a Fire Suppression Berth. Johnson Decl. ¶¶ 3-4 (ECF 34). Additionally, during development of the Northwest Area Contingency Plan by the U.S. Coast Guard, the Port would not commit to listing Pier 1 as a designated firefighting berth. Id. at ¶ 2.
Mitch Anderson, Ships Agency Operations Manager of the West Coast/North America for Wilhelmsen Ships Service, provided details on the difficulties with docking at Pier 1, and why that may pose an issue for emergency services. Anderson Decl ¶¶ 3-4 (ECF 35). According to Anderson, docking at Pier 1 takes roughly five hours and costs in excess of $100 000. The docking time also increases if another ship is currently docked at the pier. Id. at ¶ 3. The logistics issues with docking complicates the ability to perform emergency services.
When asked whether the United States Coast Guard ever directs vessels to Pier 1 for emergency services, the Captain of the Port for the Columbia River states: “[M]y staff and I are unable to recall a time in which a Sector Columbia River Captain of the Port Order has included a requirement that the impacted vessel use Pier 1 in Astoria.” Boyajian Decl. Ex. 4 (ECF 25).
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Servs., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable jury could return a verdict for the nonmoving party determines the authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The moving party has the burden of establishing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.
Special rules of construction apply when evaluating a summary judgment motion: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630.
Plaintiff initially alleged the harbor fee violates: (1) the Tonnage Clause of the United States Constitution; (2) the Rivers and Harbors Appropriation Act, 33 U.S.C. § 5; (3) the Commerce Clause of the United States Constitution; and (4) the Supremacy Clause of the United States Constitution. Plaintiff seeks a declaration that the fee violates these provisions and to permanently enjoin the imposition and collection of the fee.
Plaintiff withdrew its second cause of action under the Rivers and Harbors Appropriation Act. Accordingly, summary judgment should be entered in favor of defendant as to plaintiff's second claim.
The purpose of the Tonnage Clause is “to restrain the states themselves from the exercise of the taxing power injuriously to the interests of each other . . . The prohibition against tonnage duties embraces all taxes and duties, regardless of their name or form, whether measured by the tonnage of the vessel or not, that, in effect, are charges for the privilege of entering, trading in, or lying in a port. Polar Tankers, Inc. v. City of Valdez, Alaska, 557 U.S. 1, 7-8 (2009) (internal quotations and brackets omitted). Accordingly, ordinances which seem designed to impose “a charge for the privilege of entering, trading in, or lying in a port” are invalid. Id.
The fee imposed by the Port is only on select vessels and based on one single entry to the port. The fact that the fee is directed into a general fund managed by the Port suggests violation of the Tonnage Clause.
There are, however, some charges and fees which are permitted under the Tonnage Clause. The prohibition against tonnage duties “does not extend to charges made by state authority, even though graduated according to tonnage, for services rendered to and enjoyed by the vessel, such as pilotage, or wharfage, or charges for the use of locks on a navigable river, or fees for medical inspection.” Clyde Mallory Lines v. Ala. ex rel. State Docks Comm'n, 296 U.S. 261, 265-66 (1935). The Port argues that the fee established in Clyde is analogous to the fee they seek to impose. Def.'s Reply Br. (ECF 38). Further, the Port contends that dredging is a service which directly benefits each vessel using Pier 1. Id.
Although dredging may benefit all vessels using Pier 1, this is not the purpose of the challenged fee. The stated purpose of the fee is to create a staging ground for emergency vessels, and the fee is only to be imposed on vessels of a certain size-which is why, amongst other reasons, this fee violates the Tonnage Clause.
Indeed, when the fee in question is measured by the tonnage of the vessel, such a fee is invalid: “But in almost all the cases relied on by the appellants there was a reference to the tonnage capacity of the vessel as the measure of the tax, and in all of them there was an absence of any service rendered for which the contribution was a compensation; generally, they were held to be imposed for the privilege of entering and anchoring in the port.” Morgan's La. & T. R. & S. S. Co. v. Bd. of Health of La., 118 U.S. 455, 462-63 (1886). Here, only vessels which are a certain length will have the fee imposed without any related service to the ship for which the tax is levied.
Finally the Supreme Court holds that the “prohibition” against tonnage duties “comes into play” where vessels “are not taxed in the same manner as the other property of the citizens.” Transp. Co. v. Wheeling, 99 U.S. 273, 284 (18...
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