Jack's Tours, Inc. v. Kilauea Military Camp
| Decision Date | 29 September 2006 |
| Docket Number | No. 27442.,27442. |
| Parties | JACK'S TOURS, INC., Complainant-Appellant, v. KILAUEA MILITARY CAMP, Respondent-Appellee. |
| Court | Hawaii Supreme Court |
R. Michael Burke, Assistant U.S. Attorney, on the briefs, for respondent-appellee Kilauea Military Camp.
Complainant-appellant Jack's Tours, Inc. (Jack's Tours) appeals from the June 17, 2005 decision and order of the State of Hawai`i Public Utilities Commission (PUC) in favor of respondent-appellee Kilauea Military Camp (KMC). The PUC dismissed Jack's Tours' complaint for lack of subject matter jurisdiction, concluding, inter alia, that the Supremacy Clause of the United States Constitution, quoted infra, preempts any state regulation over KMC.
On appeal, Jack's Tours claims that the PUC erred in dismissing its complaint for lack of subject matter jurisdiction. For the reasons discussed below, we affirm the PUC's June 17, 2005 decision and order.
KMC is a "Joint Services Recreation Center" located in Hawai`i Volcanoes National Park on the island of Hawai`i, State of Hawai`i (the Big Island) and is owned and operated by the federal government. KMC offers accommodations, amenities, and tour packages over the public highways on the Big Island. Specifically, it advertises on its website that it "is a resort with a surprising array of amenities and activities" and that its tours "cover the many wonders of the Big Island." KMC "is open to all active and retired military, Reserve and National Guard members, current and retired Department of Defense civilian employees, dependents, and sponsored guests."
Jack's Tours is a privately owned and operated tour company that operates tours for the general public over the public highways on the Big Island. According to Jack's Tours, because it is a "common carrier by motor vehicle"1 [hereinafter, common carrier], it is required to, and does, have a "Certificate of Public Convenience and Necessity" (CPCN) issued by the PUC, pursuant to HRS § 271-8 (1993).2 In addition, Jack's Tours claims that several of its tours "closely resemble" tours offered by KMC. Jack's Tours alleges that KMC's website not only states that KMC offers tours to "all active and retired military, Reserve and National Guard members, current and retired Department of Defense civilian employees, dependents, and sponsored guests," but that KMC also offers tours to "others." Jack's Tours further alleges that information pertaining to the tours offered by KMC is available on its website and that KMC "will provide such information by mail to members of the general public."
Jack's Tours claims that, on January 29, 2004, "KMC buses were sighted transporting a group of `Āina Haina School students and their chaperones." In its view, such "tour appear[s] to involve the transportation of members of the general public and their property for compensation/hire over the public highways on the [Big Island] by KMC[.]" According to Jack's Tours, the students and their chaperones had earlier spent two nights at KMC and were transported throughout the day by KMC buses to several destinations on the Big Island. Consequently, Jack's Tours claims that, because KMC allegedly "holds itself out to the general public" "as an entity engaged in the transportation by motor vehicle of passengers and property for compensation[,]" KMC is a common carrier and, therefore, subject to regulation by the PUC. The record does not indicate whether KMC possesses a CPCN.
On June 4, 2004, Jack's Tours filed a complaint against KMC with the PUC, alleging that KMC is a common carrier and, thus, subject to the PUC's regulation. Jack's Tours alleged that KMC was transporting members of the general public over the State's highways in exchange for compensation without a CPCN, as required by HRS § 271-8. Moreover, Jack's Tours claimed that the Supremacy Clause,3 the preemption doctrine,4 and the "federal enclave exception"5 do not provide KMC with immunity from the State motor carrier law, as codified in HRS chapter 271. Specifically, Jack's Tours alleged that "[n]on-military tours that transport members of the general public over the public highways on the [Big Island] do not constitute an essential governmental function."
According to Jack's Tours, KMC's violation of HRS § 271-8 "injure[s] PUC regulated motor carriers, such as Jack's Tours, by promoting unfair or destructive competition and providing KMC with an undue preference and advantage." Specifically, Jack's Tours asserted that, although it "and all other motor carriers[ ] must abide by rates regulated by the [m]otor [c]arrier [l]aw[, i.e., HRS chapter 271] and the [PUC], KMC is able to provide attractive and substantially discounted rates to members of the general public who would otherwise be customers of PUC regulated motor carriers." Thus, Jack's Tours requested the PUC to find KMC in violation of HRS § 271-8 and issue "an order to show cause as to why KMC should not immediately cease and desist from transporting members of the general public on tours that travel over the public highways on the [Big Island], unless KMC applies for and obtains a CPCN."
On June 8, 2004, the Division of Consumer Advocacy of the Department of Commerce and Consumer Affairs (consumer advocate) advised the PUC that it would not participate in the instant proceeding, pursuant to Hawai`i Administrative Rules (HAR) § 6-61-62.6 On July 30, 2004, KMC filed its answer to the complaint. KMC asserted that, as a "non-appropriated fund instrumentality" (NAFI),7 it is entitled to immunity from regulation by the PUC unless Congress expressly consented to such regulation. According to KMC, because "Congress has not enacted any statute granting the . . . PUC jurisdiction to regulate any aspect of KMC bus tour operations[,]" HRS chapter 271 does not apply to NAFIs such as KMC. Moreover, KMC claimed that it "does not hold itself out to the general public as a common carrier[;]" rather, it "offers its services only to the authorized patronage group provided for in federal regulations." KMC further alleged that the "PUC lacks jurisdiction and is not the correct tribunal to make a finding that actions of a federal [NAFI] is [sic] not engaged in a federal governmental function." Thus, KMC requested that the PUC dismiss the complaint.
On September 10, 2004, the PUC entered an order, stating that, "[u]pon review of the pleadings, the [PUC] concludes that[,] prior to scheduling an evidentiary hearing in this docket, it must determine whether it has subject matter jurisdiction to hear and decide upon the [c]omplaint." Consequently, the PUC ordered the parties to file supplemental briefing solely on the issue "whether the [PUC] has subject matter jurisdiction to hear and decide upon this complaint."
On September 27, 2004, KMC filed its supplemental brief with the PUC. KMC contended that, "[a]bsent specific [c]ongressional waiver of immunity[,] State regulations would not apply to federal governmental [morale, welfare, and recreation (MWR)] operations, such as KMC." Generally, the MWR program is a quality-of-life program that is intended to support readiness "by providing a variety of community, soldier, and family support activities and services." Army Regulation (AR) 215-1 § 1-7(a); Latchum v. United States, 183 F.Supp.2d 1220, 1223 (D.Haw.2001). The MWR program is designed to meet the needs of those involved with a military installation, including not only the soldiers, but also retirees and civilian employees, as well as their families. AR 215-1 § 1.8(a); Latchum, 183 F.Supp.2d at 1223. According to KMC, "all NAFI[s] associated with military and naval operations are [part of the MWR program] governed by Department of Defense (DOD) Directive 1015.2." See, e.g., Latchum, 183 F.Supp.2d at 1223-24 () (citations and internal quotation marks omitted). "The [DOD] recognizes that MWR programs are vital to mission accomplishment and form an integral part of the non-pay compensation system." Id. at 1224 (internal quotation marks and citation omitted). Jack's Tours does not appear to dispute that KMC is operated as part of the Army's MWR program.
In its supplemental brief, KMC specifically claimed that "Congress has made morale and welfare of the members of the armed services a governmental function and [the] responsibility of the Secretary of the Army[.]" (Citing 10 United States Code (U.S.C.) § 3013(b)(9).8) Moreover, KMC argued that if[,] hypothetically[,] KMC were found offering services to the "general public," that would be an infraction of the federal regulation governing KMC. Such an infraction of federal regulations would be a matter for the appropriate federal authorities to resolve, not the [PUC]. That factor appears to go to the heart of the issue of subject matter jurisdiction in this proceeding.
(Emphases in original.) In response to Jack's Tours' allegation that KMC was offering tours to the general public by transporting `Āina Haina students and their chaperones, KMC asserted that "[t]he [c]omplaint does not plead facts that would assure the [PUC] that passengers outside the eligible patronage group were involved in the tours in question." KMC maintained that, "[u]nder applicable federal regulations, KMC bus tours may include the students and/or chaperones of `Āina Haina School if they are dependents and/or sponsored guests, i.e., persons within the KMC federally authorized patronage group." Thus, KMC...
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Chapter § 5.04 TOUR OPERATORS, WHOLESALERS AND PUBLIC CHARTERS
...in the early morning hours . . . went down to pool" and was raped in the pool.[413] See, e.g., Jack's Tours Inc. v. Kilauea Military Camp, 145 P.3d 693 (Haw. Sup. 2006). See also: In Gelles, "Patagonia v. Trump: Inside a battle over public lands," www.nytimes.com (5/6/2018), it was noted th......