New Hampshire Motor Transp. Ass'n v. Rowe, CIV.03-178-B-H.

• Citation: 301 F.Supp.2d 38
• Decision Date: 06 February 2004
• Docket Number: No. CIV.03-178-B-H.,CIV.03-178-B-H.
• Parties: NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs v. G. Steven ROWE, in his Official Capacity as Attorney General of the State of Maine, Defendant
• Court: U.S. District Court — District of Maine

301 F.Supp.2d 38

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs v. G. Steven ROWE, in his Official Capacity as Attorney General of the State of Maine, Defendant

No. CIV.03-178-B-H.

United States District Court, D. Maine.

February 6, 2004.

COPYRIGHT MATERIAL OMITTED

Michael A. Nelson, Jensen, Baird, Gardner & Henry, Portland, ME, Lawrence R. Katzin, Paul T. Friedman, Ruth N. Borenstein, Morrison & Foerester LLP, San Francisco, CA, for New Hampshire Motor Transport Association, Massachusetts Motor Transportation Association, Inc., Vermont Truck and Bus Association, Inc., Plaintiffs.

Melissa Reynolds O'Dea, Assistant Attorney General, Augusta, ME, for G. Steven Rowe, in his official capacity as Attorney General for the State of Maine, Defendant.

MEMORANDUM DECISION ON PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

HORNBY, District Judge.

Does a federal statute that regulates interstate trucking preempt Maine's Tobacco Delivery Law, a law newly enacted to regulate delivery sales¹ of cigarettes and reduce teens' access to tobacco? Three truckers' associations have sued the Maine Attorney General seeking a declaration that federal law preempts the Maine legislation and an injunction against its enforcement. The truckers have moved for immediate summary judgment arguing that on their face federal and state law are in direct conflict and that the Maine law must give way. I disagree. I conclude that federal law does not completely foreclose Maine from exercising its traditional police powers to restrict delivery of tobacco. I therefore DENY the truckers' motion, pending further development of the record on how the law is applied.²

I. FACTS

New Hampshire Motor Transport Association, Massachusetts Motor Transport Association, Inc., and Vermont Truck & Bus Association, Inc. ("the truckers") are non-profit trade associations whose members are in the interstate transportation business. The truckers have brought suit against the Maine Attorney General to challenge provisions of Maine's Tobacco Delivery Law, 22 M.R.S.A. § 1551 et seq., enacted on June 9, 2003. According to its title, the Tobacco Delivery Law is intended to regulate the delivery and sale of tobacco products, and to prevent the sale of tobacco products to minors. 2003 Me. Laws 444. See also L.D. 1236, Summary (121st Me.Legis.2003); Comm. Amend. A to H.P. 910, L.D. 1236 (121st Me.Legis.2003).

The truckers argue that, by their express terms, three provisions — 22 M.R.S.A. §§ 1555-C(3)(A), 1555-C(3)(C), and 1555-D — are facially preempted by the Federal Aviation Administration Authorization Act of 1994 ("FAAAA").³ Section 1555-C(3)(A) directs that when tobacco retailers ship products pursuant to a delivery sale, the tobacco retailers must give the delivery service the age of the purchaser. Section 1555-C(3)(C) directs that tobacco retailers use only a delivery service that: (a) requires the purchaser and the addressee to be the same person; (b) requires the addressee to be of legal age to purchase tobacco products; and (c) requires the addressee to sign for the package, and, if under 27 years old, to present a valid identification showing proof of legal age. Section 1555-D, entitled "Illegal Delivery of Tobacco Products," provides:

A person may not knowingly transport or cause to be delivered to a person in this State a tobacco product purchased from a person who is not licensed as a tobacco retailer in this State, except that this provision does not apply to the transportation or delivery of tobacco products to a licensed tobacco distributor or tobacco retailer.⁴

The truckers are presenting a "facial" challenge to the Maine law, arguing that preemption can be determined merely by reading its terms. Therefore, I do not at this point have information on how the law is actually being enforced or what its present effect is.⁵

II. ANALYSIS

A. Federal Preemption and the FAAAA

The Supremacy Clause of the United States Constitution provides that "the Laws of the United States ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, § 1, cl. 2. Because of the Supremacy Clause, state laws that "interfere with, or are contrary to" constitutional federal law are preempted. Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 822 (1st Cir.1992), cert. denied, 506 U.S. 1052, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 211, 6 L.Ed. 23 (1824)). According to the Supreme Court, "pre-emption may be either express or implied, and is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (quoting FMC Corp. v. Holliday, 498 U.S. 52, 56-57, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)). Whether express or implied, the fundamental question is Congress's intent, as revealed in the language of the provisions as well as the structure and purpose of the statute. See United Parcel Service, Inc. v. Flores-Galarza, 318 F.3d 323, 334 (1st Cir.2003) (citing Morales, 504 U.S. at 383, 112 S.Ct. 2031). See also Rhode Island Public Towing Assoc., Inc. v. State of Rhode Island, 1997 WL 135571, **3-4, 1997 U.S. Dist. LEXIS 3316, *9 (D.R.I.1997) (citing Morales, 504 U.S. at 383, 112 S.Ct. 2031; Greenwood Trust, 971 F.2d at 823; French v. Pan Am Express, Inc., 869 F.2d 1, 2 (1st Cir.1989)).

The FAAAA is a constitutional law passed by Congress to regulate interstate trucking. The purpose of the FAAAA is to prevent states from interfering with the goal of federal deregulation by imposing regulations of their own.⁶ Flores-Galarza, 318 F.3d at 335 (citing Morales, 504 U.S. at 378, 112 S.Ct. 2031). Congress was explicit as to the law's preemptive effect:

[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 ... with respect to the transportation of property.

49 U.S.C. § 14501(c)(1) (1997).⁷ The First Circuit recently interpreted identical language in a parallel preemption provision.⁸ It ruled that the phrase "related to" has a broad meaning in ordinary usage, and when used in the FAAAA the preemption provision must likewise be given a broad reach.⁹ See Flores-Galarza, 318 F.3d at 335. The First Circuit has concluded that state laws and regulations "having a connection with or reference to" a motor carrier's prices, routes or services are eligible for preemption. See id. (citing Morales, 504 U.S. at 384, 112 S.Ct. 2031). According to the First Circuit, "[a] sufficient nexus [for preemption] exists if the law expressly references the [motor] carrier's prices, routes or services, or has a `forbidden significant effect' upon the same." Id. (emphasis added) (citing Morales, 504 U.S. at 388, 112 S.Ct. 2031).

B. Sections 1555-C(3)(A) and 1555-C(3)(C)

The truckers challenge sections 1555-C(3)(A), 1555-C(3)(C), and 1555-D. Sections 1555-C(3)(A) and 1555-C(3)(C), however, apply only to tobacco retailers who ship tobacco products. These sections do not apply to delivery carriers, and truckers face no penalties under these provisions. 22 M.R.S.A. § 1555-C(3) ("The following provisions apply to a tobacco retailer shipping tobacco products pursuant to a delivery sale."). To be sure, the provisions do force retailers to use delivery carriers that offer certain services. See 22 M.R.S.A. § 1555-C(3)(C) (requiring tobacco retailers to use a delivery service that requires the purchaser to be the addressee, the addressee to be of legal age to purchase tobacco products and sign for the package, and, if the addressee is under 27 years old, to present a valid identification showing proof of age); 22 M.R.S.A. § 1555-C(3)(A) (requiring the tobacco retailer, prior to shipping, to provide the delivery service the age of the purchaser). Ultimately that restriction may significantly affect the business of interstate trucking, but that can be determined only by examining the law as it is applied, not by the facial challenge that the truckers have raised in this motion. Sections 1555-C(3)(A) and 1555-C(3)(C) do not facially apply to carriers and do not expressly reference motor carrier prices, routes or services. I therefore conclude that 22 M.R.S.A. §§ 1555-C(3)(A) and 1555-C(3)(C) are not facially preempted by the FAAAA, 49 U.S.C. § 14501(c)(1).¹⁰

C. Section 1555-D

Section 1555-D "refers to" motor carrier services directly: "A person may not knowingly transport or cause to be delivered to a person in this State a tobacco product purchased from a person who is not licensed as a tobacco retailer in this State, except that this provision does not apply to the transportation or delivery of tobacco products to a licensed tobacco distributor or tobacco retailer." 22 M.R.S.A. § 1555-D. The truckers point out that this provision will require them to ensure that any packages containing tobacco products are delivered only if the shipper is licensed or the packages are addressed to licensed cosignees. Ennis Decl. ¶ 4. Thus, it satisfies one of the criteria that lead to preemption under the First Circuit test. But in determining preemption I must also assume that "the historic police powers of the States [are] not to be superseded by [a] Federal Act unless that was the clear and manifest purpose of Congress." Greenwood Trust, 971 F.2d at 823 (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)). That is so because the authority to preempt state law is "an extraordinary power ... that we must assume Congress does not exercise lightly." Id. (citing Gregory v. Ashcroft, 501 U.S. 452, 460, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). According to the First Circuit ruling on the parallel...