                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 15 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JAMES COURTNEY; CLIFFORD                        No.    19-35100
COURTNEY,
                                                D.C. No. 2:11-cv-00401-TOR
                Plaintiffs-Appellants,

 v.                                             MEMORANDUM*

DAVID DANNER, Chairman and
Commissioner, in his official capacity as
officer and member of the Washington
Utilities and Transportation Commission;
ANN E. RENDAHL, Commissioner, in her
official capacity as officer and member of
the Washington Utilities and Transportation
Commission; JAY BALASBAS,
Commissioner, in his official capacity as
officer and member of the Washington
Utilities and Transportation Commission;
MARK JOHNSON, in his official capacity
as executive director of the Washington
Utilities and Transportation Commission,

                Defendants-Appellees.

                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Thomas O. Rice, Chief District Judge, Presiding

                            Submitted March 30, 2020**

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                Seattle, Washington

Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges.

      James and Clifford Courtney appeal the district court’s order dismissing

their complaint against the executive director and commissioners of the

Washington Utilities and Transportation Commission (collectively, the “WUTC”).

We have jurisdiction under 28 U.S.C. § 1291. Reviewing de novo, see Courtney v.

Goltz, 736 F.3d 1152, 1157 (9th Cir. 2013), we affirm.

      The Courtneys seek to provide intrastate boat transportation on Lake Chelan

for certain customers of Stehekin-based businesses. They contend that the

WUTC’s classification of their proposed services as a “public” ferry requiring a

certificate of public convenience and necessity (“PCN certificate”), and its refusal

to issue them one, violate their right under the Fourteenth Amendment’s Privileges

or Immunities Clause “to use the navigable waters of the United States.” The

Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 79 (1872).

      “[T]he Privileges or Immunities Clause protects only those rights ‘which

owe their existence to the Federal government, its National character, its

Constitution, or its laws.’” McDonald v. City of Chicago, 561 U.S. 742, 754

(2010) (quoting The Slaughter-House Cases, 83 U.S. at 79). The right to use the



      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
navigable waters of the United States is a national right because such waters are

channels of interstate and foreign commerce, and the Constitution delegates power

over those areas to Congress. See Braniff Airways v. Neb. State Bd. of

Equalization & Assessment, 347 U.S. 590, 597 (1954) (explaining that Congress’s

commerce power is “the . . . constitutional basis which, under decisions of the

Supreme Court, has given rise to a public easement of navigation in the navigable

waters of the United States”).

      Historically, states—not the federal government—regulated ferry franchises

with the power to exclude a franchisee’s potential competitors from the

market. See Conway v. Taylor’s Ex’r, 66 U.S. (1 Black) 603, 635 (1861) (“[T]he

States have [always] exercised the power to establish and regulate ferries;

Congress never.”). An intrastate ferry franchise is a property right, and “[r]ights of

commerce give no authority to their possessor to invade the rights of property.” Id.

at 634; see also Merrifield v. Lockyer, 547 F.3d 978, 983 (9th Cir. 2008) (holding

that state licensing requirement impeding state resident from practicing particular

profession within the state does not implicate the Privileges or Immunities Clause,

which in general “bar[s] . . . claims against ‘the power of the State governments

over the rights of [their] own citizens’” (quoting The Slaughter-House Cases, 83

U.S. at 77)).




                                          3
      The Courtneys’ proposed ferry services, whether classified as “public” or

“private,”1 do not involve interstate or foreign commerce. Therefore, the WUTC’s

determination that the proposed services would interfere with the current ferry

operator’s franchise rights does not affect the Courtneys’ privileges or immunities

as citizens of the United States.

      AFFIRMED.




      1
        We do not decide whether, for federal constitutional purposes, the
Courtneys’ proposed services should be classified as “private” and thus
distinguishable from the proposed service at issue in their prior appeal. See
Courtney, 736 F.3d at 1162 (“[T]he Privileges or Immunities Clause of the
Fourteenth Amendment does not protect a right to operate a public ferry on Lake
Chelan . . . .”). Nor do we decide the relevance to this question, if any, of the
WUTC’s classification of the proposed services as “public” under the state law
requiring PCN certification. See Wash. Rev. Code § 81.84.010(1).

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