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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1999 <br> <br> <br>               HOULTON CITIZENS' COALITION, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>                         TOWN OF HOULTON, <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>           [Hon. Morton A. Brody, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Selya, Stahl and Lipez, <br>                                 <br>                        Circuit Judges. <br>                                 <br> <br> <br>     Robert M. Morris, with whom Steven R. Davis and Carton, Davis <br>& Morris, P.A. were on brief, for appellants. <br>     Michael E. Saucier, with whom Thompson & Bowie was on brief, <br>for appellee. <br> <br> <br> <br> <br> <br>April 22, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  SELYA, Circuit Judge.  This litigation has its genesis in <br>a waste management scheme devised by the town fathers of Houlton, <br>Maine (the Town).  The appellants claim that Houlton's plan   under <br>which the Town by contract designated a single firm as the <br>exclusive hauler of residential waste within its borders, and <br>enacted a flow-control ordinance directing all such waste either to <br>be collected by that firm or to be brought to its transfer station <br>  violates the Commerce Clause, the Takings Clause, the Contract <br>Clause, and the town charter.  The district court rejected these <br>importunings.  We affirm the judgment below (with a slight <br>modification), but our reasoning differs from the district court's <br>in respect to the principal bone of contention   the Commerce <br>Clause challenge. <br>I.  BACKGROUND <br>  As in many small towns across the nation, Houlton <br>residents traditionally dealt with solid waste by depositing it in <br>the town dump or engaging others to do so.  On October 17, 1995, <br>state environmental authorities closed the dump.  In order to <br>remain compliant with state law, the Town needed to fashion a new <br>way for its residents to deal with solid waste.  It thereupon <br>issued a request for proposals (RFP), conducted an open competitive <br>bidding process that resulted in the selection of a local firm <br>(Andino, Inc.) as its exclusive contractor, agreed to provide that <br>firm with a guaranteed trash quota for seven years, and enacted a <br>flow-control ordinance (the 1995 Ordinance) that required all <br>residential solid waste generated within the town limits to be <br>taken to a local transfer site operated by Andino. <br>  In New England, change does not come easily.  Asserting <br>that the 1995 Ordinance violated the Commerce Clause, David Condon, <br>a trash disposal operator, sued Andino and the Town.  The federal <br>district court preliminarily enjoined enforcement of the 1995 <br>Ordinance, see Condon v. Andino, Inc., 961 F. Supp. 323, 331-32 (D. <br>Me. 1997), and the Town folded; instead of litigating to the bitter <br>end, it revised the law and enacted a new ordinance (the 1997 <br>Ordinance) that put a somewhat different waste management system <br>into effect. <br>  The new plan has two components.  The first is the 1997 <br>Ordinance itself.  The ordinance requires all generators of <br>residential rubbish within the Town either to use Houlton's chosen <br>contractor to transport their trash, or to haul it themselves.  See1997 Ordinance  10-507.  Although the Town's contractor is <br>permitted to dispose of collected trash at any proper disposal <br>site, residents who choose to self-haul are required to take their <br>refuse to a repository designated by the Town Council.  See id.  <br>10-504.  The ordinance provides fines and other penalties for <br>noncompliance.  See id.  10-503. <br>  The contract between Andino and the Town constitutes the <br>new scheme's second component.  The  previous contract between <br>these parties had included, inter alia, a failsafe clause whereby <br>the Town agreed to negotiate with Andino in good faith to keep it <br>as the Town's contractor if a court of competent jurisdiction held <br>the 1995 Ordinance invalid or unenforceable.  Purporting to honor <br>its commitment to renegotiate, the Town implemented the 1997 <br>Ordinance by supplementing and amending the preexisting contract, <br>granting Andino the exclusive right to collect third-party <br>residential waste under the 1997 Ordinance, and designating its <br>transfer station as the disposal site for self-haulers. <br>  These modifications did not placate those who yearned for <br>simpler times.  Four plaintiffs combined to sue the Town in federal <br>district court.  They included Condon, two other local trash <br>haulers (William Faulkner and Fred Spellman), and the Houlton <br>Citizens' Coalition (HCC), an unincorporated nonprofit association <br>formed by Houlton residents.  Invoking federal question <br>jurisdiction, 28 U.S.C.  1331   there is no other readily apparent <br>jurisdictional basis   the plaintiffs challenged the 1997 Ordinance <br>under, inter alia, the Commerce Clause, the Takings Clause, and the <br>Contract Clause.  They also appended a supplemental state-law claim <br>under the town charter.  The district court rebuffed their attempt <br>to restrain implementation of the 1997 Ordinance pendente lite, <br>concluding that the plaintiffs were unlikely to prevail on the <br>merits.  See Houlton Citizens' Coalition v. Town of Houlton, 982 F. <br>Supp. 40, 46 (D. Me. 1997)(HCC I).  The court subsequently granted <br>summary judgment for the Town on the four claims with which we are <br>concerned.  See Houlton Citizens' Coalition v. Town of Houlton, 11 <br>F. Supp.2d 105, 112 (D. Me. 1998) (HCC II).  This appeal followed. <br>II.  STANDING <br>     Before we consider the appellants' substantive arguments, <br>we pause to ponder a potential problem:  the claim that the <br>Coalition, an unincorporated nonprofit association that was formed, <br>according to the uncontradicted affidavit of its president, <br>specifically "to provide a forum for research, analysis, discussion <br>and public education of civic policy issues related to the public <br>administration of the Town of Houlton, Maine" and "to perform civic <br>public service in this role," lacks standing.  See United States v. <br>AVX Corp., 962 F.2d 108, 113-16 (1st Cir. 1992) (discussing <br>elements of standing requirement for unincorporated associations). <br>     The Town brings some heavy artillery to this battlefield.  <br>Two respected courts recently have held that individual garbage <br>generators lacked standing to challenge schemes similar to <br>Houlton's under the Commerce Clause.  See Ben Oehrleins & Sons & <br>Daughter, Inc. v. Hennepin County, 115 F.3d 1372, 1381-82 (8th <br>Cir.), cert. denied, 118 S. Ct. 629 (1997); Individuals for <br>Responsible Gov't, Inc. v. Washoe County, 110 F.3d 699, 703-04 (9th <br>Cir.), cert. denied, 118 S. Ct. 411 (1997).  These courts <br>emphasized that the purpose of the dormant Commerce Clause is to <br>curtail states' abilities to hinder interstate trade, and that the <br>injury claimed by the individual garbage generators   being <br>compelled to pay higher prices for services they neither required <br>nor desired   was not even marginally related to this purpose.  SeeBen Oehrleins, 115 F.3d at 1382; Washoe County, 110 F.3d at 703. <br>     The HCC shares many attributes with the parties found to <br>lack standing in Ben Oehrleins and Washoe County.  It is made up of <br>individual trash generators who complain that under the 1997 <br>Ordinance they will be forced to contract with Andino, when <br>previously they could patronize other haulers (presumably at lower <br>prices or on more felicitous terms).  Despite this parallelism, <br>however, we need not decide whether we share the outlook of the Ben <br>Oehrleins and Washoe County courts.  It is a settled principle that <br>when one of several co-parties (all of whom make similar arguments) <br>has standing, an appellate court need not verify the independent <br>standing of the others.  See Clinton v. City of New York, 118 S. <br>Ct. 2091, 2100 n.19 (1998); Bowsher v. Synar, 478 U.S. 714, 721 <br>(1986); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 (1st <br>Cir. 1989).  We take refuge behind this principle today. <br>     Here, Faulkner, a co-plaintiff, satisfies both the <br>constitutional requirements and the prudential conditions for <br>standing.  He has lost the business of his residential customers in <br>Houlton; that injury can be traced directly to the Town's neoteric <br>waste management scheme; and the injury would be adequately <br>redressed by equitable relief and/or damages against the Town.  As <br>a classic plaintiff asserting his own economic interests under the <br>Commerce Clause   a constitutional provision specifically targeted <br>to protect those interests   Faulkner avoids any concerns relative <br>either to jus tertii, see Warth v. Seldin, 422 U.S. 490, 499 <br>(1975), or to the zone of interests requirement, see Valley Forge <br>Christian College v. Americans United for Separation of Church and <br>State, Inc., 454 U.S. 464, 475 (1982). <br>     We note, moreover, that Faulkner's claim to standing is <br>not damaged because he failed to allege that he hauled garbage out- <br>of-state or planned to do so.  In Commerce Clause jurisprudence, <br>cognizable injury is not restricted to those members of the <br>affected class against whom states or their political subdivisions <br>ultimately discriminate.  See General Motors Corp. v. Tracy, 519 <br>U.S. 278, 286 (1997).  Thus, an in-state business which meets <br>constitutional and prudential requirements due to the direct or <br>indirect effects of a law purported to violate the dormant Commerce <br>Clause has standing to challenge that law.  See id. at 286-87 <br>(collecting cases); see also Ben Oehrleins, 115 F.3d at 1379 <br>(affirming district court's finding of standing for in-state <br>haulers and landfill operators). <br>     That ends this phase of our inquiry.  Because Faulkner <br>has standing to challenge the 1997 Ordinance, we need not decide <br>whether the HCC has standing to mount a challenge in its own right. <br> <br> <br>III.  ANALYSIS <br>     The appellants find four fatal flaws in the Town's waste <br>management scheme:  (1) it insults the dormant Commerce Clause; (2) <br>it takes private property without just compensation; (3) it <br>impermissibly burdens contracts; and (4) its implementation by the <br>Town violates the municipal charter.  Only the first of these <br>contentions demands extended discussion. <br>     The first order of business requires us to remark the <br>underlying legal standard.  This appeal emanates from an order <br>granting summary judgment.  We have written extensively about that <br>procedural device, see, e.g., McCarthy v. Northwest Airlines, Inc., <br>56 F.3d 313, 314-15 (1st Cir. 1995) (collecting cases), and we need <br>only sketch the parameters here. <br>     A district court may enter summary judgment upon a <br>showing "that there is no genuine issue as to any material fact and <br>that the moving party is entitled to a judgment as a matter of <br>law."  Fed. R. Civ. P. 56(c).  In this instance, the district court <br>found that the Town had made such a showing and granted its motion <br>for brevis disposition on all counts.  We review orders for summary <br>judgment de novo, considering the record and all reasonable <br>inferences therefrom in the light most hospitable to the summary <br>judgment loser.  See Mullin v. Raytheon Co., 164 F.3d 696, 698 (1st <br>Cir. 1999).  This standard of review permits us to embrace or <br>reject the rationale employed by the lower court and still uphold <br>its order for summary judgment.  In other words, we may affirm such <br>an order on any ground revealed by the record.  See Hachikian v. <br>FDIC, 96 F.3d 502, 504 (1st Cir. 1996); Mesnick v. General Elec. <br>Co., 950 F.2d 816, 822 (1st Cir. 1991).  With this brief preface, <br>we turn to the substance of the appellants' asseverations. <br>                A.  The Commerce Clause Challenge. <br>     In terms, the Constitution empowers Congress "[t]o <br>regulate Commerce . . . among the several states."  U.S. Const. art <br>I,  8, cl. 3.  Over time, courts have found a negative aspect <br>embedded in this language   an aspect that prevents state and local <br>governments from impeding the free flow of goods from one state to <br>another.  This has come to be known as the "dormant Commerce <br>Clause."  The dormant Commerce Clause does not affect state or <br>local regulations directly authorized by Congress, see Southern <br>Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 769, (1945), <br>but, rather, acts as a brake on the states' authority to regulate <br>in areas in which Congress has not affirmatively acted, see Camps <br>Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 571 <br>(1997).  If a state or local government enters such uncharted <br>waters and enacts a law that unduly favors in-state commercial <br>interests over their out-of-state counterparts, that law <br>"routinely" will be defenestrated under the dormant Commerce Clause <br>"unless the discrimination is demonstrably justified by a valid <br>factor unrelated to economic protectionism."  West Lynn Creamery, <br>Inc. v. Healy, 512 U.S. 186, 192-93 (1994). <br>     The case at hand involves the application of the dormant <br>Commerce Clause to a municipal waste management scheme.  While the <br>issue is one of first impression in this circuit, we come upon the <br>scene finding the legal landscape already considerably cluttered.  <br>The Supreme Court has dealt with quandaries of this general kind <br>several times in the last decade.  See C & A Carbone, Inc. v. Town <br>of Clarkstown, 511 U.S. 383 (1994); Oregon Waste Sys., Inc. v. <br>Department of Envtl. Quality, 511 U.S. 93 (1994); Fort Gratiot <br>Sanitary Landfill, Inc. v. Michigan Dep't of Natural Resources, 504 <br>U.S. 353 (1992); Chemical Waste Mgmt., Inc. v. Hunt, 504 U.S. 334 <br>(1992).  Clarkstown is both the most recent and the most relevant <br>of these precedents, and we use it as a point of departure to put <br>into perspective the precise issue that confronts us. <br>     After the closing of its municipal landfill and the entry <br>of a consent decree with New York's Department of Environmental <br>Conservation, Clarkstown found itself in a situation similar to <br>that of Houlton.  See Clarkstown, 511 U.S. at 386-87.  In response, <br>the town contracted with a commercial entity to build a transfer <br>station within its borders (the Route 303 station), retaining the <br>right to purchase the transfer station for a nominal sum after five <br>years.  See id. at 387.  Clarkstown financed construction of the <br>Route 303 station by guaranteeing that a set level of trash would <br>be brought there and establishing above-market "tipping fees" to be <br>paid by garbage disposers.  See id.  In order to ensure the <br>fulfillment of this self-imposed quota, Clarkstown passed a flow- <br>control ordinance directing that all waste within its borders be <br>disposed of at the Route 303 station.  See id.  In defiance of this <br>directive, Carbone (a local trash hauler) transported waste from <br>Clarkstown to out-of-state landfills without passing it through the <br>Route 303 station and without paying tipping fees there.  See id.at 387-88.  Clarkstown sought an injunction, and Carbone defended <br>on Commerce Clause grounds. <br>     The New York courts ruled that the flow-control ordinance <br>passed constitutional muster.  See Town of Clarkstown v. C & A <br>Carbone, Inc., 587 N.Y.S.2d 681, 687-88 (App. Div.), appeal denied, <br>591 N.Y.S.2d 138 (1992).  The United States Supreme Court thought <br>otherwise.  It reversed, holding the ordinance unconstitutional.  <br>See Clarkstown, 511 U.S. at 394-95.  We find the architecture of <br>the Court's dormant Commerce Clause analysis instructive. <br>     The Court first addressed the threshold question of <br>whether the challenged ordinance discriminated on its face against <br>interstate commerce (as opposed to regulating commerce evenhandedly <br>with only incidental effects on interstate commerce).  See id. at <br>390; id. at 402 (O'Connor, J., concurring).  It noted that an <br>ordinance that discriminates on its face against interstate <br>commerce and in favor of local businesses is per se invalid, "save <br>in a narrow class of cases in which the municipality can <br>demonstrate, under rigorous scrutiny, that it has no other means to <br>advance a legitimate local interest."  Id. at 392.  The Court <br>further explained that if an ordinance is not discriminatory on its <br>face, a balancing test must then be performed to determine its <br>constitutionality.  See id. at 390.  Viewed in this less intense <br>light, the ordinance will stand unless the burden that it places <br>upon interstate commerce is "clearly excessive in relation to the <br>putative local benefits."  Id. (quoting Pike v. Bruce Church, Inc., <br>397 U.S. 137, 142 (1970)). <br>     Using these criteria, the Court adjudged Clarkstown's <br>flow-control ordinance discriminatory on its face; the ordinance <br>achieved its goal of providing the refuse necessary to finance the <br>Route 303 station "by depriving competitors, including out-of-state <br>firms, of access to a local market."  Id. at 386.  For this reason, <br>Justice Kennedy, writing for the majority, classified the ordinance <br>as merely another example of the type of local processing <br>requirement that the Court had invalidated with monotonous <br>regularity, observing that Clarkstown's scheme attempted to hoard <br>solid waste, just as states and municipalities in prior cases had <br>attempted to hoard other commodities for processing by local, as <br>opposed to out-of-state, interests.  See id. at 391-92.  To <br>illustrate the point, the Court cited, inter alia, earlier <br>decisions striking down schemes to "hoard"  timber, South-Central <br>Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984), milk, Dean Milk <br>Co. v. Madison, 340 U.S. 349 (1951), and meat, Minnesota v. Barber, <br>136 U.S. 313 (1890). <br>     In the jurisprudence of the dormant Commerce Clause, a <br>finding of facial discrimination is almost always fatal.  <br>Clarkstown proved no exception.  Though the municipality's <br>interests in the efficient processing and disposal of solid waste <br>and in financing its transfer station were legitimate concerns, the <br>Court abrogated the flow-control ordinance because those goals <br>could have been pursued through nondiscriminatory alternatives.  <br>See Clarkstown, 511 U.S. at 393. <br>     Our sister circuits have glossed the lessons of <br>Clarkstown somewhat differently.  In SSC Corp. v. Town of <br>Smithtown, 66 F.3d 502 (2d Cir. 1995), the Second Circuit <br>considered a binary waste management scheme consisting of (a) a <br>flow-control ordinance that required all municipal waste to be <br>disposed of at a facility designated by the town, see id. at 507, <br>and (b) a series of contracts with a discrete group of haulers for <br>particular areas of the town, in which Smithtown granted each <br>hauler an exclusive franchise for a specific area, required <br>disposal at the town's designated site, and financed the hauling <br>contracts through tax assessments, see id. at 507-08.  The court <br>found the scheme's first facet unconstitutional, believing that <br>Clarkstown compelled it to nullify the ordinance "because it <br>directs all town waste to a single local disposal facility, to the <br>exclusion of both in-state and out-of-state competitors."  Id. at <br>514.  The court nevertheless approved the scheme's second facet, <br>validating the town's use of exclusive hauling contracts under the <br>dormant Commerce Clause's market participant exception.  See id. at <br>514-18; see generally Hughes v. Alexandria Scrap Corp., 426 U.S. <br>794, 810 (1976) (holding that a state or municipality is outside <br>the purview of the dormant Commerce Clause   and thus may tilt in <br>favor of local businesses   when it enters a market as a <br>participant rather than as a regulator). <br>     On the same day it decided Smithtown, the Second Circuit <br>also decided USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272 <br>(2d Cir. 1995).  As part of its solid waste plan, Babylon had <br>entered an exclusive service agreement with a single hauler (BSSCI) <br>to remove all commercial waste and simultaneously had precluded the <br>licensing of other haulers.  See id. at 1278-79.  The town allowed <br>BSSCI to dispose of the trash that it collected without charge at <br>a municipally-owned, but privately-operated, incinerator.  See id.at 1277-79.  Moreover, it paid both BSSCI and the incinerator <br>operator with public funds.  See id. <br>     The court held that Babylon's scheme did not discriminate <br>on its face against interstate commerce, but merely eliminated the <br>commercial market for garbage collection services, substituting for <br>it the town's provision of those services through a private <br>contractor.  See id. at 1283.  The court also held that Babylon's <br>grant of an exclusive franchise and free disposal rights to its <br>chosen contractor constituted market participation, exempt from the <br>requirements of the dormant Commerce Clause.  See id. at 1288-89. <br>     In the dim afterlight of Clarkstown, another court of <br>appeals has spoken on the subject of flow control and the dormant <br>Commerce Clause.  See Harvey & Harvey, Inc. v. County of Chester, <br>68 F.3d 788 (3d Cir. 1995).  Acting pursuant to state law, the <br>county commissioners of Chester, Pennsylvania, adopted a solid <br>waste plan and a flow-control ordinance.  See id. at 794.  The <br>ordinance created two service areas and required all garbage in <br>each area to go to a designated landfill within that area (save <br>only for a certain amount of waste allocated to a third in-state <br>landfill nearby).  See id. at 794-95.  Harvey & Harvey, Inc., an <br>interstate hauler and processor, challenged the plan under the <br>dormant Commerce Clause.  The district court ruled that the plan <br>did not discriminate on its face against interstate commerce and <br>that application of the Pike balancing test was warranted.  See id.at 795.  Because Harvey & Harvey conceded that it could not prove <br>its case under that standard, the court entered judgment for the <br>defendant. <br>     On appeal, the Third Circuit acknowledged that, under <br>Clarkstown, a flow-control ordinance favoring a single in-state <br>operator over all other in-state and out-of-state operators might <br>be vulnerable to attack under the dormant Commerce Clause.  See id.at 798.  Still, the court observed that not all such ordinances <br>would suffer such a fate.  See id.  Similarly, "[t]hat [an] <br>ordinance requires the use of [a] selected facility, thus <br>prohibiting the use of non-designated facilities (which may be out <br>of state), does not itself establish a Commerce Clause violation."  <br>Id.  Thus, although the grant of an exclusive contract to a local <br>waste hauler/processor is suspect, it is not a per se violation of <br>the dormant Commerce Clause.  See id. at 801. <br>     The Third Circuit then explained that, to secure a <br>finding of discrimination vis--vis a flow-control scheme that <br>excludes all out-of-state haulers and/or processors and most in- <br>state haulers and/or processors, the challenger must show that <br>those excluded did not have a fair opportunity to obtain the town's <br>custom.  If the playing field is level for both in-state and out- <br>of-state bidders, such parity ordinarily will satisfy the <br>constitutional imperative.  See id. at 802.  Under this standard, <br>"a local authority could choose a single provider   without <br>impermissibly discriminating against inter-state commerce   so long <br>as the selection process was open and competitive and offered truly <br>equal opportunities to in- and out-of-state businesses."  Id.  The <br>court of appeals then asked the district court to reconsider Harvey <br>& Harvey's plaint in light of the newly articulated standard.  Seeid. at 807. <br>     Against this backdrop, we inquire whether the 1997 <br>Ordinance enacted by the Houlton Town Council discriminates on its <br>face against interstate commerce.  Like Clarkstown's ordinance, the <br>challenged ordinance and the contract granted ancillary to it <br>funnel all residential waste through a single contractor.  Because <br>of that similarity, the appellants chant the Clarkstown catechism, <br>claiming that Houlton's scheme "deprives out-of-state businesses of <br>access to a local market," Clarkstown, 511 U.S. at 389, and thereby <br>"discriminates, for it allows only the favored operator to process <br>waste that is within the limits of the town," id. at 391.  Houlton <br>dismisses the analogy to Clarkstown.  In its view, the more apt <br>analogy is to Smithtown's second facet because Houlton, like <br>Smithtown, became the only buyer in the local garbage market by <br>means of the 1997 Ordinance and, acting as a market participant, <br>hired Andino to service its garbage needs.  Alternatively, the Town <br>compares its position to Babylon's because it took over the garbage <br>collection market while acting as a regulator, and then privatized <br>its own provision of collection services, acting as a market <br>participant. <br>     This last argument proved persuasive below.  Following <br>the Babylon court's lead, the district judge considered the two <br>parts of Houlton's waste management scheme separately.  Initially, <br>he ruled that the 1997 Ordinance constituted market regulation and, <br>like Babylon's ordinance, served merely  to eliminate the private <br>sector from the garbage collection business.  See HCC I, 982 F. <br>Supp. at 43-44.  Still concentrating on the ordinance, the judge <br>noted that Houlton had become "the lone provider of [collection] <br>services and ha[d] hired Andino to furnish these services on its <br>behalf subject to the Town's supervision and control."  Id. at 45.  <br>On this basis, he concluded that the 1997 Ordinance did not <br>facially discriminate against interstate commerce.  See id. at 46.  <br>Finally, he performed the requisite balancing test and declared the <br>ordinance constitutional.  See id. <br>     The judge also considered the Town's contract with Andino <br>and found that, under this contract, "Houlton is acting as a <br>'buyer' in the garbage collection, disposal, and processing <br>markets, and enters those markets 'with the same freedoms and <br>subject to the same restrictions as a private party.'"  Id. at 44 <br>(quoting Smithtown, 66 F.3d at 509).  Because the Town acted as a <br>market participant in dealing with Andino, the judge concluded, the <br>contract between the two escapes scrutiny under the dormant <br>Commerce Clause.  See id. <br>     For two reasons, we are reluctant to place our imprimatur <br>on the district court's bifurcated analysis.  First, Smithtown and <br>Babylon are cutting-edge decisions, and it is unclear to us whether <br>or not the Supreme Court eventually will adopt their ratiodecidendi.  Second, and perhaps more important, although Houlton's <br>waste management scheme shares some features of the Smithtown and <br>Babylon schemes, it differs significantly in requiring that those <br>municipal residents who do not choose to tote their own garbage <br>contract individually with the Town's designated hauler for the <br>purpose of removing residential refuse. See 1997 Ordinance  10- <br>507(1).  Moreover, even self-haulers are required to use a <br>designated transfer station.  See id.  10-504.  The ordinance thus <br>explicitly creates forced business transactions   an element that <br>was present in Clarkstown, but lacking in the Second Circuit cases <br>(both of which involved arrangements that avoided forced <br>transactions by the simple expedient of appropriating tax dollars <br>to fund waste management services).  This distinction cannot be <br>disregarded, for the Second Circuit's market participation analysis <br>in Smithtown and its finding of nondiscrimination in Babylon were, <br>at least to some extent, dependent on those communities' <br>expenditures of public funds in support of their contractual <br>arrangements.  See Smithtown, 66 F.3d at 515 (noting that <br>"Smithtown is spending tax dollars to pay for both [waste <br>collection and disposal] services"); Babylon, 66 F.3d at 1283 <br>(distinguishing Clarkstown on the ground that "the payment of taxes <br>in return for municipal services is not comparable to a forced <br>business transaction"). <br>     We need not probe this point too deeply, however, for the <br>case at hand can be resolved in a more straightforward fashion.  We <br>do not interpret Clarkstown as explicating a broad-based ban on <br>every flow-control ordinance that happens to be coupled with an <br>exclusive contractual arrangement in favor of an in-state operator.  <br>To suggest that every such ordinance violates Clarkstown would <br>stretch both Justice Kennedy's language and the logic of the <br>dormant Commerce Clause past the breaking point. <br>     The core purpose of the dormant Commerce Clause is to <br>prevent states and their political subdivisions from promulgating <br>protectionist policies.  See, e.g., Camps Newfound/Owatonna,  520 <br>U.S. at 578 (citing "economic isolationism" as "the very evil that <br>the dormant Commerce Clause was designed to prevent"); New Energy <br>Co. v. Limbach, 486 U.S. 269, 273-74 (1988) (explaining that the <br>"'negative' aspect of the Commerce Clause prohibits economic <br>protectionism   that is, regulatory measures designed to benefit <br>in-state economic interests by burdening out-of-state <br>competitors"); see also Clarkstown, 511 U.S. at 390 ("The central <br>rationale for the rule against discrimination is to prohibit state <br>or municipal laws whose object is local economic protectionism, <br>laws that would excite those jealousies and retaliatory measures <br>the Constitution was designed to prevent.").  It follows, <br>therefore, that if local legislation leaves all comers with equal <br>access to the local market, it does not offend the dormant Commerce <br>Clause.  See CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 94 <br>(1987); Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 471-72 <br>(1981); Harvey & Harvey, 68 F.3d at 802.  In other words, to the <br>extent that in-state and out-of-state bidders are allowed to <br>compete freely on a level playing field, there is no cause for <br>constitutional concern. <br>     It is a logical next step that when the Commerce Clause <br>inquiry focuses on a state or local plan that culminates in an <br>award of an exclusive contract to one of several aspirants (actual <br>or potential), the process by which the contractor is chosen <br>assumes great importance in determining the plan's <br>constitutionality vel non.  See Harvey & Harvey, 68 F.3d at 801.  <br>After all, in-state interests are not unduly pampered, nor out-of- <br>state competitors unduly burdened, when a municipality awards an <br>exclusive contract to a low bidder (from whatever state or region) <br>after a fair and  open bidding process.  In such circumstances, <br>unrestricted access to the bidding process constitutes unrestricted <br>access to the relevant market. <br>     Applying this tenet, Houlton's 1997 Ordinance does not <br>flout the dormant Commerce Clause.  Andino did not become the <br>Town's contractor in a backroom deal, cutting potential competitors <br>off at the pass, but, rather, earned the Houlton contract through <br>its successful completion of a well-advertised, fully competitive <br>bidding process that was accessible to all who coveted the <br>business.  The Town issued a detailed RFP after holding a widely <br>publicized meeting, open to all prospective bidders, at which such <br>prospective bidders were able to comment on, and ask questions <br>about, the project.  The record contains no hint that the Town <br>restricted the bid protocol to a particular class of bidders, <br>shaped it to favor in-state operators, or slanted it in any way <br>against out-of-state purveyors.  The RFP itself includes no terms <br>that either give in-state operators a leg up or disadvantage their <br>out-of-state rivals. <br>     In point of fact, the RFP allows any bidder willing and <br>able to haul and dispose of Houlton's trash to submit a proposal.  <br>It does not lock bidders into using a particular transfer station; <br>on the contrary, its terms permit the successful bidder to contract <br>with whomever the bidder chooses (in-state or out-of-state) to <br>process the garbage and effectuate disposal at any lawful site <br>within or without the state.  Furthermore, the RFP  specifically <br>notes that bidders may request deviations or file alternative <br>proposals. <br>     In response to the RFP, the  Town received multiple bids.  <br>It awarded the contract to Andino   the low bidder.  The contract's <br>seven-year term, though lengthy, does not seem excessive <br>considering the relatively substantial commitment of equipment and <br>other resources required on the successful bidder's part   and <br>nothing about this duration impacts out-of-state operators <br>differently than their in-state competitors.  In short, this open <br>and freely accessible bidding process ensured a level playing field <br>for all interested parties and provided sufficiently broad market <br>access to quell Commerce Clause concerns.  Consequently, the Town's <br>garbage disposal scheme does not constitute a per se violation of <br>the dormant Commerce Clause, but instead regulates commerce <br>evenhandedly, with no more than incidental effects on interstate <br>trade. <br>     This brings us to the balancing test.  Under this test, <br>we must uphold the 1997 Ordinance "unless the burden imposed on <br>[interstate] commerce is clearly excessive in relation to the <br>putative local benefits."  Pike, 397 U.S. at 142.  In light of the <br>strong local interest in efficient and effective waste management <br>and the virtually invisible burden that the Town's scheme places on <br>interstate commerce, Houlton passes this test with flying colors.  <br>See generally Northwest Cent. Pipeline Corp. v. State Corp. Comm'n, <br>489 U.S. 493, 525-26 (1989); Arkansas Elec. Coop. Corp. v. Arkansas <br>Pub. Serv. Comm'n, 461 U.S. 375, 394-95 (1983).  Hence, the <br>district court did not err in entering summary judgment against the <br>appellants on their Commerce Clause claim. <br>                     B.  Remaining Arguments. <br>     The appellants' three remaining arguments need not detain <br>us.  We note briefly why we regard two of them as unavailing, and <br>why we conclude that the third should be left to the state courts. <br>     1.  The Takings Clause.  The Fifth Amendment's mandate <br>that private property shall not be taken for public use without <br>just compensation applies to the states and their political <br>subdivisions through the Fourteenth Amendment.  See Chicago, <br>Burlington & Quincy R.R. Co. v. Chicago, 166 U.S. 226, 239 (1897).  <br>This protection is not restricted to physical invasions, <br>occupations, or removals of property; in some cases, overly <br>assiduous government regulation can create an unconstitutional <br>taking.  Whether a particular restriction implicates the Takings <br>Clause is context-sensitive and hinges on the specific <br>circumstances.  See Penn Cent. Transp. Co. v. New York City, 438 <br>U.S. 104, 124 (1978); United States v. Central Eureka Mining Co., <br>357 U.S. 155, 168 (1958).  In mounting such inquiries, courts must <br>weigh especially the character of the government action, its <br>economic impact on the plaintiff, and the degree to which it <br>interferes with the plaintiff's reasonable, investment-backed <br>expectations.  See Philip Morris, Inc. v. Harshbarger, 159 F.3d <br>670, 674 (1st Cir. 1998). <br>     Faulkner perceives a regulatory taking in this case <br>because, after operating his trash-collecting business in Houlton <br>for many years unfettered by municipal tethers, the passage of the <br>1997 Ordinance curbed his activities and dried up a significant <br>income stream.  But this argument swims against a powerful tide:  <br>courts steadfastly have rejected the proposition that the grant of <br>an exclusive contract for refuse collection constitutes a taking <br>vis--vis other (competing) trash haulers.  See California <br>Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 321-323 <br>(1905); Gardner v. Michigan, 199 U.S. 325, 330-31 (1905); Tri-State <br>Rubbish, Inc. v. Waste Mgmt., Inc., 998 F.2d 1073, 1082 (1st Cir. <br>1993).  Since we have no reason to question the continuing vitality <br>of this impressive string of cases, we affirm the district court's <br>grant of summary judgment in favor of the defendant on the takings <br>claim. <br>     2.  The Contract Clause.  The Contract Clause declares <br>that:  "No State shall . . . pass any . . . Law impairing the <br>Obligation of Contracts."  U.S. Const. art. I,  10, cl. 1.  <br>Despite the majestic sweep of this language, the Contract Clause is <br>not energized unless a contractual relationship exists, that <br>relationship is impaired by a change in the law, and the resultant <br>impairment is substantial.  See General Motors Corp. v. Romein, 503 <br>U.S. 181, 186 (1992); McGrath v. Rhode Island Retirement Bd., 88 <br>F.3d 12, 16 (1st Cir. 1996).  The first two parts of this inquiry <br>are, as in this case, often easily satisfied.  Faulkner enjoyed <br>garbage collection contracts with approximately 75 Houlton <br>residents, and the 1997 Ordinance effectively prevents him from <br>fulfilling those contracts.  Thus, the controlling question is <br>whether this impairment should be regarded as substantial. <br>     In order to weigh the substantiality of a contractual <br>impairment, courts look long and hard at the reasonable <br>expectations of the parties.  In this inquiry, it is especially <br>important whether the parties operated in a regulated industry.  <br>See Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 <br>U.S. 400, 413 (1983); Mercado-Boneta v. Administracion del Fondo de <br>Compensacion al Paciente, 125 F.3d 9, 13 (1st Cir. 1997).  While <br>Faulkner and his garbage collection customers did business for many <br>years uninhibited by any regulation precisely akin to the 1997 <br>Ordinance, they would have had to be troglodytes not to have known <br>that the waste collection and disposal industry is subject to <br>fairly pervasive regulation.  See, e.g., Clarkstown, 511 U.S. at <br>386 (collecting recent Supreme Court cases dealing with the <br>validity of various aspects of such regulation).  Indeed, Houlton's <br>foray into flow control was prompted by the continued regulatory <br>efforts of the State of Maine.  In this vein, while the 1995 <br>Ordinance eventually proved abortive, it plainly adumbrated for <br>Faulkner and his customers that change was in the wind.  The <br>general condition of regulation in the waste management industry <br>and the specific foreshadowing provided by Houlton's action in 1995 <br>should have led Faulkner to realize that his collection contracts <br>could not be maintained ad infinitum. <br>     Viewed through this prism, the question whether the <br>impairment worked by the 1997 Ordinance meets the test of <br>substantiality is close.  We need not decide that close question, <br>however, for even a state law that creates a substantial impairment <br>does not transgress the Contract Clause as long as it is <br>appropriate for, and necessary to, the accomplishment of a <br>legitimate public purpose.  See Energy Reserves, 459 U.S. at 412; <br>Mercado-Boneta, 125 F.3d at 15.  "The requirement of a legitimate <br>public purpose guarantees that the State is exercising its police <br>power, rather than providing a benefit to special interests."  <br>Energy Reserves, 459 U.S. at 412.  The 1997 Ordinance addresses <br>itself specifically to "ensur[ing] reliable provision of collection <br>and hauling services which will further the interest of public <br>health and safety."  1997 Ordinance (preamble).  Health and safety <br>are two mainstays of the police power.  See, e.g., Allied <br>Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978).  Thus, <br>this stated purpose and the ordinance's goal to achieve economies <br>of scale for the benefit of Houlton's residents, see 1997 Ordinance <br>(preamble), fit well within the category of remedies for "broad and <br>general social or economic problem[s]" that the Supreme Court has <br>stated will meet its criteria of legitimacy in a Contract Clause <br>context, Energy Reserves, 459 U.S. at 412. <br>     Upon finding a legitimate public purpose, the next step <br>ordinarily involves ascertaining the reasonableness and necessity <br>of the adjustment of contract obligations effected by the <br>regulation to determine finally whether the regulation offends the <br>Contract Clause.  See id.; Mercado-Boneta, 125 F.3d at 15.  Withal, <br>an exception to this rule exists when the contracts at issue are <br>private and no appreciable danger exists that the governmental <br>entity is using its regulatory power to profiteer or otherwise <br>serve its own pecuniary interests.  In such instances, a court <br>properly may defer to the legislature's judgment.  See Energy <br>Reserves, 459 U.S. at 413; Mercado-Boneta, 125 F.3d at 15.  So it <br>is here:  by enacting the 1997 Ordinance, the Town has reshaped the <br>conduct of waste removal within its borders, but has not altered <br>its own fiscal obligations.  The waste management system   <br>collectively, the ordinance and the contract entered into pursuant <br>to it   neither requires the outlay of public funds nor relieves <br>the Town's coffers of any financial burdens.  Accordingly, we defer <br>to the Town Council's judgment that the system it created through <br>the 1997 Ordinance is a moderate course designed to achieve the <br>permissible purposes stated in the ordinance's preamble.  Because <br>the 1997 Ordinance, so viewed, is reasonable in light of the <br>circumstances, see Mercado-Boneta, 125 F.3d at 15, the district <br>court did not err in resolving the Contract Clause claim against <br>the plaintiffs. <br>     3.  The Town Charter.  The appellants do not dispute that <br>the initial contract between Andino and the Town was secured <br>through a fair and open competitive bidding process in which Andino <br>was the successful low bidder.  This process was mandated by, and <br>fully conformed to, the requirement that "[a]ll purchases by the <br>Town of property, services, and contract rights which exceed five <br>thousand dollars ($5,000.00) shall be conducted by sealed, <br>competitive bidding."  Houlton Town Charter  512,  3.  They <br>assert, however, that the Town violated the charter when it <br>renegotiated Andino's contract to bring it in line with the 1997 <br>Ordinance.  The district court rejected this assertion, holding <br>that there was no need for a new round of bidding, and that the <br>renegotiated contract was valid.  See HCC II, 11 F. Supp.2d at 111- <br>12. <br>     We think that this scenario presents a close question of <br>state law   and one that the district court did not need to reach.  <br>After all, the district court had no independent jurisdiction over <br>the town charter claim; and, although 28 U.S.C.  1367 allows a <br>district court that has jurisdiction over a series of federal <br>claims to entertain related state-law claims that "form part of the <br>same case or controversy," id., it does not oblige the court to <br>continue with those claims if, prior to trial, it disposes of the <br>federal claims.  Where, as here, the federal claims upon which the <br>court's jurisdiction depends are resolved before trial, section <br>1367 confers upon the judge the authority to dismiss a supplemental <br>state-law claim without prejudice.  See Rodriguez v. Doral Mortgage <br>Corp., 57 F.3d 1168, 1177 (1st Cir. 1995); Martinez v. Colon, 54 <br>F.3d 980, 990 (1st Cir. 1995). <br>     In this instance, the town charter claim is not only <br>difficult, but also novel as a matter of state law.  The litigation <br>was in the early stages.  Under the circumstances, we conclude that <br>dismissal without prejudice clearly was the option of choice, and <br>that the district court should not have ventured to adjudicate the <br>town charter claim.  See Rodriguez, 57 F.3d at 1177 (admonishing <br>that "a federal court may be wise to forgo the exercise of <br>supplemental jurisdiction when the state law that undergirds the <br>nonfederal claim is of dubious scope and application"); see also 28 <br>U.S.C.  1367(c)(1). <br>IV.  CONCLUSION <br>     We need go no further.  The Town of Houlton's adoption of <br>a flow-control ordinance, coupled with its grant of an exclusive <br>hauling and disposal contract to a local contractor, does not <br>discriminate on its face against interstate commerce because both <br>in-state and out-of-state providers were allowed to compete for <br>this contract on the same footing.  Moreover, since any incidental <br>effects that this waste management scheme may have on interstate <br>commerce correspond to legitimate local interests in efficiency and <br>public health, the plan does not violate the dormant Commerce <br>Clause.  By like token, it does not work an unconstitutional taking <br>or impermissibly impugn private contracts.  Finally, because the <br>town charter claim depends entirely on state law, we think that the <br>better course is to leave that claim to be litigated in the state <br>courts (should the appellants choose to press it).  We therefore <br>direct the district court to modify its judgment to provide that <br>the appellants' claim under the Houlton Town Charter is dismissed <br>without prejudice. <br> <br>Affirmed as modified.  Costs in favor of the appellee.</pre>

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