American Trucking Associations v. City of Los Angeles

Opinion by Judge B. FLETCHER; Dissent by Judge N.R. SMITH.

ORDER

The majority opinion filed September 26, 2011, slip op. 18193, is hereby amended as follows:

OPINION

Beginning in 2008, the Port of Los Angeles (POLA, or the Port) prohibited motor carriers from operating drayage trucks 1 on Port property unless the motor carriers entered into “concession agreements” with the Port. The concession agreements set forth fourteen specific requirements covering, among other things, truck driver employment, truck maintenance, parking, and Port security. The agreements were adopted as part of the Port’s “Clean Truck Program” (CTP), which includes a progressive ban on older (and higher-polluting) trucks on Port property, a multi-faceted incentive program to support acquisition of clean trucks, and a system of penalties on transport of cargo by older trucks. The Port adopted the CTP in response to community opposition, including litigation, that had successfully stymied Port growth from the mid-1990s through 2007.

American Trucking Associations, Inc. (ATA, a national association of motor carriers), 2 challenges the concession agreements, arguing that they are preempted by the Federal…

dissenting in parts III.B., III.C., IV.B., IV.C., and TV.E. of the majority opinion:

I must dissent from the majority opinion because: (1) the market participant exception to preemption does not apply. Dray-age services (not port services) form the relevant market, and the Port of Los Angeles (the “Port”) acts as a regulator of drayage services. (2) Even assuming the Port qualifies as a proprietor, the off-street parking provisions are preempted, because they affect parties unrelated to contractual obligations to the Port. (3) The placard provision is preempted and not saved by the market participant doctrine or the safety exception, because California cannot revoke access to channels of interstate commerce and identification requirements on motor carriers are expressly preempted under 49 U.S.C. § 14506 (a).

I. Market Participant Exception

The Port acts as a regulator (rather than a market proprietor) of drayage services. It is therefore ineligible for the “market participant” defense to federal preemption. We apply a two-prong test for distinguishing proprietary from regulatory actions:

Johnson v. Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1023-24 (9th Cir.2010)…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMERICAN TRUCKING ASSOCIATIONS, 

INC.,

Plaintiff-Appellant, v. THE CITY OF LOS ANGELES; THE No. 10-56465

HARBOR DEPARTMENT OF THE

CITY OF LOS ANGELES; THE D.C. No. BOARD OF HARBOR  2:08-cv-04920-

COMMISSIONERS OF THE CITY OF LOS CAS-CT

ANGELES, OPINION

Defendants-Appellees,

NATURAL RESOURCES DEFENSE

COUNCIL; SIERRA CLUB;

COALITION FOR CLEAN AIR, INC.,

Defendants-intervenors-Appellees.  Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted June 10, 2011—Pasadena, California

Filed September 26, 2011

18193 18194 AMERICAN TRUCKING ASSOCIATIONS v. LOS ANGELES Before: Betty B. Fletcher and N. Randy Smith, Circuit Judges, and Rudi M. Brewster, District Court Judge.*

Opinion by Judge B. Fletcher; Dissent by Judge N. R. Smith

*The Honorable Rudi M. Brewster, Senior District Court Judge for the U.S. District Court for Southern California, San Diego, sitting by designa- tion. 18198 AMERICAN…