it please the court my name is steve champ europe and i represent the petitioners in this matter the auction block company and its related entity harbor leasing l l c first i'd like to say i'm pleased you all saw alaska with some sunny weather i'd also like to thank you for granting oral argument and in addition i'd like to thank you for giving us a few extra minutes to present our arguments i would like to state at the outset that i will not be able to address all of the arguments in our brief but i would like to make the point that we are waiting in the arguments simply because we will be able to get to them really this issue involves two fundamental concerns one the rules and second jurisdiction but i'd like to do really is focus on jurisdiction without jurisdiction this matter won't go forward i cited that the two cases i think you are most familiar with from the supreme court to discuss the distinction between personal jurisdiction and subject matter jurisdiction that distinction is also recognized by the federal maritime commission at least up until this decision the auction block company there are two decisions recent decisions by previous commissioners and commissions one of them is canaveral port authority and the other is by state motors now i cited those to the commission when we appeal neither of them are even mentioned in the decision the government does have a string site to canaveral or to thore but neither of those are discussed and you may want to inquire of the government of the put ability of those two statutes in the federal maritime commission they do recognize this distinction between personal interest action and subject matter jurisdiction they'll take a look at those two cases the f m c specifically says we want to make sure that the parties recognize this distinction and they set it forth almost to a spot the court in this case to bring a claim my client has to be a person and if you see that the definition of person is very broad i don't think it excludes anyone that that is met the action has to be brought against the marine terminal operator now that is a matter of personal jurisdiction i thought i'd just have to stop you right there because that strikes me as completely wrong why would it be a matter of personal jurisdiction if whether the subject matter of the dispute is even within the realm of something the f m c can can decide to a number of decisions going all the way back to california versus united states when justice frankfurter was taking a look at the earlier definition of marine terminal operator stated that it really has to do with whether or not that operator should be before the commission to determine whether or not the claims of prejudice are discrimination or whatnot are well founded but nobody is disputing that if this does fit the put it this in this way nobody is disputing that if this particular claim that you're raising  dispute arises out of a different doc one the from not doesn't can't give rise to a dispute that's within the subject matter jurisdiction but c'mon it that's not the test it really is and if you take a look at the line of cases it has been consistent for the last ninety nine years since  when you take a look at the port you take a look at the court activities there's a number of cases that have consistently said you don't take a look at some of the areas and that was never even suggested as an issue i still submit and i hope when you review this record you'll see that it's a i don't know your honor in addition they never raised an objection but but i can understand why there would be a challenge to the overall jurisdiction of the federal maritime commission which might sound and subject matter jurisdiction but i can't see that there's any argument here about personal jurisdiction i believe that the port and the city of homer are properly before this court and the test for subject matter jurisdiction focuses exclusively on whether or not the causes of action arise under the shipping act that is the focus of the activities and what we have here are care of us that are prepared and within the exclusive control of the city and port of homer and those define the jurisdiction of the the tariffs and then of the commission you do have these different ports but keep in mind even though the auction block focuses most of its activities the fish dock it also has testimony in there that it sells fish to the crew ships that come up here and visit their common carriers there at the deepwater dock they made a decision prudently to support the local industry then what you've got is even by their definition which we believe was way because it goes to personal jurisdiction what you've got is the auction block competitor icicle which no longer has the shore based plant and instead is it the deepwater dock now the deepwater dock does service common carriers and argument is to take a look at the tariffs and you'll see that any entity any person that uses the terminal services or facilities of the respondents is deemed to agree to the terms of the tariffs and so you've got common carriage at the deep water dark you've got the the competitor icicle at the deepwater dock we've argued that they should look broadly and see that these tariffs apply to a number of entities that are operating at different docks in addition icicle makes use of the fished out so there's activities at both docks just put the issue maybe in slightly different terms from what you've been arguing because i see this as a relatively straightforward issue of whether the commission's reading of the statues and titles chevron deference or not you're you know your reading of the definition of marine marine terminal operator it doesn't matter which particular doc the dispute arises out of but obviously the commission has rejected that reading it's adopted a facility specific interpretation of the statute and it seems to me the only question before us is whether under chevron that reading  statute is reasonable or not and so far you haven't really addressed that question although if you i should put it to you thank you chevron will compel the courts to take a look at the intent of congress and this commission and the court are supposed to give effect to the intent of congress and you'll note congress did have a chance to revisit the shipping act in one thousand nine hundred nine and when congress addresses legislation are assumed to be aware of the status of the law in the interpretations and i would submit that consistently there is not a decision that says that the f m c will look at a port by court basis there's a focus discussion by the judge in oral white and in that case he actually asked the bureau in forstmann which is within the federal maritime commission to provide testimony it's not a party and came in and they stated that there has never been a port by port analysis with that first circuit decision certainly adopted that  had been brought in the d c circuit the d c circuit might have found jurisdiction the two big cases in the jurisdiction are picked him and that was was authored by judge buckley who i think generally was fairly constrained in his views of the jurisdiction of every entity and then you've got what was called plaquemines to see what the what the courts really look at is whether or not you're dealing with terminal services or whether you're dealing with navigation services and what we've pointed out here for the subject matter jurisdiction this no there's no room for discussion and if we think that the agency has taken a different view we can simply have ruled them the second is if if a statute is not clear whether the agencies interpretation of the statue's reasonable i would step out of what i think your honor the first step is met that if you take a look at so there's no reason for us to defer to the agency at all here because that's what is so clear what in the statute is so clear that the that the answer is compelled here by the statute that this statute has been reviewed by many court to tell me what the tell me what provision of the statute you're reading the statute is actually a definitional provision it's not in the substantive part of the statute it's a provision involves marine terminal operators ok and that would be going to you can you just tell me which provision of the statute i mean what what's actually were in its forty i think it's a forty six for a one zero to fourteen yes yes and in that case the decades of cases have from both the mystery of largest the commission the circuit courts have said that once there is some service to common carrier you want the f m c to be able to oversee the activities because there is some impact on international commerce and in this case i think that really the intent of congress is clear in this case and all of the other courts have seen it if you could ask the government to cite one case where they've done a sub area by some very analysis that was suggested for the first time an affidavit months after discovery closed and it wasn't even a legal argument they didn't suggest it's a late argument regarding personal jurisdiction now the second element of chevron is does the commission decision frustrate the policy that congress ought to implement we believe it does cities by their very nature have a monopoly in an area and over a people in this case the city owns all of the docks and facilities if there is any way to land on shore it is control owned and regulated exclusively by the city i mean there are some rock there are some sand and beach and whatnot but those aren't areas where they can land so in this case congress has given the city an exemption from all the antitrust laws and we tried to bring antitrust action under federal or state law in federal state court bacon site to the shipping act and say that we are given this exemption from antitrust law we're clearly a monopoly there's clearly what might be called antitrust activity and what's happened in our scheme of government is those activities are directed to the federal maritime commission and you really have to take a look at the tariffs because this is the tariff dispute and those tariffs are controlling they're not discussed in the commission decision they're not discuss other than generally by the government but that is where the city can set forth what it controls what it owns and the rates and this is really a simple case where they never challenge these personal jurisdiction issue and clearly is here in the subject matter jurisdiction of the federal maritime commission because the commission has to regulate enough the city is the only player in town there are no other private why would congress want the commission to be concerned with  calling it all the other parts right but not the one that because it's not sufficient all right we're not even sure if they are we weren't allowed to undertake any discovery of that issue you'll note there was if it is a personal jurisdiction issue which i'm convinced it is but it's not and i'm not going to be convinced on that point so try to frame think of it in terms of subject matter jurisdiction that would that would help me take a look at the tariffs and see how the c v defines its jurisdiction and its authority and its able to determine who is able to use the various facilities there's no suggestion in there that they look at sub areas or whatnot but no but i thought it was undisputed that no common carriers at least those that term is defined under the statute call at the harbor and you don't have the large ocean going vessels that are common carriers able to get in at the fish dock i mean all you'd have to do in order to satisfy your burden it seems to me is put in an affidavit from somebody from somebody  to agreements pretty common carriers so long as they submit to commission regulation commission also regulate were in terminal operators to make that regulation of coming here defective merge will operators or persons who provide trauma facilities in connection with common carriers all for all purposes even as to active use not in connection with common carriers let me ask you just looking at the definition of marine terminal operator  of the statute certainly doesn't have this facilities you know facilities specific qualification to it right i mean just says you're a marine terminal operator if you provide terminal facilities in connection with a common carrier and it seems to me it's undisputed that the city of homer does right at these other two ports nobody's disputing that and if this dispute arose out of something connected to one of those two ports i being different only applies when engaging in providing for most services in connection with common carrier and in connection with say in connection with coming carrier at the facilities at issue or in connection becoming carrier everywhere such is not clear that issue at all affirmed fine that is due to common sense and rational regulation to be some limit to the commission's authority that applies here as well and the court took a similar view in the first authority case i i think offers you some some support but the but there's a difference there because the three ports that were at issue in the puerto rican case are three different cities located in three different very different parts of puerto rico we've got we've got three docks that are adjacent to each other we're talking about one port the port of homer with three separate docks it's a little bit a little bit different i mean this is the this is much more micro look at the facility by facility or port by  port authority that the f m c is claiming it is a closer piece but only geographically there's no living principle traditional view that you can look at a pick and choose between just reports and here it's appropriate to look at the fish dock because all the allegations of trip to the entire ports and port canaveral importantly in those cases the commission did not look around to see if the ports authority in those cases were operating at other course so here because of the complaint all the what's at issue is fish dock so it's appropriate for a commission to look at fish stock you are starting to say that your commissions sort of facility specific interpretation of the statute is consistent with the broader purposes of the shipping back and maybe you can elaborate on that a little bit right here because of the operations at the deepwater dock would also be obligated to or going to all sorts of conduct with no connection to common carriers for instance under forty six u s c four one one  nothing in the history or structure of the act that indicates that congress intended the commission for instance to regulate an employment agreement can appoint discrimination claim by employee of return to offer it or the commission in this case found a their view there is some linkage between what's going on at the i don't know if it's the deepwater dock or the other one and what's going on at the fish dock because i use it i suppose that the other entity that's involved if your honor so i mean i could imagine a scenario in which let's say there is a linkage between the treatment that the city of homers giving icicle let's say with respect to facilities at the deepwater dock and what's going on at the fish dock and it seems to me why wouldn't the petitioner be able to say this is perfectly within the purpose of the statue i can't i'm not able to think of the hypotheticals but if it you're better able to do what if there were some sort of link between what's going on at the deep water dog that could be considered an actual on calling on a facility we don't have that here and then some other cases talk about what it doesn't mean but in the example you gave of the work connection commission commission has declined to exercise jurisdiction here have any impact on whether or not auction block could bring in a trust suit so i understand there's some and i trust immunity under the under the shipping act but if the f m c has decided that there is no that they have no jurisdiction under the shipping at does not affect the and i trust immunity that the city might might be able to assert no it would still have that immunity i mean if the commission took jurisdiction then you have an issue of whether there are agreements they had might fall within the limited interest immunity granted by the shipping act does the designer block have any other any of the remedy a common law state statute anything to claim that they're being treated in a discriminatory fashion by the city i mean they have the full recourse to state law all federal law all the political process they can do all of that but the committee it's not some of the commission is involved with these operations when there's sort of just the fish talk there's no evidence of connection when you say they have the issue to subject matter jurisdiction or akin to something matter jurisdiction which case it can't be waived so we're not dealing here with true personal jurisdiction you know no one is arguing that homer did not get a copy it wasn't license to correct any inequity related ocean transportation the commission reasonably declined to give itself such a license here in the petition should be night through no further questions i would see the remainder of my time to intervene  morning if it please the court i'm holly wells cyan the attorney for the intervenor city of homer given my limited time this morning i actually like to start by asking if there's any particular questions that you have for the  seeing that i'm going to try to address some of the issues raised by both auction block and and the government today one of the things that keeps coming up is this personal jurisdiction subject matters diction distinction i think that this is been put to bed fairly well but i just want to be very clear that that's a stinks and is without a difference before the united states federal courts that it is in fact grounded and agency jurisdiction the scope of the act the purpose and intent of the and if you go to the united states court of appeals first circuit case with the puerto rico port authority or you go to the bridgeport port authority case or any other that i could find case in which the federal courts are making a decision they are very careful to stay away from the subject matter personal personal jurisdiction distinction and focus instead on sort of a first part second part third part analysis and i think that 's a very important distinction because what it does is it grounds the court on review and the purpose and intent of the act and when we go to the purpose and intent of the act i think what we have is a nonsensical outcome if you apply a facility are of facility wide analysis in this case and i think that and really and in most cases because when you look at the municipal then  municipal corporation which means it governs i'd large spectrum of behavior and conduct if you don't apply a facility by facility analysis the federal the federal maritime commission ends up having a hand if it so chooses and leaseholds that are twenty miles if they're within the municipal corporation boundaries and owned by the municipality within the us within within this community i know i hesitate to even make the argument because it sounds almost histrionic but it is a reality of the application because handling storing delivering property simply does not give you any restriction that is tied to the water so the restriction has to be placed in the first the first section of the of the statute and of the of that definition marine terminal operator it it has to live there and be housed there for the purpose of the act to be to be instituted and i think there are specific examples of how those leaseholds would be affected and sort of the agree just potential outcome in the briefing but i think another another point to be aware of is why this hasn't come up already why this hasn't just this distinction with they could have played out but the the reason why i think this is arising now is alaska has a lot of very active ports obviously in the fishing industry and otherwise but they do not exercise they do not generally create port authorities so because we don't create port authorities the municipal corporations operate even in our biggest ports in krige anchorage has i believe they have enterprise department but what that means is what happens at the port is being performed and is is being operated managed carried out by this government that also governs the the people in all other areas and so that's that's really important that distinction is important because in puerto rico port authority you did in fact have a port authority and even there the u s court of appeals immediately and sort of almost implicitly applied this facility analysis when it made sense the facility by facility well yes there is a statute and i i don't have the number in front of it there is a statute that requires and i do not believe there is an exemption for municipality that requires non discriminatory conduct so that would apply to us there's even a statute that applies and it would apply to commercial transactions involving fish as opposed to racial disparities in housing or the statute that i'm referring to is actually designed to apply to the conduct surrounding the commercial fishing industry so it is actually now whether or not that there isn't some other exemption orse you know how that applies and whether or not the statue of limitations is in play i not really prepared to discuss that today but i certainly could provide a supplemental brief on that but in addition to that we have the federal constitution and the requirements there because we are in fact a government entity here well i think there's equal protection claims that you know may be something that he might assert now whether or not action by could be successful in this claims of course we would argue that we have behaved in nothing  a you know a legally compliant way but i think that those claims there's nothing to stop him from bringing those claims based upon activities and conduct at our ports or our facilities additionally you have this idea that the antitrust immunity would somehow protect the city i really like that idea and i'm very hesitant to concede that it wouldn't time but there are many acts that fall with under the purview of these antitrust laws and i am not familiar at this stage because it has been unnecessary given the laws of the federal maritime commission of how those and i trust laws affect the city but i certainly know that we make every effort to comply with them we also have a state constitution that is extremely  generally applied in a very conservative way we have pieces municipal cases in the last two years that apply equal protection concepts to taxation and otherwise and find that it's it's stricter than the federal it's federal counterpart and so i'm not sure i can well i haven't seen the arguments i certainly haven't tried to suss them out there i've seen no basis for saying they're not there does that adequately address i think i think it does and then one other thing i really want to point out is i was somewhat alarmed hearing that the there is an affidavit in which there has been a to a the assertion the commentary to service the fish dock there have been several affidavits but i i honestly believe this issue had been conceded and addressed the design in nature of the fish stock and the harbor really in the bottle neck way in which it is laid out makes the makes him impossible is a is a strong word but it makes that very difficult it certainly has not been done for this this harbor to be entered by a deep draft oceangoing vessel which all come and get to carrier would have to be so we have very actively engaged in discovery at one point was claiming that it was a common carrier we then went through thousands and thousands of bills of lading in order to determine that there was not one that showed this connection so before the court puts any weight on this concept that this evidence has been submitted i would request that we just have an opportunity to sharing some time remaining honest i'd like to point out that both the initial decision and the commission decision expressly note that there were only three defenses that were raised the failure to state a claim the statute of limitations and the subject matter jurisdiction just to point out that there isn't anything in the record to state expressly that they raised an affirmative defense the has very little money and they were looking at what is really the most plausible recourse in the american judicial system going to the federal maritime commission to have them take a look at tariffs that were submitted by the city really is the only recourse it's really easy to say go out and file and other lawsuit here but the the sovereign immunity defenses of the city are very strong and we're not going to get a lawsuit and they're going to be able to come in and claim we have antitrust immunity from congress there's a supremacy clause they'll move to dismiss and under state law they will get partial attorneys fees counsel i'm i'm going to come back to your claim that the common carriers are able to use the fish stock i'm looking at a finding of fact number fifty three on page eleven of the l g s decision no common carriers are permitted or able to use the fish stock and the f m c relies on it's little more general in the in the commission decision but it looks like it's relied on that there you you hear seem to have claimed in your opening that you had evidence that contradicted that there is a statement by mr hogan who does business here that that he seen a variety of vessels and used it did you raise this point in live it may be conceded ok it is there i guess the concern that like to leave with you is that the discovery of courage so quickly the issue didn't seem to be critical and the test that we were taking a look at by the federal maritime commission as we were trying to assemble the brief because the briefing schedule so quick it didn't seem to suggest that that was an issue that you take a look at the entire port and really the discovery  was tied to the case law at that time and i would just submit that especially if you take a look at forty six c f r five twenty five in that provision your statement that a marine terminal operators not obligated to file tariffs but if it does file tariffs those shell create a contract between in this case the city of homer and the auction block company and that's a contract really that's before the commission to be interpreted because it's their special expertise that's necessary to determine whether or not the conduct fits within the provisions of the ship redress to be dealing with marine terminal operator interstate carrier but it's still the old guard wasn't it still dealing with a marine terminal operator that isn't gauged with the common carriage at least at all of the other ports in the activities cross ports because icicle is using the fish stock the auction block sells to the common carriers the large cruise ships both to their galleys and then also to some of the individual passengers so what you've got what we're really trying to do is look at how icicle is being treated icicle is at the deepwater dock with their their barge in the summer and there's no dispute that the deepwater dock does service common carriers so you take a look at those cases of prudential winds and then river parishes  others and once you show that there is some common carriage or submit that the case law is established that then the matter is within the subject matter jurisdiction of the federal maritime commission and with that your honor i just believe that there is no other recourse i took a look at the possibility of bringing some type of equal protection clause and yet the equal protection issues have been addressed broad equal protection issues have been addressed by congress and was finding that when they offered the r p no one other than the auction block submitted a response i think there's a reason and in this case your actions are probably won't make it and if they go it's going to have a significant should be treated equally and that the auction block should pay one that icicle should pay one and then the market decides which one of those entities can compete to provide the fish we don't have time to go in the fishing industry but if you take a look at most the commercial you're way over your time you may want to you may want to sum up your honor if i could but i believe that the tariffs really define the jurisdiction of the federal maritime commission those are the  if you take a look at all of the other decisions that we took a look at they're all consistent this decision by the commission is the one consistent decision and they make it on the basis of a number of policy arguments including regulation and whatnot those are really the type of issues you the truth be addressed to congress and congress can decide if it wants to narrow the focus of the federal maritime commission in the shipping and so we would encourage you to take a look at the many evidentiary issues we raised and developed