PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

______________

No. 19

- 1775

______________

OWNER OPERATOR INDEPENDENT DRIVERS

ASSOCIATION, INC.; NATIONAL MOTORIST ASSOCIATION; MARION L. SPRAY; B.L. REEVER TRANSPORT, INC.; FLAT ROCK TRANSPORTATION, LLC; MILLIGAN TRUCKING, INC.*; FRANK SCAVO; LAURENCE G. TARR, Appellants

v.

PENNSYLVANIA TURNPIKE COMMISSION; LESLIE S. RICHARDS, in her individual capacity and her official capacities as Chair of the PTC and Secretary of the Department of Transportation; WILLIAM K. LIEBERMAN,

in his individual capacity and his official capacity as Vice

Chair of the PTC; BARRY T. DREW, in his individual capacity and his official c apacity as Secretary

- Treasurer of

the PTC; PASQUALE T. DEON, SR., in his individual capacity and his official capacity as Commissioner of the PTC; JOHN N. WOZNIAK, in his individual capacity and his official capacity as Commissioner of the PTC; MARK P.

COM PTON, in his individual capacity and his official capacity as Chief Executive Officer of the PTC; CRAIG R. SHUEY, in his individual capacity and his official capacity as2 Chief Operating Officer of the PTC; TOM WOLF, Governor of the Commonwealth of Pennsylv ania, in his individual capacity and his official capacity as Governor

*(Amended as per the Clerk’s 04/25/19 Order)

______________
Appeal from the United States District Court for the Middle District of Pennsylvania ( D.C. No. 1

- 18

- cv

- 00608) District Judge: Hon. Yvette Kane

______________
Argued July 9 , 2019

______________

Before: SHWARTZ, KRAUSE

, and FUENTES

, Circuit Judges

.

( Filed: August 13, 2019)

Melissa A. Chapaska
Kevin J. McKeon
Dennis Whitaker
Hawke McKeon & Sniscak
100 North Tenth Street
P.O. Box 1778 Harrisburg, PA 17101

Paul D. Cullen, Jr. Paul D. Cullen, Sr. [ARGUED]
Kathleen B. Havener
The Cullen Law Firm3 1101 30th Street, N.W.
Suite 300 Washington, DC 20007

Counsel for Appellants Owner Operator Independent Drivers Association, Inc., National Motorist Association, Marion L. Spray, B.L. Reever Transport Inc., Flat Rock Transportation LLC, Milligan Trucking Inc., Frank Scavo, and Laurence G. Tarr

Robert L. Byer [ARGUED]
Leah A. Mintz
Lawrence H. Pockers Brian J. Slipakoff
Duane Morris
30 South 17th Street
United Plaza Philadelphia, PA 19103

Counsel for Appellees Pennsylvania Turnpike Commission; Leslie S. Richards, in her individual capacity and her official ca pacities as Chair of the PTC and Secretary of the Department of Transportation; William K. Lieberman, in his individual capacity and his official capacity as Vice Chair of the PTC; Barry Drew, in his individual capacity and his official capacity as Secreta ry

- Treasurer of the PTC; Pasquale T. Deon, Sr., in his individual capacity and his official capacity as Commissioner of the PTC; John N. Wozniak, in his individual capacity and his official capacity4 as Commissioner of the PTC; Mark P. Compton, in his indiv idual capacity and his official capacity as Chief Executive Officer of the PTC; and Craig R. Shuey, in his individual capacity and his official capacity as Chief Operating Officer of the PTC

Arleigh P. Helfer, III
Bruce P. Merenstein [ARGUED]
Schnader Ha rrison Segal & Lewis
1600 Market Street
Suite 3600 Philadelphia, PA 19103

Counsel for Appellees Leslie S. Richards, in her individual capacity and her official capacities as Chair of the PTC and Secretary of the Department of Transportation

, and Tom Wolf, Governor of the Commonwealth of Pennsylvania, in his individual capacity and his official capacity as Governor

Alex M. Lacey
Robert M. Linn Robyn A. Shelton Cohen & Grigsby 625 Liberty Avenue
5th Floor Pittsburgh, PA 15222

Counsel for Appellee William K. Lieberman, in his individual capacity and his official capacity as Vice Chair of the PTC5 Matthew H. Haverstick
Shohin H. Vance
Kleinbard Three Logan Square 1717 Arch Street, 5th Floor Philadelphia, PA 19103

Counsel for Appellee Craig R. Shuey, in his individual capacity and his official capacity as Chief Operating Officer of the PTC

Thomas M. Fisher Office of Attorney General of Indiana 302 West Washington Street Indianapolis, IN 46204

Counsel for Amicus Curiae the State of Indiana

Miguel A. Estrada
Gibson Dunn & Crutcher 1050 Connecticut Avenue, N.W. Washington, DC 20036

Counsel for Amicus Curiae ITR Concession Company LLC

______________

OPINION

______________

SHWARTZ, Circuit Judge

.6 Plaintiffs are individuals and members of groups who pay tolls to travel on the Pennsylvania Turnpike. 1 They allege
that Pennsylvania state entities and officials (“Defendants”) have violated the dormant Commerce Clause and their right to
travel

. 2 Specifically, Plaintiffs assert that Defendants have set exorbitantly high tolls for use of the Pennsylvania Turnpike
and that the amount s collected exceed the costs to operate the
Turn pike. They contend the extra funds are being used for projects that disproportionately benefit local interests and that the high tolls deter non

- Pennsylvanians from using the Turnpike.

Because Congress has permitted state authorities, such
as Defendants , to use the tolls for non

- Turnpike purposes, the
collection and use of the tolls do not implicate the Commerce
Clause . Moreover, because Plaintiffs have not alleged that their right to travel to

, from , and within Pennsylvania has been
deterred , the ir right to travel has not been infringed. Therefore,

1 Plaintiffs are Owner Operator Independent Drivers Association, Inc.; National Motorist Association; Marion L. Spray; B.L. Reever Transport, Inc.; Flat Rock Transportation, LLC; Milligan Trucking, Inc.; Frank Scavo; and Laurence G.
Tarr

. 2 Defendants are the Pennsylvania Turnpike Commission (“PTC”), William K. Lieberman, Vice Chair o f the PTC; Barry Drew, Secretary

- Treasurer of the PTC; Pasquale T. Deon, Sr., and John N. Wozniak, Commissioners of the PTC; Mark P. Compton, Chief Executive Officer of the PTC; Craig R. Shuey, Chief Operating Officer of the PTC; Pennsylvania Governor Tom Wolf ; and Leslie S. Richards,
who is both the Chair of the PTC and Secretary of the Pennsylvania Department of Transportation.7 we will affirm the District Court ’s order dismiss ing the complaint.

I

A

The Pennsylvania Turnpike is p art of a 552

- mile highway syste m that crosses Pennsylvania from New Jersey to
Ohio. T he P ennsylvania Turnpike Commission (“PTC”) sets and collects Turnpike tolls

.

In 2007, the Pennsylvania legislature enacted Act 44, which, among other things, permitted the PTC to increase tolls
and r equired the P TC to make annual payments for a fifty

- year period to the P ennsylvania Department of Transportation (“PennDOT”) Trust Fund. See 75 Pa. C ons . S tat

. § 8915.3. In 2013, Act 89 amended Act 44

, as amended “Act 44/89

. ” Act
89 co ntinu ed to permit toll increases but lowered the annual payments to the PennDOT Trust Fund.

A f ter Act 44 went into effect, the PTC announced a 25%
toll increase and from 2009 t hrough 2016, tolls were increased annually by more than 10% for cash customers and 5.75% for customers using an electronic toll transmitter known as an EZ

Pass

. Plaintiffs assert that since the enactment o f Act 44, tolls
have increased more than 2 00% and that the current cost for
the heaviest vehicles to cross the 359

- mile portion of the Pennsylvania Turnpike that spans from New Jersey to Ohio
exceeds $1800. Pennsylvania’s Auditor General found that
PTC’s annual “costly toll increases place an undue burden ” on Pennsylvanians , opined that “the average turnpike traveler will be deterred by the increased cost and seek alternative toll

- free8 routes

, ” App. 88 (emphasis omitted) (quoting September 2016
Performance Audit of the PTC ) , and recommended that the PTC seek legislative relief from its Act 44/89 payment obligations

.

Tolls are PTC’s largest revenue source and amount to 166

- 215% of the costs to maintain and operate the Turnpike

. Simply put , the amount of the tolls collected exceed s the
amount it costs to run the Turnpike. The excess tolls are deposited into the PennDOT Trust Fund, which are, in turn, transferred to four different programs: (1) operating programs
under 74 Pa. C ons

. S tat

. § 1513

, which include asset maintenance costs and expenses for public passenger transport; (2) the multimodal transportation fund under 74 Pa. C ons

. S tat

. § 210 4

, which covers aviation, freight and passenger rail, and port and waterway projects; (3) the asset improvement program under 74 Pa. C ons

. S tat

. § 1514 for financial assistance for the improvemen t, replacement, or expansion of capital projects; and (4) programs of statewide significance
under 74 Pa. C ons . S tat

. § 1516

, which include disability programs, rai l and bus services, community transportation,
Welfare

- to

- Work programs, and research project s. Act 44/89 is designed to generate $450 m illion annually for PennDOT
from 2011 through 2022. 3 More than n inety percent of Act 44/89 payments

— ap proximately $425 million annually

— benefit “non

- T urnpike road and bridge projects and transit operations.” Ap p. 78. Plaintiffs allege that many of these “programs have no functional relationship to the Pennsylvania Turnpike

, ” including, for instance, the “[c]onstruction of an

3 Act 44/89 payments will generate $50 million annually for PennDOT from 2023 through 2057.9 underpass” and a “[s]idewalk installation.” 4 App. 81

- 82

. Plaintiffs concede that a federal statute, the Intermodal Surface

4 Plaintiffs allege that Act 44/89 fu nds have been used for various programs across the state including:

a. Development of Three Crossings, a mixed

- use development consisting of residential units, office space, and a transportation facility with vehicle and bicycle parking, bicycle repair,
electric

- vehicle charging stations, kayak storage, and transit station in Pittsburgh (Allegheny County);

b. Construction of an underpass under U.S. 22, connecting the Lower Trail with Canoe Creek State Park (Blair County);

c. Rehabilitation of n ine stone

- arch bridges along the SEPTA regional railway line (Regional project);

d. Replacement of the roof at Collier Bus Garage (Allegheny County);

e. Sidewalk installation along North Main Street in Yardley (Bucks County);

f. Installation of appr oximately 1,800 feet of
ADA

- compliant sidewalk along the south side of Union Deposit Road between Shield Street and Powers Avenue at the Union Square Shopping Center in Susquehanna (Dauphin County);10 g. Extension of internal road, including final design, survey, permit modifications, bid documents, construction, storm water, street lights, project administration, legal expenses, audit expenses, and contingencies in Windy Ridge Business and Technology Park (Indiana County);

h. Improvements to roadways in 12,000 acres of parks, including widening shoulders, paving, signage installation, and bicycle marking in the Allegheny County Parks;

i. Addition of eight curb ramps, new asphalt, four decorative crosswalks and a surface sign at
an intersection in Latrob e (Westmoreland County);

j. Phase II Construction of Erie Metropolitan Transportation Authority’s Maintenance and Paratransit Bus Storage Facility (Erie County);

k. Improvements to the Erie International Airport terminal building (Erie County);

l. Creation of a multi

- use trail and installing associated signage from the West End neighborhood linking existing bike routes to a multiuse path that connects to The Pennsylvania State University (Centre County);11 Transportation Efficiency Act of 1991 (“ISTEA ”)

, Pub. L. No.
102

- 240, 105 Stat. 1914 (codified as amended in scattered titles), authorizes these types of projects. Nonetheless, t hey
assert that the toll costs bur den interstate commerce and “discourag [e] both business and private travelers from using the Turnpike

. ” App. 99

.

m. Creation of a pedestrian island at the
in tersection of Park Avenue and McKee Street in State College to provide a safer crossing for pedestrians and cyclists and accommodate the accessibility needs of vision

- impaired residents (Centre County);

n. Construction of a new two

- way industrial

access r oad, realigning a portion of the Nittany & Bald Eagle Railroad Main Line to accommodate the access road, and constructing new sidings and operating tracks for First Quality Tissue’s two existing facilities and a proposed new facility (Clinton County);

o. Construction of an 85

- car unit train loop track in the Keystone Regional Industrial Park to connect with an existing Norfolk Southern main
line track and serve a Deerfield Farms Service grain elevator facility in Greenwood (Crawford County).

App. 81

- 84.12 B

Plaintiffs brought suit on behalf of a putative class alleging violations of the dormant Commerce Clause and their

r ight to t ravel. 5 Defendants moved to dismis s and Plaintiffs moved for partial summary judgment on the issue of liability.

The District Court granted Defendants’ motions to
dismiss 6 and denied Plaintiffs ’ motion for summary judgment. See generally Owner Operator Indep. Drivers Ass’n v. Pa. T pk.
Comm’n , No. 1:18

- cv

- 00608,

-- F. Supp. 3d

-- , 2019 WL

5 The Complaint seeks (1) a declaratory judgment that
PTC’s tolls and the provisions of Act 44/89 that direct the PTC to make payments to PennDOT violate the dormant Commerce Clause and the constitutional right to travel, (2) a preliminary and permanent injunction enjoining both the excess tolls and payments under Act 44/89, and (3) a judgment against Defendants ordering the refund of excess toll payments.

6 Certain Defendants also moved in the alternative for

summary judgment. Although the District Court outlined the legal standards for both Federal Rules of Civil Procedure 12(b)(6) and 56, Owner Operator Indep. Drivers Ass’n v. Pa.
T pk. Comm’n , No. 1:18

- cv

- 00608,

-- F. Supp. 3d

-- , 2019 WL 1493182, at *8

- 9 (M.D. Pa. Apr. 4, 2019), and

, at the outset of its dormant Commerce Clause analysis

, referenced “undisputed ” facts, id. at *18 , it applied the Rule 12(b)(6) standard, concluding that Plaintiffs’ “factual allegations do not support a claim for violations of the dorma nt Commerce Clause or the constitutional right to travel,” and grant ing “the
PTC Defendants’ and Commonwealth Defendants’ motions to
dismiss

, ” i d. at *24. We therefore review the District Court’s opinion granting a motion to dismiss. See infra note 7

.13 1493182 (M.D. Pa. Apr. 4, 2019). The Court applied the test
set forth in Pike v. Bruce Church, Inc. , 397 U.S. 137 (1970),
and held that

, because the alleged burdens from the tolls are equally imposed on both in

- and out

- of

- state drivers, they are general burdens on commerce that do not violate the dormant Commerce Clause, Owner Operator

, 2019 WL 1493182 , at *22. The Court also held that Plaintiffs failed to state a c laim that their right to interstate travel was infringed because they

a ssert ed o nly that the toll structure deterred Turnpike travel

. I d. at *2 4

.

II 7

A

1

The Commerce Clause confers upon Congress the

7 The District Court had jurisdiction under 28 U.S.C. § § 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.
Our review of the District Court’s dismissal of
Plaintiffs’ c omplaint is plenary. Burtch v. Milberg Factors,
Inc. , 662 F.3d 212, 220 (3d Cir. 2011). To withstand a motion to dismiss, a complain t must allege a claim “that is plausible on its face” when accepting all the factual allegations as true and drawing every reasonable inference in favor of the nonmoving party. Connelly v. Lane Constr. Corp. , 809 F.3d 780, 786 & n.2 (3d Cir. 2016) (quotin g Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009)). In reviewing a complaint, we disregard conclusory assertions and bare recitations of the elements. Id.
at 786 n.2.14 power “[t]o regulate Commerce . . . among the several States.”
U.S. Const. a rt. I

, § 8, cl. 3. By negative implication, Congress ’s authority to regulate commerce prohibits the s tates from enacting “ laws that unduly restrict interstate commerce.” Tenn. Wine & Spirits Retailers Ass’n v. Thomas

, 139 S. Ct. 2449, 2459 (2019). This “dormant Commerce Clause” bars

s tates from discriminat ing against or unduly burden ing interstate commerce, for instance by enacting protectionist regulations that give in

- state businesses an advantage over out

of

- state businesses

, see , e.g. , Pike , 397 U.S. at 144

- 45, or by

assess ing fees that “threaten the free movement of commerce by placing a financial barrier around the [s]tate,” Am. Trucking
A ss’ns , Inc. v. Scheiner , 483 U.S. 266, 284 (1987).

Congress, however, may authorize a state to take
actions that burden interstate commerce

. S. Dakota v. Wayfair,
Inc. , 138 S. Ct. 2080, 2089 (2018). “[W]hen Congress exercises its power to regulate commerce by enacting legislation, the legislation controls

. ” Id. Thus, where Congress has spoken and s tate or local government s take actions that are

“ specifically authorized by Congress ,” those actions are “ not subject to the Commerce Clause even if [ th ey ] interfere [] with
interstate commerce.” 8 White v. Mass. Council of Constr. Emp ’r s, Inc. , 460 U.S. 204, 213 (1983) (citation omitted)

. In
short

, as applied her e , i f Congress authorizes an action, such as using tolls for non

- toll road purposes, then “no dormant Commerce Clause issue is presented .” Id.

8 Absent such legislation, “Congress has left it to the
courts to formulate the rules to preserve the free flow of
interstate commerce.” Wayfair , 138 S. Ct. at 2 0 90 (internal quotation marks and citations omitted).15 To determine whether Congress has authorized such action and thereby “remove d [it] from the reach of the dormant
C ommerce C lause,” we must consider whether its intent is
“unm istakably clear

. ” S.

- Cent

. Timber Dev., Inc. v.
Wunnicke , 467 U.S. 82, 91 (1984) ; see N e. Bancorp, Inc. v.
Bd. of Gov ernor s of Fed. Res erve Sys. , 472 U.S. 159, 174 (1985) (“When Congress so chooses, state actions which it plainly authorizes are invulnerable to constitutional attack under the Commerce Clause.”). While “congressional intent and policy to insulate state legislation from Commerce Cla use attack [must be] ‘ expressly stated, ’ ” “[t]here is no talismanic significance to the phrase ‘expressly stated. ’ ” S.

- Cent

. Timber

, 467 U.S. at 90

- 91. “ ‘ Expressly stated ’ . . . merely states one way of meeting the requirement that for a state regulation to be removed from the reach of the dormant Commerce Clause, congressional intent must be unmistakably clear.” Id. at 91. That is, Congress “need not expressly state that it is authorizing a state to engage in activity that would otherwise violate the [ d]ormant Commerce Clause.” Am. Trucking Ass’ns , Inc. v. N.Y. State Thruway Auth. , 886 F.3d 238, 24 5 (2d Cir. 2018). Rather, Congress “need only clearly allow the state to engage in such activity.” Id.

2

Defendants contend that Congress, through ISTEA

, specifically authorized states to enact legislation that allocates highway tolls for purposes unrelated to the toll road

. If a state’s actions fall within the scope of Congress’s authorization, then
the dormant C ommerce C lause does not apply

. W e therefore16 begin by analyzing whether ISTEA authorizes Defendants’
conduct. 9

Under ISTEA, “Congress sought to foster a National
Intermodal Tr ansportation System, consisting of all form s of transportation in a unified, interconnected manner.” Am. Trucking , 886 F.3d at 242 (internal quotation marks omitted). Before ISTEA, “Congress enacted the Surface Transportation Assistance Act ( ‘ STAA ’ ),” wh ich provided “federal financial support” for toll road s. Id. at 241. STAA required that for state public authorities maintaining highways “to receive federal financial aid,” they “had to discontinue levying tolls once they
had collected sufficient revenu es to retire outstanding bonds” that funded the highways. Id. “If those authorities failed to make a toll road free once they had collected sufficient tolls to retire those bonds, STAA required them to repay the federal government for the financing it ha d provided them.” Id. at 241

- 42. ISTEA, however, “freed states from their obligation under the STAA to repay the federal government should they continue to collect tolls after retiring outstanding debts, and granted them greater flexibility to operate to ll facilities and use toll revenues for a variety of transportation projects.” Id. at

9 Principles of constitutional avoidance counsel us to first address whether a statutory ground resolves the case, and
thereb y renders unnecessary the need to answer the “constitutional question” here of whether the Defendants’ toll collection and allocation place an undue burden on interstate
commerce in violation of the dormant Commerce Clause.
Slack v. McDaniel , 529 U.S. 473 , 485 (2000) (quoting Ashwander v. Tenn. Valley Auth. , 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).17 242. To that end, ISTEA “broadened the list of purposes for
which states could use federal funds.” Id.

ISTEA regulates the use of “toll revenues” by “[a] public aut hority

, ” such as the PTC, 10 and enumerates the categories for which toll revenues may be used. 23 U.S.C. § 129(a)(3)(A). ISTEA provides that the public authority

“ shall ensure that all toll revenues received from operation of the toll facility are used only for ” :

• debt service;

• “a reasonable return on investment of any private person financing the project”;

• “any costs necessary” to improve, operate, and maintain the toll facility; and

• payments to private parties (where applicable) “if the toll facility is subject to a public

- private partnership agreement.”

Id. § 129(a)(3)(A)(i)

- (iv)

. In addition, i f “the public authority certifies annually that the tolled facility is being adequately maintained,” ISTEA permits the public authority to use toll revenues for “any other purpose for which Federal funds may be obligated by a State under [ t itle 23 ] .” Id. § 129(a)(3)(A)(v). In short, ISTEA allows a public authority to use toll revenues
for non

- toll road projec ts.

10 A “public authority” includes a state “instrumentality with authority to finance, build, operate or maintain toll . . . facilities.” 23 U.S.C. § 101(a)(21).18 Pursuant to t itle 23, federal funds “m ay be obligated”
for several broad categories of items

, id. , and at least two statutory subsections authorize expenditures unrelated to the toll road itself. For example, ISTEA authorizes s tate s to construct, among other things, “transit capital projects eligible for assistance under chapter 53 of title 49

. ” Id. § 133(b)(1)(C). Subject to certain conditions, capital projects may include “walkways,” “pedestrian and bicycle access to [] public

tr ansportation facilit[ies] ,” and the “construction, renovation, and improvement of intercity bus and intercity rail stations and
terminals.” 49 U.S.C. § 5302(3)(G)(v)(VI)

- (VIII).

Title 23 also authorizes s tate s to build “[a]ny type of project eligible u nder this section as in effect on the day before the date of enactment of the [Fixing America’s Surface Transportation] Act, including projects described under [§] 101(a)(29) as in effect on such day.” 23 U.S.C. § 133(b)(15). Before Congress enacted the Fixing America’s Surface Transportation Act in 2015, § 101(a)(29) listed various projects under the phrase “ [ t ] ransportation alternatives ,” including the

[c]onstruction . . . of on

- road and off

- road trail facilities for pedestrians, bicyclists, and other nonmotorized forms of transportation, including sidewalks, bicycle infrastructure, pedestrian and bicycle signals . . . to achieve compliance with the Americans with Disabilities Act of 1990 (42 U.S.C. [§] 12101 et seq.).

23 U.S.C. § 101(a)(29)(A) (201 2)

. “T ransportation
alternatives” also include the “[c]onstruction of turnouts, overlooks, and viewing areas.” Id. § 101(a)(29)(D) (2012)

.19 Through ISTEA, Congress expressed its “unmistakably
clear” intent that the Defendants could use toll revenues for

non

- toll road projects

. S.

- Cent. Timber , 467 U.S. at 91. Congress’s authorization that toll revenues be used for purposes other than maintai ning and operating the toll road, and servicing its debt, necessarily envisions that a public authority can collect funds that exceed a toll road’s costs before it can spend them

. See 23 U.S.C. § 129(a)(3)(A)(v). Thus, ISTEA contemplated that tolls excee ding the amount needed
to fund a toll road would be collected and spent on non

- toll road projects.

Plaintiffs argue that Congress could not have contemplated that a state would increase its toll s by over 2 00%
to fund non

- toll road projects. Plaintiffs ignore the text of ISTEA. Nowhere in the statute, including § 129(a)(3)(A)(v), did Congress cap the amount of toll money a state could raise.
See Am. Trucking , 886 F.3d at 246 (holding that “a plain reading of [ISTEA] reveals that Congress meant to permi t [a public authority] to continue collecting tolls of whatever

amount without having to repay federal funds

— something that it was previously barred from doing once it satisfied its debt obligations” (emphasis omitted ) )

. As we already noted, the
fact th at Congress allowed s tates to use toll money on non

- toll road projects presupposes that funds exceeding the amount
needed for the toll road would be collected.

Nor is there merit to Plaintiffs ’ argu ment that ISTEA speaks only to “use” of excess toll revenue, not to “collection” or “generation” of toll revenue. A s a matter of common sense, however, Congress’s authorization of “use” assumes there is toll revenue collected in the first place to be used, and contrary to
Plain tiffs’ suggestion that Congress was speaking only to “nickels and dimes” left over each year due to fluctuating Turnpike costs,20 Oral Arg. Tr. at 18, 77, Congress identified a host of big

- ticket items that excess tolls could be spent to construct, including “highways, bridges, tunnels, . . . ferry boats[,] and [ferry] terminal facilities.” 23 U.S.C. § 133(b)(1). T his further shows that I STEA did not limit the amount of funds the PTC could collect and spend on

non

- Turnpike projects.

Plaintiffs concede that the non

- Turnpike related projects listed in their complaint for which toll funds were used
fall within I ST EA’s scope, but contend that Defendants failed to satisfy one of ISTEA’s condition s for using the toll funds for

non

- toll road purposes. As noted ea rlier, ISTEA requires that the public authority “ certif[ y ] annually that the toll facility is being adequately maintained” before any excess funds may be
used for non

- toll road projects. 23 U.S.C. § 129(a)(3) (A) (v).
Defendants conceded before the Distric t Court that they did not submit the required annual certifications. Their failure to comply with this condition, however, does not diminish the fact that Congress has legislated in the area of interstate
commerce at issue and blessed the use of tolls for non

- toll road

purposes. 11 In other words, the presence or absence of the

11 Moreover, Plaintiffs’ attempt to preclude Defendants from relying on § 129(a)(3)(A)(v)’s spending authority because they did not fulfill the statute’s certification requirements also fails because the statute does not provide a private right of action. S ee Endsley v. City of Chicago , 230 F.3d 276, 280 (7th Cir. 2000). Not only is there no private right of action, but Congress specified its own remedy here for the failure to abide by this condition. That remedy is vested in the Secretary of Transportatio n, who “may require the public authority to discontinue collecting tolls” if she “concludes that a public authority has not complied with the limitations on the use of revenues described in [§ 129(a)(3)(A)].” 23 U.S.C.21 annual certification does not otherwise affect Congress’s “unambiguous intent to authorize [ a state authority, such as the
PTC

, ] to allocate excess toll funds” to non

- toll road projects. Am. Trucking , 886 F.3d at 247.

In sum, “[t]he text is clear”: Congress has authorized the

s tates, including the Commonwealth of Pennsylvania, to generate and use such t olls to fund the type of projects listed in Plaintiffs’ complaint. 12 Id. As a result, the collection and use of the tolls to fund the challenged expenditures do es not violate the dormant Commerce Clause, and the District Court properly
dismissed Plaintiffs ’ dormant Commerce Clause claim. 13

§ 129(a)(3)(C). As it is Congress’s prerogative to authorize the use of funds at issue and it has done so, we need not adjudicate
the consequence for the failure to certify.

12 Because we hold that Congress has authorized Defendants to engage in the challenged activity, we need not
decide wh ether Pike , 397 U.S. 137, or Evansville

- Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc. , 405 U.S. 707 (1972), or some other test applies to a dormant Commerce Clause challenge to a toll.

13 Although the District Court declined to decide whether “Congress has specifically authorized the expenditure of toll revenues contemplated by Act 44/89,” Owner Operator

, 2019 WL 1493182, at *22 n.23 , we may affirm its order dismissing Plaintiffs’ complain t “on any ground supported by the record,” Tourscher v. McCullough , 184 F.3d 236, 240 (3d Cir. 1999).22 B

Plaintiffs ’ claim that the toll s violate the ir right to travel
also fails

. “The constitutional right to travel from one State to another, and necessarily to use the highways and other instrumentalities of interstate commerce in doing so, occupies a position fundament al to the concept of our Federal Union.”
United States v. Guest , 383 U.S. 745, 757 (1966). We have
observed that t he right to travel includes “the right of a citizen
of one State to enter and to leave another State

, ” Connelly v. Steel Valley Sch. Dist. , 706 F.3d 209, 213 (3d Cir. 2013), as amended (May 10, 2013) (quoting Saenz v. Roe

, 526 U.S. 489, 500 (1999))

, a s well as a right to intrastate travel, see Lutz v. City of York , 899 F.2d 255, 268 (3d Cir. 1990), though the
exact “contours” of that ri ght remain elusive, see United States
v. Baroni , 909 F.3d 550, 588 (3d Cir. 2018), cert. granted Kelly
v. United States , No. 18

- 1059, 2019 WL 588845 (U.S. June 28, 2019).

To determine whether a state law “sufficiently impinges upon the right to travel or migrate to trigger strict scrutiny, [we look] to see whether the challenged law’s [1] ‘ primary objective’ is to impede interstate travel; [2] whether it ‘penalize[s] the exercise of that right;’ or [3] whether it ‘actually deters such travel.’” Maldonado v. Houstoun , 157 F.3d 179, 186 (3d Cir. 1998) ( fourth alteration in original) (quoting Att’y Gen. of N.Y. v. Soto

- Lopez

, 476 U.S. 898, 903 (1986) (plurality opinion)).

Plaintiffs do not a ssert that the toll penalizes or impedes
travel. Rather, Plaintiffs allege that “the average turnpike traveler will be deterred by the increased cost and seek
alternative toll

- free routes [,] ” App. 88 ( quotation marks and23 citation omitted), and that the tolls “ discourag[e] both business and private travelers from using the Turnpike

, ” App. 99. Thus,
we must decide whether Plaintiffs have stated a claim that the
tolls “actually deter [] ” interstate or intrastate travel

. Soto

Lopez

, 476 U.S. at. 903

.

“ [B] urdens on a single mode of transportation do not implicate the right to interstate travel

. ” 14 Miller v. Reed , 176 F.3d 1202, 1205 (9th Cir. 1999)

. Moreover, “ [b] urdens placed on travel generally, such as gasoline taxes, or minor burdens impacting intersta te travel, such as toll roads, do not constitute a violation of” the right to travel. Id

. Put differently, “ [ m ] inor
restrictions on travel

, ” including delays and costs, “simply do not amount to the denial of a fundamental right that can be upheld only if the Government has a compelling justification.”
Cramer v. Skinner , 931 F.2d 1020, 1031 (5th Cir. 1991); see also Lutz , 899 F.2d at 269 (“[T]he right to travel cannot conceivably imply the right to travel whenever, wherever and however one pleases

— even on roads specifically designed for public travel.”). “ A law does not actually deter travel merely because it makes it somewhat less attractive for a person to
travel interstate

, ” Pollack v. Duff , 793 F.3d 34, 46 (D.C. Cir. 2015) (internal quotation marks omitted)

, or it is not “ the most
convenient form of travel

, ” Town of Southold v. Town of E. Hampton , 477 F.3d 38, 54 (2d Cir. 2007) (internal quotation marks omitted) ; see Kansas v. United States , 16 F.3d 436, 442 (D.C. Cir. 1994) (holding that law channeling interstate air

14 States may not impose burdens on all modes of
interstate travel

. See Crandall v. Nevada

, 73 U.S. 35, 3 9

- 40, 46 (1867) (holding unconstitutional a state tax imposed on all persons exiting the state or passing through its borders).24 travel through new airport requiring a longer drive had at most “negligible” or “trivial” effect on right to travel ).
Because Plaintiffs allege only that the increased tolls
have caused and will continue to cause T urnpike users to
switch to non

- toll roads in the future, 15 and not that interstate
or intrastate travel has been or will be deterred, 16 they have not stated a claim that their right to travel has been infringed.
There fore

, the District Court properly dismissed Plaintiffs ’ right to travel claim

.

II I

For the foregoing reasons, we will affirm.

15 In Wallach v. Brezenoff

, we applied Evansville to evaluate plaintiffs’ assertion that an increase in tolls on all of the bridg es and tunnels from New Jersey to New York City violated their right to travel. 930 F.2d 1070, 1072 (3d Cir. 1991). The Evans ville Court observed that “facilit[ies] provided at public expense [such as highways] aid[] rather than hinder[] the right to tra vel,” and therefore requiring users to “pay a reasonable fee” is constitutional. 405 U.S. at 714. We need not engage in such analysis or determine, as Plaintiffs urge us to do, whether Evansville supplies the exclusive test of constitutionality for certa in right to travel claims b ecause P laintiffs here a cknowledge that there are non

- toll routes to
travel in and out of Pennsylvania

. 16 Plaintiffs seek to rely on Defendant Wolf’s statements on the radio that the tolls deter travel on the Turnpike

, but those statements are outside of the pleadings and thus are irrelevant to whether the complaint states a claim.