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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

9th Circuit Court - Manchester District Division

No. 2013-796

THE STATE OF NEW HAMPSHIRE

v.

WAYNE A. BICKFORD & a.

Argued: October 9, 2014

Opinion Issued: May 19, 2015

Joseph A. Foster, attorney general (Lisa L. Wolford, assistant attorney 

general, on the brief and orally), for the State.

Brennan, Caron, Lenehan & Iacopino, of Manchester, (Michael J. 

Iacopino and Jenna M. Bergeron on the brief, and Mr. Iacopino orally), for the 

defendants.

HICKS, J. The defendants, Gerald Mandelbaum, Christopher Lajoie, 

Nicholas Meuse, Michael Garrity, and Wayne Bickford, were charged with 

operating a taxicab business without a license from the City of Manchester

(City). The Circuit Court (Michael, J.) granted the defendants’ motion to 

dismiss on federal preemption grounds. See 49 U.S.C. §§ 14501(a), (d) (2012). 

The State appeals, arguing that the local ordinances are not preempted by 
2

federal law and that the circuit court has jurisdiction over the charges. We 

reverse and remand.

The following facts are supported by the record or undisputed by the 

parties. Mandelbaum owns Amoskeag Airport Service (AAS), a sole 

proprietorship in Manchester, and Amoskeag Black Car (ABC), a registered 

trade name for a subdivision of AAS. Mandelbaum operates these businesses

pursuant to a motor carrier permit issued by the United States Department of 

Transportation’s Federal Motor Carrier Safety Administration (FMCSA) that, he 

asserts, grants him the authority “to engage in the transportation as a common 

carrier of passengers, in charter and special operations, by motor vehicle in 

interstate or foreign commerce.” Mandelbaum does not, however, hold a City 

license to operate a taxicab service.

Bickford, Garrity, Lajoie, and Meuse are drivers for AAS and ABC. In 

March and April of 2013, they were each cited by the Manchester Police for 

operating a taxicab service in violation of the City’s business and taxicab 

licensing ordinances (City Ordinances). See Manchester, N.H., Rev. 

Ordinances title XI, ch. 110, § 110.02; id. title XI, ch. 118, §§ 118.01 et seq.

(2014). On two occasions, Mandelbaum was also issued a citation for the same 

reasons.

On July 8, 2013, the defendants moved to dismiss the citations, arguing

that: (1) federal law preempts the City Ordinances; (2) Mandelbaum’s FMCSA 

certification divests the City of jurisdiction to regulate AAS or ABC; and (3) 

neither AAS nor ABC constitutes a taxicab service as defined by statute or 

ordinance. The State objected and, after a hearing, the trial court granted the 

defendants’ motion to dismiss “without prejudice to the State’s right to petition 

the FMCSA for further review of the defendants’ activities.” The State filed a 

motion to reconsider, which was denied. This appeal followed.

Although the parties raise numerous issues, we need only address the 

following: (1) whether federal law preempts the City Ordinances; and (2) 

whether federal law requires the State to first bring its complaints before the 

FMCSA. Because resolution of these issues requires both statutory 

interpretation and a determination of federal preemption, we review the trial 

court’s decision de novo. Appeal of Bretton Woods Tel. Co., 164 N.H. 379, 386-

87 (2012); State v. Merriam, 150 N.H. 548, 549 (2004). When interpreting a 

statute, we first look to the language of the statute itself, and, if possible, 

construe that language according to its plain and ordinary meaning. Pelkey v. 

Dan’s City Used Cars, 163 N.H. 483, 487 (2012), aff’d, 133 S. Ct. 1769 (2013). 

We do not read words or phrases in isolation, but in the context of the entire 

statutory scheme. Id. When construing federal statutes, we construe them in 

accordance with federal policy and precedent. Id.
3

We first consider whether federal law preempts the City Ordinances. 

State and local laws are preempted when: “(1) Congress expresses an intent to 

displace state law; (2) Congress implicitly supplants state law by granting 

exclusive regulatory power in a particular field to the federal government; or (3) 

state and federal law actually conflict.” Disabilities Rights Center, Inc. v. 

Comm’r, N.H. Dept. of Corrections, 143 N.H. 674, 676 (1999). The federal 

preemption doctrine is based upon the Supremacy Clause of the United States 

Constitution. U.S. CONST. art. VI, cl. 2; Arizona v. United States, 132 S. Ct. 

2492, 2500 (2012); Appeal of Sinclair Machine Prod’s, Inc., 126 N.H. 822, 826 

(1985). “Consideration of issues arising under the Supremacy Clause starts 

with the assumption that the historic police powers of the States are not to be 

superseded by Federal Act unless that is the clear and manifest purpose of 

Congress.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) 

(quotation, brackets, and ellipsis omitted). “Accordingly, the purpose of 

Congress is the ultimate touchstone of pre-emption analysis.” Id. (quotation 

and brackets omitted).

The defendants do not argue that Congress expressly displaced state law 

by enacting 49 U.S.C. §§ 14501(a) and 14501(d). Instead, they argue that 

enforcement of the City Ordinances against them brings state and federal law 

into conflict, and that when such conflict occurs state law must yield. 

Specifically, they contend that “[f]ederal law clearly exempts taxicab services 

from FMCSA regulation” and that “Mandelbaum’s business cannot be licensed 

both under the FMCSA Certificate and local Manchester, NH taxicab 

ordinances.” We disagree.

We first examine the federal statutory scheme upon which the 

defendants rely. Title 49 U.S.C. §§ 13101 et seq. (2012) govern the federal 

regulation of interstate transportation provided by motor carriers, water 

carriers, brokers, and freight forwarders, and seek “[t]o ensure the 

development, coordination, and preservation of a transportation system that 

meets the transportation needs of the United States.” 49 U.S.C. § 13101(a). In 

overseeing the transportation of motor carriers of passengers, the federal 

government endeavors “to cooperate with the States on transportation matters 

for the purpose of encouraging the States to exercise intrastate regulatory 

jurisdiction in accordance with the objectives of [49 U.S.C. §§ 13101-14916].” 

Id. § 13101(a)(3)(A). To achieve these goals, Congress has vested the Secretary

of Transportation (Secretary) and the Surface Transportation Board (STB) with 

jurisdiction “over transportation by motor carrier and the procurement of that 

transportation, to the extent that passengers . . . are transported by motor 

carrier” from one state to another or within a single state as long as the 

transportation, in relevant part, crosses into another state. Id. § 13501(1). 

Congress has directed the FMCSA to carry out the “duties and powers related 

to motor carriers or motor carrier safety vested in the Secretary by” the statutes 

here at issue. Id. § 113(f) (2012).
4

Congress, however, explicitly denied the federal government jurisdiction 

over “a motor vehicle providing taxicab service.” Id. § 13506(a)(2). Congress 

has defined taxicab service to mean:

[P]assenger transportation in a motor vehicle having a capacity of 

not more than 8 passengers (including the driver), not operated on 

a regular route or between specified places, and that –

(A) is licensed as a taxicab by a State or local jurisdiction; or

(B) is offered by a person that –

(i) provides local transportation for a fare determined (except with 

respect to transportation to or from airports) primarily on the basis 

of the distance traveled; and

(ii) does not primarily provide transportation to or from airports.

Id. § 13102(22).

Federal law displaces the states’ ability to regulate the “scheduling of 

interstate or intrastate transportation . . . provided by a motor carrier of 

passengers . . . on an interstate route” and to regulate “the implementation of 

any change in rates for such transportation . . . except to the extent that notice 

. . . of changes in schedules may be required” for motor carriers subject to the 

Secretary’s or the STB’s jurisdiction. Id. § 14501(a) (emphasis added). It also 

displaces the states’ ability to enforce any law or regulation requiring a license 

or imposing a fee on motor vehicles providing pre-arranged ground 

transportation service if such service is within the jurisdiction of the Secretary

or the STB, “meets all applicable vehicle and intrastate passenger licensing 

requirements of the State or States in which the motor carrier is domiciled or 

registered to do business,” and is provided pursuant to a contract for 

transportation from one state to a destination in another state or within a 

single state but with an intermediate stop in another state. Id. § 14501(d);

Black Car Assistance Corp. v. New Jersey, 351 F. Supp. 2d 284, 289 (D.N.J. 

2004) (holding that 49 U.S.C. § 14501(d) prohibits enforcing licensing or fee 

requirements against non-resident providers of prearranged ground 

transportation provided they satisfy the requirements of § 14501(d)); S. Rep. 

No. 107-237, at 1 (2002) (“The purpose of this bill . . . is to prohibit a State, . . . 

other than the home licensing State, from enacting or enforcing any law, rule, 

or regulation requiring a license or fee on a motor vehicle that is providing 

prearranged interstate ground transportation service.” (emphasis added)). 

Here, again, the federal law explicitly exempts taxi services from the 

jurisdiction of the Secretary. 49 U.S.C. § 14501(d)(3)(A). Federal law also 

establishes the process that motor carriers must follow to register with the 
5

Secretary and the FMCSA, if they wish to provide interstate transportation 

services. Id. § 13901(a); 49 C.F.R. § 385.301(a) (2014).

The plain language of these statutes requires a motor carrier engaging in

interstate commerce or transit to be within the jurisdiction of the Secretary

and, thus, the FMCSA; purely intrastate activities are left to state and local 

authorities to regulate. See Leonard Express, Inc. v. United States, 298 F. 

Supp. 556, 560 (W.D. Pa. 1969) (recognizing that a motor carrier cannot rely on 

its federal certification to avoid compliance with state law when conducting 

purely intrastate activities). Furthermore, Congress explicitly exempts taxicab 

services from any federal jurisdiction. 49 U.S.C. §§ 13506(a)(2), 14501(d)(3)(A). 

The exemption recognizes that taxicab services are inherently local in nature. 

See Buck v. California, 343 U.S. 99, 102 (1952) (“The operation of taxicabs is a 

local business. For that reason Congress has left the field largely to the 

states.”); I.C.C. v. Miller, 360 F. Supp. 1167, 1170-71 (D.N.H. 1973) (finding 

that federal law generally exempts taxicab services from federal regulation and 

that “bona fide taxicab service” constitutes local transportation). Accordingly, 

we conclude that federal law neither expressly nor implicitly preempts the City

Ordinances.

Nevertheless, when an actual conflict arises between state or local law 

and federal law, state or local law is without effect to the extent that it conflicts

with federal law. Fidelity Federal Sav. & Loan Assn v. De La Cuesta, 458 U.S. 

141, 153 (1982). “An actual conflict exists when it is impossible for a private 

party to comply with both state and federal requirements or where state law 

stands as an obstacle to the accomplishments and execution of the full 

purpose and objective of Congress.” Disabilities Rights Center, 143 N.H. at 678 

(quotation omitted). A motor carrier that provides taxicab service under a state 

or local license would, generally, be exempt from federal regulation. 49 U.S.C. 

§ 13506(a)(2) (exempting taxicab services from federal jurisdiction); 42 U.S.C. 

§ 13902 (detailing how to register as a motor carrier subject to federal 

jurisdiction). This exemption, however, is not without limits. See, e.g., I.C.C. 

v. Mr. B’s Services, Ltd., 934 F.2d 117, 122 (7th Cir. 1991). The taxicab 

services exemption does not extend to transportation provided by taxicabs that 

is not inherently local. Id. Once the transportation ceases to be local in nature

or the provider bills itself as an interstate service, it falls within the jurisdiction 

of the Secretary, the STB, and the FMCSA, and the provider must comply with 

federal law to provide such transportation. See id.; see also Miller, 360 F. 

Supp. at 1171 (concluding that a taxicab service cannot hold itself out as 

providing interstate transportation without securing the necessary licenses 

from the federal government). Accordingly, a taxicab service can be subject to 

local regulation and still fall within the jurisdiction of the FMCSA.

Thus, the defendants’ FMCSA certification provides them with the 

authority to carry passengers in interstate commerce, but it does not authorize

them to provide purely intrastate services that are unrelated to their interstate 
6

services. See Funbus Systems, Inc. v. C.P.U.C., 801 F.2d 1120, 1122, 1129 

(9th Cir. 1986) (concluding that certificate issued by Interstate Commerce 

Commission to operate in interstate commerce grants a limited authority to 

operate along the same routes in intrastate commerce but does not grant the 

certificate holder free rein to operate wholly unrelated intrastate services); East 

West Resort Transp., LLC v. Binz, 494 F. Supp. 2d 1197, 1200 (D. Colo. 2007) 

(noting that for intrastate transportation to qualify as interstate service subject 

to federal regulation, thereby preempting regulation by the state, it “may not 

operate independently of the interstate service, but instead must be conducted 

as part of existing interstate service” (quotation omitted)). Federal law and 

certification do not function as a shield to prevent the enforcement of local 

regulation when the nature of the service provided is intrastate and unrelated 

to the interstate services protected under federal law. See Trans Shuttle v. 

Public Utilities Com’n, 89 P.3d 398, 400 n.3, 404 (Colo. 2004) (concluding that 

federal law preempts local regulatory authority only with respect to a motor 

carrier’s intrastate passenger transportation on same routes over which it 

provides interstate transportation; intrastate activities that are independent of 

the interstate activities are subject to local regulation).

Because the defendants have not shown that they cannot comply with 

the requirements of both federal law and the City Ordinances, they have failed 

to demonstrate that state and federal law actually conflict. See Disabilities 

Rights Center, 143 N.H. at 678. Accordingly, we conclude that the trial court 

erred in dismissing the case. If the trial court concludes that the defendants’ 

transportation service falls within the scope of the City Ordinances, they must 

comply with the requirements of those ordinances.1

Finally, the defendants assert that the determination “of whether their 

business activity falls within the authority granted to them by their federal 

certificate requires the special competence of the issuing authority.” They 

appear to argue that the primary jurisdiction doctrine justifies a stay of the 

court proceedings and a determination of the issue by the FMCSA in the first 

instance. See Reiter v. Cooper, 507 U.S. 258, 268 (1993) (noting that the 

primary jurisdiction doctrine requires a trial court “to enable a ‘referral’ to the 

agency, staying further proceedings so as to give the parties reasonable 

opportunity to seek an administrative ruling,” particularly where the claim 

“contain[s] some issue within the special competence of an administrative 

agency”). However, as the State points out, the City’s enforcement action does 

not “challenge the defendants’ compliance with their federal operating 

authority”; rather, the dispositive issue here is whether the defendants’ 

activities constitute a taxicab service under the City Ordinances. Because this 

is not an issue within the special competence of the FMCSA, the primary 

jurisdiction doctrine is inapplicable.

 

1 Because we so conclude, we need not address the defendants’ argument that the Manchester 

Ordinances unconstitutionally burden interstate commerce. 
7

For all of the foregoing reasons, we conclude that the trial court erred in 

dismissing the State’s charges.

Reversed and remanded.

DALIANIS, C.J., and CONBOY, LYNN, and BASSETT, JJ., concurred.