The Port of Los Angeles, the nation s largest port and an independent division of the city, requires trucking companies to sign standard-form concession agreements before operating on its premises. In American Trucking Associations, Inc. v. City of Los Angeles1, Justice Kagan s opinion2 for a unanimous Court held that two of the agreements provisions are preempted by the Federal Aviation Administration Authorization Act (FAAAA). The Court deemed premature, and declined to answer, a second question on which it had granted certiorari: whether the Court s 1954 decision in Castle v. Hayes Freight Lines, Inc3. bars the Port from excluding trucking companies for violations of other, non-preempted provisions. All around, this was a narrow ruling.
Port of Los Angeles (Photo by Green Fire Productions/Creative Commons)
The parties dispute arose out of the Port s Clean Truck Program, which it implemented to address community and environmental opposition to its expansion plans. The mandatory concession agreements with trucking companies formed one part of this expansive program. Only two of the agreements more mundane requirements were at issue by the time the case reached the Court. The first required trucking companies to post a placard on each truck providing a phone number to call with safety or environmental complaints. (In explaining that provision, Justice Kagan included a subtle tribute to 1980s pop, using the number 867 53094 as her example. This song will be hard to get out of your head.) The other provision at issue required trucking companies to submit an off-street parking plan for all permitted trucks.
As described in more detail in my preview5, the first question presented in the case and the only question the Court decided was whether, as the Ninth Circuit had held, these two contract provisions are saved from FAAAA preemption by some version of a market participant exception applicable when a government entity functions as a market actor. The Port had located such an exception both in the statutory text, which preempts only state actions having the force and effect of law, and in a potentially broader, freestanding market participant doctrine. And the Port claimed it had acted in a market capacity here, because the concession agreement was essentially a private contract that the Port created for business reasons. Petitioner American Trucking Associations (ATA) disputed the existence of any freestanding market participant doctrine and anchored its argument to the statutory text. It argued that the contract provisions plainly have the force and effect of law within the statute s meaning and are therefore preempted because they are enforceable by criminal penalties.
ATA s argument carried the day, with the criminal penalties emerging as the critical factor. The Court did agree with the Port s premise : that the FAAAA s force-and-effect-of-law clause applies only to a State acting as a State, and not a state acting as any market actor. But that statutory reading gets the Port nothing, Justice Kagan continued, because the Port here exercised classic regulatory authority. While the Court acknowledged that the distinction between regulatory and proprietary action is a rough line with soft edges, it found this case to be an easy call: threatening the hammer of the criminal law counts as regulatory conduct if anything does. It matters not, the Court continued, if the Port s motives were business-related; the availability of criminal sanctions decides the question. The Court therefore did not need to address in any detail the parties arguments regarding what a test for market participation might look like.
The Court could have gone further and addressed the Port s argument that, beyond the statutory text alone, a freestanding market participant doctrine imposes a barrier to preemption. But the Court concluded in a footnote that it had no occasion to consider that possibility, because the Port had emphasized the statutory approach at oral argument. Thus, in resolving the preemption question, the Court favored a narrow path in two ways: by finding it unnecessary to describe any metes and bounds of market participation beyond the dispositive factor of criminal penalties, and by avoiding the potentially broader question whether a freestanding exception exists.
As noted, the Court had granted certiorari on a second question, regarding the effect of Castle. That decision held that a state could not bar a federally licensed motor carrier from state highways based on prior violations of state safety regulations. According to ATA, Castle forbids the Port from denying access to trucking companies that violate any non-preempted requirements of the concession agreement. But the Court decided not to decide the question. As the Court s opinion observed, the parties agreed that the Port could deny access to trucks contemporaneously in violation of the agreement s requirements, so the real question was whether the Port s enforcement scheme entails anything more than that. Given the pre-enforcement posture of this case, the Court explained, answering that question now would be a shot in the dark. This represented a modest victory for the Port, which could have found its enforcement powers significantly hamstrung by a broad ruling under Castle.
Justice Thomas joined the Court s opinion in full and added a brief concurrence questioning the FAAAA s constitutionality. He expressed doubt that Congress has . . . authority under the Commerce Clause to regulate apparently intrastate matters like the parking and placards of the trucks at issue. This doubt echoes Justice Thomas s preferred approach to Commerce Clause questions, but does not signal a likely direction for the Court any time soon.
The decision in Plain English:
The Port of Los Angeles imposed mandatory contracts on trucks wishing to operate on its premises. The Court held that because two challenged provisions of the contracts requiring the trucks to carry a placard providing a number to call with complaints, and requiring the trucking companies to submit an off-street parking plan for each truck have the force and effect of law, they are preempted by the Federal Aviation Administration Authorization Act. The Court chose not to decide a second question regarding the scope of the Port s ability to bar trucks from entering its premises.
Recommended Citation: Miriam Seifter, Opinion analysis: In deciding American Trucking, the Court takes a narrow road, SCOTUSblog (Jun. 14, 2013, 11:03 AM), http://www.scotusblog.com/2013/06/opinion-analysis-in-deciding-american-trucking-the-court-takes-a-narrow-road/
American Trucking, the Court takes a narrow road” st_url=”http://www.scotusblog.com/2013/06/opinion-analysis-in-deciding-american-trucking-the-court-takes-a-narrow-road/”> ^ American Trucking Associations, Inc. v. City of Los Angeles (www.scotusblog.com)
Trucker Dustin Lund delivered potatoes in Minneapolis Thursday morning. The drive from Wisconsin took a little more than three hours — and every hour counts.
“You take a look over at your logbook and find out you’re not, you’re not necessarily on,” described Lund, “and you might have to stop a little bit sooner than what you expected.”
Right now truckers like Lund can drive a maximum of 82 hours per week, but because of new regulations set to kick-in July 1, the new max will be 70.
“Well first of all we don’t think they’re needed,” stated Minnesota Trucking Association President John Hausladen. He says the new hour limit will also limit productivity, and that could limit you.
“People are still gonna get their stuff,” he said, “but what might happen is it might take a little longer and it might cost a little more.”
Meanwhile, groups on the other side of the debate say the new rules don’t go far enough. John Lannen, the executive director of the Truck Safety Coalition, said “it’s all about safety … there is too much potential for fatigue with the number of hours truckers drive.”
Hausladen disagrees, saying “the average driver needs to worry more about another passenger car driver then they do about a truck driver on the road next to them.”
As for Lund, he says he’ll stay busy learning the new rules, saying “it just creates more frustration I guess.”
There is ongoing litigation challenging the new regulations. The Minnesota Trucking Association is still telling their members to learn the new rules for now though, saying the litigation probably won’t be settled by July.
The pictures from Theo Soileau s life surround him.
There are 78 years worth of pictures pictures of Soileau s family, his horses, his motorcycles, his billiard trophies, the trucks he drove and the dogs he bred. They begin on the wall behind his bed, reach to the ceiling and wrap their way completely around Soileau s half of a double room at the Eunice Manor nursing home. They cover the front of Soileau s armoire, both sides of the door to his room, even the back of his wheelchair.
I guess you could say I ve got my life all around me, said Soileau with a grin.
Those pictures chronicle the life of a man who apparently never gave up a childhood dream; who instead carried those dreams into adulthood. Soileau has had what he terms his five passions in life and he s indulged all of them. He has been a horse-training, pool-shooting, motorcycle-riding truck driver who raised dogs.
His horses won awards for performance. He owned a series of 14 motorcycles over the years. His trophies include a first place for shooting call-pocket eight ball and he drove 18-wheelers more than three-million miles without an accident.
But it s the dogs that Soileau will be remembered for the longest.
I raised German shepherds, some of the biggest and some of the best, said Soileau.
I was proud of those dogs.
He should be. Soileau s German shepherds are roundly regarded as among the best guard dogs used by law enforcement. Two of his dogs are currently being used as police dogs in Nicaragua, two by the Eunice Police Department and four others patrol the periphery fence at the Louisiana State Penitentiary at Angola.
Prison guards and dog handlers there swear by them and, among those officers is Capt. Robert M. Tycer, with the K-9 unit at Angola.
His (Soileau s) dogs are just about the best I ve seen, said Tycer. They re good physically, but it s not so much that. It s their temperament and their social skills. They learn fast.
Soileau s interest in German shepherds began as a boy, growing up in the rural area of Durald, near Eunice. On weekends, young Theo Soileau went to town, where he watched Rin Tin Tin save the day in one black and white Saturday afternoon melodrama after another in the Liberty Theater.
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I loved those movies, said Soileau, and I wanted one of those dogs.
As an adult, Soileau joined the Army. He was discharged in 1962 and one of his first acts as a civilian was to order two German shepherd puppies from the Spiegel Home Shopping Book, a catalog that offered puppies from 46 different breeds.
Soon, Soileau had a kennel started, eight females and two males and he kept 10 to 15 puppies on hand, for sale, at any given time. Soileau s dogs were a European variety, big-boned and heavy, weighing 80 to 90 pounds each, one of them even reaching 150 pounds.
I fed them the best, and I kept them healthy, he said.
Soileau bred and sold dogs for years, most as pets and a few for utility (seeing-eye and guard and police dogs). Then, in the late 1990s, he found Zippo.
There was a Vietnam vet in Lake Charles who d lost a leg in a land mine accident, said Soileau. He had this dog, a big dog, and he said he had to get rid of him. He was crazy about the dog, but the dog was so strong it was pulling him down and he was afraid he d hurt the good leg.
Soon as I saw that dog I knew he was special. He was black, and he was big, and he had perfect conformation.
That man didn t want to let him go, but he said he could tell I was a dog man and I d know what to do with him.
He and his wife were both standing in their doorway, crying when I drove away with him.
Soileau bred Zippo, and the big German shepherd passed exceptional genes on to his offspring.
The dogs that now patrol Angola were fathered by Zippo.
Training a guard dog is a continuous process, said Tycer, who helps manage the dogs at the prison. It s not just a one-time thing. It s every day. They have to be smart and be able to continuously learn.
Mr. Soileau had European stock. They re just better than the American breed for what we do.
Each night the dogs patrol an area between two fences around the periphery of the prison, an area that must be crossed to leave the grounds. Tycer won t elaborate on what the dogs will do to anyone who ventures into their path, but agreed that they would not trot up and lick their hand.
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We don t like to go into exactly what they re trained to do, but they re a deterrent to escape, said Tycer.
Since acquiring Soileau s dogs, prison personnel have bred them again, in hopes that Zippo s qualities will be passed on. Tycer was so taken with the dogs that he made it a point to learn who had bred the original stock, and he wrote Soileau, commending his dogs.
Your bloodline had and continues to be used at Angola and now at other prisons across the state, wrote Tycer. With a little luck and some training, I hope these new puppies can also become an asset for law enforcement.
I would like to thank you for breeding and keeping a good bloodline going over the years.
A copy of that letter also went on Soileau s wall, beside a picture of Zippo.
There are other pictures, mostly associated with good times: Soileau on a horse, riding off into the woods accompanied by a group of his dogs, Soileau on one of his gigantic motorcycles, Soileau in one of the massive trucks he logged so many miles in.
There are other photos that carry a touch of pain: a picture of Soileau s wife, Sylvia, who died 20 years ago; his daughter Monique, who died last Christmas Eve at 48 with heart disease; his son, Lane, 36, now confined to a wheelchair after a motorcycle accident; and his son, Todd, 33, also confined to a wheelchair after a stroke.
His third son, Bernard, 45, lives in Eunice.
I ve had my share of hard times, said Soileau.
He s also had his share of good luck. Seven years ago, he was diagnosed with stage 4 lung cancer, often considered a death sentence.
Soileau not only recovered, he has been cancer-free ever since.
Four years ago, at 74, he took his last motorcycle ride. As he was sitting at a stop light in Eunice, a car rear-ended him, sending Soileau flying and destroying the bike. He suffered several broken ribs, but no serious injuries.
Today, diabetes has confined him to a wheelchair, but it hasn t broken his spirit. Soileau still shoots pool with his friends, albeit from a sitting position. He jokes with everyone in hearing distance and makes inappropriate, if humorous comments about the women nearby.
You deal with whatever is handed to you, he said, glancing down at his legs.
I ve had a great life. I still have a great life and I ve had some good dogs.
published: 2013-06-07 17:12:09
If there’s one thing History’s Ice Road Truckers1 has taught us, it’s that trucking ain’t easy. And in frigid climates, it’s especially dangerous. The History Channel has had success with an unscripted series about the trucking industry, and now it looks like Showtime may be giving the topic a whirl with a new drama in development.
Better known and celebrated (presently) for his poetry, Tony Tost2 has already made the transition from poetry to TV writing with a few episodes of Longmire. And today, Deadline3 reports that he’s developing a drama for Showtime4 called Heartland Trucking. The project would be a scripted look at the world of truckers in middle America, centering on a family run business that serves truckers along with its own criminal agenda.
I’ve often wondered what it was like to be a trucker. I blame Over the Top for my interest in the subject (as well as my curiosity about the world of competitive arm-wrestling). There’s so much traveling involved, so much time spent on the highways and managing that huge vehicle on the road, moving things from A to B. Stopping at rest stops. Spending time away from home. There’s potential for a drama in that kind of lifestyle, though it sounds like Tost’s project focuses on a family run business, so it’s unclear how much of the show would take place on the road. Either way, the concept seems interesting. We’ll have to wait and see if this one moves forward, and if so, who’s cast in the lead.
In addition to Tost’s involvement, the project is being developed by Television 360 (Game of Thrones) and Fox 21.
According to a report by Punch, a heavy loaded 40-foot container fell on a government meat van yesterday June 6th, crushing a passerby and wounding several others. The sad event took place at Ikeja Along Bus Stop on Lagos-Abeokuta Expressway in Lagos. Eyewitnesses said the truck had swerved off the road to avoid colliding with some policemen, who were chasing a motorcycle rider, before the incident occurred around 9am. The victim, identified as Samuel Ogunnaike, was an employee of a popular phone dealer in Computer Village, Ikeja, and was on his way to the office when he met his death. Any hope that he could survive the accident was dashed after he was trapped for about four hours before his body was retrieved from the wreckage. (Punch)
The latest video from expert foliage delivery man and Nursery Man Phillip Westaby and his rather tidy Volvo
Delivering to nurseries around the country he does get himself into some places
Statistics from the US Department of Transportation (DOT) have recently shown that commercial trucking accidents are on the rise leading to thousands of injuries and deaths each year. The DOT has stated that one of the most common causes of these accidents is
- Driver Fatigue among others such as:
- substance abuse (illegal drugs, alcohol, and prescription drugs)
- improperly loaded cargo (overweight and unsafe)
- speeding, and
- inspections not made in compliance with DOT regulations.
Driver Fatigue, according to the Federal Motor Carrier Safety Administration (FMCSA) accounts for 13% of all trucking accidents. To remedy such the FMCSA has enacted strict legal guidelines for hours of service in which truckers may work. A truck driver cannot drive more than 11 consecutive hours, no more than 60 hours in a 7 day period and must rest at a minimum of 10 hours a day. 395.5 http://www.fmcsa.dot.gov/rulesregulations/administration/fmcsr/fmcsrruletext.aspx?reg=395.31
In South Carolina, the law for driving commercial vehicles is that No driver shall operate a motor vehicle while the driver s ability or alertness is impaired due to fatigue, illness, or any other cause as to make it unsafe for him to begin or continue to operate the motor vehicle. 49 C.F.R. 392.3. Truck drivers are held to a higher standard because they are professional drivers with a special license and since destruction from a truck weighing 80,000 lbs is significantly greater than the result of a smaller auto-to-auto collision, where the average car weighs only 4,000 lbs. Further the FMCSA has set such standards to protect the public s safety at large to which truckers must follow in order to properly operate their vehicles. Such standards as properly inspecting the truck before embarking on a trip, obeying speed limits set by state government and properly loading the truck in both a safe manner and of a correct weight.
However, since many truck drivers pay depends on the number of miles driven these regulating laws set forth by state and federal governments are often neglected by the truck drivers and companies employing them. What this means is that as the multi-billion dollar trucking industry continues to grow with projections of over $600 billion dollars by 2015, a higher percentage of truck-related accidents will occur for the rest of us.
Pierce, Herns, Sloan & Wilson has proven driver fatigue in many cases. In the discovery process we obtain cell phone records, fuel receipts, satellite tracking data, bills of loading and other documents with dates and times. This information is used to prove that the truckers log book is false and to determine the true number of hours the driver worked without rest, proving driver fatigue.
If you or a loved one has been injured in a truck accident, truck driver fatigue may be to blame. An experienced truck accident attorney can work to make sure the cause of your accident is thoroughly investigated and the parties responsible are held accountable. Call us at 843-722-7733 and we can help.
New research offers clear insight into the way youth view Canada s trucking industry, and identifies the features of successful programs which could attract the industry s next generation of employees, Trucking HR Canada has announced.
Today s Youth, Tomorrow s Drivers: Attracting Canada s Youth to Opportunities in Trucking was based on the results of extensive focus groups, site visits, online surveys and interviews with high school students and educators alike. Its release follows a recent Conference Board of Canada report1 which projects a shortage of between 25,000 and 33,000 drivers by 2020, due in part to an aging workforce that is approaching retirement.
The researchers behind Today s Youth, Tomorrow s Drivers found that Canada s youth have a relatively positive view of the trucking industry, and are attracted by many of the benefits offered by industry careers, says Tamara Miller, Trucking HR Canada s director programs and services. This data can be used to refine messages which target youth. A related analysis of school-to-work programs can also be used to guide initiatives that will build bridges between the school system and careers in trucking.
Key recommendations in the report call for:
marketing materials and branding elements which specifically target youth.
identifying or creating entry-level career paths into driving occupations. Appropriate jobs for youth aged 19 to 25 must be made available, researchers concluded. Introduce them to driving occupations, and start to build their relevant skills as early as possible.
new industry-education partnerships. Schools with existing vocational programs already have an infrastructure in place, interested student populations, and experienced educators and liaison staff, researchers said.
using up-to-date National Occupational Standards, reviewing the opportunity for high-schools and colleges to develop national driving-related curriculum. One potential opportunity involves Ontario s Specialist High Skills Major Program.
Based on the findings, Trucking HR Canada is pursuing potential national initiatives that will effectively attract youth to careers in trucking.
While today s youth are concerned about the prospect of long periods away from home, long hours, working conditions and perceived safety risks in the trucking industry, they are interested in the promise of travel, independence, challenging work, and steady employment opportunities, researchers found. Educators admitted to being concerned about the extended time from home and perceived safety risks but they also recognized that the industry has an ongoing need for labour.
There are barriers to overcome. Today s youth are less passionate about cars and driving than previous generations, and less likely to have their driver s licence. Many youth are expected to be relatively inexperienced drivers into their early 20s. Restrictions relating to the minimum driving age require entry-level careers that still appeal to the search for autonomy, independence, and challenging work for those between the ages of 19 and 25, researchers concluded.
Participating educators also cited concerns about low pay within the industry, adding support to a key recommendation by the Canadian Trucking Alliance s Blue Ribbon Task Force on the Driver Shortage in Trucking, which stated that the industry s compensation packages need to be competitive with or better than alternative employment options.
Meanwhile, Today s Youth, Tomorrow s Drivers offers case studies that explore already-successful school-to-work programs such as the Bramalea Secondary School Truck and Coach Program, Manitoba s Entry Level Professional Truck Driver Training Program, and SAIT Polytechnic s School of Transportation. Other studied programs serve industries as diverse as aerospace and construction.
For example, the Bramalea Secondary School program offered in partnership with Centennial College and the University of Ontario Institute of Technology (UOIT) has students completing their secondary school diplomas while taking courses which focus on various aspects of the transportation industry. Classes take place in a $2-million facility with a pair of drive-through tractor-trailer bays, classroom labs and an open lab work area. Hands-on learning at the facility is strengthened through coop programs, job shadowing, field trips and excursions, all under the guidance of a vice-principal who once operated a trucking company.