INDEPENDENT TOWERS OF WASHINGTON, on behalf of themselves and a class of businesses and persons similarly situated; Stormy Glick, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/A & A Towing, dba/Aberdeen Honda Towing, dba/Harbor Towing, dba/Whitney‘s Towing; Mark Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Allicat Towing; Presley, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/City Wide Towing, dba/Great Northwest Towing; Jerry Goodard, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Jerry‘s Automotive & Towing; Rick Greves, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Rick‘s Towing & Automotive Inc.; Donald Roundtree, an individual on behalf of himself and a class of businesses and persons similarly situated, dba/Seattle Central Towing, Plaintiffs-Appellants, v. State of WASHINGTON; Ronald W. Serpas, Chief, Washington State Patrol; Fred Stephens, Director, Washington State Department of Licensing, Defendants-Appellees.
No. 02-35262
United States Court of Appeals, Ninth Circuit
Argued and Submitted June 6, 2003 — Seattle, Washington. Filed November 18, 2003.
350 F.3d 925
Christine Gregoire, Attorney General, Diane McDaniel, Assistant Attorney General, Olympia, Washington, for the defendants-appellees.
Appeal from the United States District Court for the Western District of Washington, Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-01-05535-FDB.
Before: Beety B. FLETCHER, Melvin BRUNETTI, and M. Margaret McKEOWN, Circuit Judges.
OPINION
McKEOWN, Circuit Judge.
The extent to which state and local regulation of towing companies is preempted under federal law has been the subject of much litigation. We have previously considered the issue in the context of California regulations. See Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th Cir.2000) (abrogated in part by City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424, 122 S.Ct. 2226, 153 L.Ed.2d 430 (2002)). Other circuits have considered similar challenges. See, e.g., Tow Operators Working to Protect Their Right to Operate v. City of Kan. City, 338 F.3d 873, 876 (8th Cir.2003), Cardinal Towing & Auto Repair, Inc. v. Bedford, 180 F.3d 686, 693(5th Cir.1999); Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 772-774 (2nd Cir.1999); R. Mayer of Atlanta, Inc. v. City of Atlanta, 158 F.3d 538, 544 (11th Cir.1998) (abrogated in part by City of Columbus, 536 U.S. 424). We now address a challenge by tow operators to the State of Washington‘s regulation of towing businesses.
BACKGROUND
The State of Washington regulates tow truck operators that conduct business within the state. Registered tow truck operators — operators who “engage[] in the impounding, transporting, or storage of unauthorized vehicles or the disposal of abandoned vehicles” or non-consensual towing — are subject to more extensive regulations than operators who tow upon the request of a vehicle owner. See
Independent Towers of Washington (“ITOW“) is a statewide organization of registered tow truck operators. Taking the position that the State‘s regulation of the towing industry is expressly preempted under the Interstate Commerce Act (“ICA“),
The State moved for summary judgment and asserted that the challenged regulations fell within the safety, financial responsibility, and price of non-consensual towing exceptions to ICA preemption. The district court agreed and granted the State‘s motion for summary judgment.
DISCUSSION
The issue presented is whether Washington State‘s regulations fall within the ICA‘s express preemption language. Where Congress explicitly preempts state law, “Congress’ enactment of a provision defining the preemptive reach of a statute implies that matters beyond that reach are not preempted.” Cipollone v. Liggett Group, Inc., 505 U.S. 504, 517, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Thus, because ITOW relies on the express preemption provision of ICA, our review is limited to whether the Washington regulations fall within the scope of this Act. We review this question de novo. Tocher, 219 F.3d at 1045.
The ICA, as amended by the Federal Aviation Administration Authorization Act and the ICC Termination Act, provides that state regulations relating to the price, route, or service of motor carriers are generally preempted:
(1) General rule. Except as provided in paragraphs (2) and (3), a State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier (other than a carrier affiliated with a direct air carrier covered by section 41713(b)(4)) or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.
(2) Matters not covered. Paragraph (1) —
(A) shall not restrict the safety regulatory authority of a State with respect to motor vehicles, the authority of a State to impose highway route controls or limitations based on the size or weight of the motor vehicle or the hazardous nature of the cargo, or the authority of a State to regulate motor carriers with regard to minimum amounts of financial responsibility relating to insurance requirements and self-insurance authorization;
(B) does not apply to the transportation of household goods; and
(C) does not apply to the authority of a State or a political subdivision of a State to enact or enforce a law, regulation, or other provision relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.
The leading Ninth Circuit case addressing preemption of towing regulations is Tocher v. City of Santa Ana. Tocher sets forth the parameters for preemption with respect to the California towing regulations. Id. We now are asked to do the same for Washington State‘s regulations.
I. FORFEITURE OF ISSUES ON APPEAL
ITOW asserts generally in its opening brief that the ICA preempts nearly all of Chapter 46.55 of the Revised Code of Washington (RCW) — Towing and Impoundment — and Chapter 204-91A of the Washington Administrative Code (WAC) — Towing Businesses. Those provisions contain more than twenty-five pages of fine print language. Beyond its bold assertion, ITOW provides little if any analysis to assist the court in evaluating its legal challenge. Notably absent is any explanation of why most of the regulations are preempted and why the regulations do not fall within the well-defined exceptions to preemption.
Instead of making legal arguments, ITOW provides a five page laundry list of the challenged regulations and their titles, leaving the court to piece together the argument for preemption as to each regulation. Indeed, a quarter of ITOW‘s twenty-one page brief is simply a bullet point listing of statutes. The few explanatory footnotes fare no better at illuminating ITOW‘s argument. See Hilao v. Estate of Marcos, 103 F.3d 767, 778 n. 4 (9th Cir.1996) (“The summary mention of an issue in a footnote, without reasoning in support of the appellant‘s argument, is insufficient to raise the issue on appeal.“). By and large, the footnotes simply recast the statutory text rather than making an argument or even pointing the court to a claimed basis for preemption.
Our circuit has repeatedly admonished that we cannot “manufacture arguments for an appellant” and therefore we will not consider any claims that were not actually argued in appellant‘s opening brief. Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir.1994). Rather, we “review only issues which are argued specifically and distinctly in a party‘s opening brief.” Id. Significantly, “[a] bare assertion of an issue does not preserve a claim.” D.A.R.E. America v. Rolling Stone Magazine, 270 F.3d 793, 793 (9th Cir.2001).
The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the
It is ITOW‘s burden on appeal to present the court with legal arguments to support its claims. Absent argument, we decline to pick through the many detailed sections and subsections in an effort to match the statutes and regulations with a preemption theory not articulated to us. Therefore, we do not address any statute or regulation that was not accompanied by legal argument in ITOW‘s opening brief.2
II. PREEMPTION UNDER 49 U.S.C. § 14501(c)(1)
The first statute we address is
Section 46.55.105 does not have even an indirect, remote or tenuous effect on towing companies’ prices, routes or service. In fact, this section does not impose requirements on towing companies at all but rather affects only vehicle owners. Because this section does not impose any requirements on towing/storing companies or influence their prices, routes or service, the statute is not preempted under the ICA.
We are perplexed by ITOW‘s argument with respect to § 46.55.105. In another example of opaque briefing, ITOW merely states that this regulation is similar to
The remaining regulations all relate to “non-consensual towing” — i.e., towing where law enforcement personnel or other authorized persons “determine that a vehicle must be towed and the owner of the vehicle is not afforded the opportunity to request towing services from a specific company.”3 R. Mayer of Atlanta, 158 F.3d at 541 n. 2. The ICA contains a specific exception for non-consensual towing that allows the state to enact regulations that “relat[e] to the price of for-hire motor vehicle transportation by a tow truck.”
There is little doubt that § 46.55.037 is saved from preemption under this exception.
ITOW‘s preemption argument fares no better with respect to
Finally, ITOW challenges regulation of acceptable methods of payment from customers, such as the requirement to accept credit cards. The State asserts that its regulation of the methods of payment, see
AFFIRMED.