DEPARTMENT OF TRANSPORTATION ‑- FERRIES ‑- PROHIBITION OF COMMERCIAL FERRY CROSSING WITHIN TEN MILES OF A STATE FERRY CROSSING

DEPARTMENT OF TRANSPORTATION ‑- FERRIES ‑- PROHIBITION OF COMMERCIAL FERRY CROSSING WITHIN TEN MILES OF A STATE FERRY CROSSING

1.   RCW 47.60.120 prohibits a commercial ferry crossing within ten miles of a state ferry crossing.  The prohibition in RCW 47.60.120 applies to passenger-only ferries.

2.   The ten-mile distance in RCW 47.60.120 is ten statute miles measured by airline distance.

3.   The ten-mile rule in RCW 47.60.120 is applied by comparing the state ferry crossing to the commercial ferry crossing.  A crossing consists of the two end points or termini of the run.  If the two end points or termini of the commercial ferry crossing are within ten miles of the two end points or termini of the state ferry crossing, the commercial ferry crossing is prohibited.

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                                                               November 27, 1990

The Honorable Duane Berentson
Secretary of Transportation
Transportation Building,
KF-01 Olympia, Washington 98504-5201

                                                                                                                 Cite as:  AGO 1990 No. 16

Dear Sir:

            By letter previously acknowledged, you have requested our opinion regarding the application of the "ten-mile rule" contained in RCW 47.60.120.  We paraphrase your questions:

            1.         Does RCW 47.60.120 apply to passenger-only ferry service?
            2.         How is the ten-mile distance in RCW 47.60.120 to be measured?
            3.         How should the ten-mile rule be applied in analyzing a particular commercial ferry crossing?

                                                               BRIEF ANSWERS

            1.         RCW 47.60.120 does apply to passenger-only ferries.
            2.         The ten-mile distance in RCW 47.60.120 is ten statute miles measured by airline distance.
            3.         The ten-mile rule is applied by comparing the state ferry crossing to the  Orig. Op. Page 2 commercial ferry crossing.  A crossing consists of the two end points or termini of the run.  If the two end points or termini of a commercial ferry crossing are within ten miles of the two end points or termini of the state ferry crossing, the commercial ferry crossing is prohibited under RCW 47.60.120.

                                                                BACKGROUND

            The ten-mile restriction to which you refer in your letter is contained in RCW 47.60.120 which states, in pertinent part:

                        If the department acquires or constructs, maintains, and operates any ferry crossings upon or toll bridges over Puget Sound or any of its tributary or connecting watersthere shall not be constructed, operated, or maintained any other ferry crossing upon or bridge over any such waters within ten miles of any such crossing or bridge operated or maintained by the department excepting such bridges or ferry crossings in existence, and being operated and maintained under a lawfully issued franchise at the time of the location of the ferry crossing or construction of the toll bridge by the department.  The department shall not maintain and operate any ferry crossing or toll bridge over Puget Sound or any of its tributary or connecting waters that would infringe upon any franchise lawfully issued by the state and in existence and being exercised at the time of location of the ferry crossing or toll bridge by the department, without first acquiring the rights granted to such franchise holder under the franchise.

(Emphasis added.)  This section was enacted in 1949.  Laws of 1949, ch. 179, § 6.  Amendments (not material here) were made in 1984.  Laws of 1984, ch. 7, § 307.

            A similar prohibition in RCW 47.56.220 prohibits crossings that connect lands connected by a toll bridge, within ten miles of the toll bridge.  RCW 47.56.220 was initially enacted in 1937.  Laws of 1937, ch. 173, § 13.  Amendments (not material here) were made in 1979 and 1983.  Laws of 1979 Ex. Sess., ch. 212, § 19; Laws of 1983, ch. 3, § 128.

            Commercial ferry service is regulated by the Washington Utilities and Transportation Commission (WUTC) under chapter 81.84 RCW.  The scope of this chapter is set forth in RCW 81.84.010:

            No steamboat company shall hereafter operate any vessel or ferry for the public use for hire between fixed termini or over a regular route upon the waters within this state, including the rivers and lakes and Puget Sound, without first applying for and obtaining from the commission a certificate declaring that public convenience and necessity require such operation:  PROVIDED, That no certificate shall be required for a vessel primarily engaged in transporting freight other than vehicles, whose gross earnings  Orig. Op. Page 3 from the transportation of passengers and/or vehicles, are not more than ten percent of the total gross earnings of such vessel. . . .

            On two previous occasions, this office has been requested to provide its opinion on the interpretation of RCW 47.60.120.1/

            In AGO 1949-51 No. 128 we said that a commercial ferry operation between Ballard and Suquamish was not barred by RRS § 6584-35 (recodified as RCW 47.60.120) since no state ferry system had yet come into existence.  Id. at p. 4.

            AGO 59-60 No. 142 involved a proposed service by passenger vessel between Seattle and Tacoma.  Relevant state ferry routes existed between Tacoma and Vashon Island and between West Seattle, Vashon Island and Southworth.  Id. at p. 1.  The opinion noted that RCW 47.60.120 was patterned after a California statute covering the same subject matter.  A prior version of this California statute had included competition as an element to be considered in evaluating a proposed commercial service, allowing the California Toll Bridge Authority to withhold approval of the commercial crossing if the proposed service would threaten state toll bridge revenues.  This concept was displaced by a mileage prohibition, which was thereafter adopted in this state as RCW 47.60.120.

            Based on this historical analysis, coupled with the rather explicit statutory language, the opinion concluded that the ban on commercial ferries in RCW 47.60.120 was absolute.  It did not depend on whether the commercial ferry would in fact divert traffic from the state ferry system or whether the commercial ferry crossing was between lands connected by a state ferry.  We said:

            The statute itself plainly and unambiguously prohibits rival2/ ferry crossings over any waters within ten miles regardless of whether the rival ferry crossing is between the lands that are connected by a Washington state ferry crossing and regardless of whether in fact a significant amount of traffic would be diverted.

AGO 59-60 No. 142 at 4.

            The opinion did not reach a conclusion about the applicability of RCW 47.60.120 to the proposed service between Seattle and Tacoma.  Instead, the opinion stated that whether the proposed service was a "ferry," and whether the proposed crossing was "within ten miles" of a state ferry crossing, were questions of fact to be resolved by the WUTC when it decided the application for the proposed service.  AGO 59-60 No. 142 at 5.

             Orig. Op. Page 4

                                                                     ANALYSIS

            In a recent opinion, we summarized the general rules of statutory construction, which we have rephrased below:

            First, words in the statute are to be given their plain and ordinary meaning unless a contrary intent appears, and where such language is clear, it must be respected.  Federated Am. Ins. Co. v. Marquardt, 108 Wn.2d 651, 658, 741 P.2d 18 (1987);Griffin v. Dep't of Social & Health Servs., 91 Wn.2d 616, 624, 590 P.2d 816 (1979).  Second, it is not proper to read additional language into the statute that the Legislature is perceived to have omitted.  Auto. Drivers & Demonstrators Union Local No. 882 v. Dep't of Retirement Sys., 92 Wn.2d 415, 421, 598 P.2d 379 (1979).  Finally, the statute must be read as a whole, and its language construed in light of the statute's overall object and purpose.  Eastlake Comm'ty Cy. v. Roanoke Ass'n, Inc., 82 Wn.2d 475, 490, 513 P.2d 36 (1973);Wilson v. Lund, 74 Wn.2d 945, 947, 447 P.2d 718 (1968).

AGO 1990 No. 1 at 4.  With these principles in mind, we turn to your questions.

            Question 1:

            Does RCW 47.60.120 apply to passenger-only service?

            A threshold question is whether the ten-mile rule applies to passenger-only service.  In chapter 81.84 RCW, there is a distinction between a "ferry" and a "vessel" when both operate as a link in the highway system.  In this context a "ferry" contemplates carriage of automobiles and passengers while a passenger-only operation would be included in the term "vessel."  SeePuget Sound Navigation Co. v. Dep't. of Pub. Works, 156 Wash. 377, 383-84, 287 P. 52 (1930).3/

            A similar distinction was implied in AGO 59-60 No. 142 at 5.

            However, the Legislature does not recognize this distinction between "ferry" and "vessel" in chapter 47.60 RCW.  A passenger-only vessel is a ferry under chapter 47.60 RCW.  The Legislature clearly established this point in 1974 when it enacted RCW 47.60.017, a legislative finding "that the state ferry system is a public mass transportation system."4/

             Orig. Op. Page 5

            In 1987 the Legislature amended chapter 47.60 RCW and expressly authorized certain procedures for the Department of Transportation (DOT) to obtain passenger-only ferry vessels.  Laws of 1987, ch. 183.  See RCW 47.60.651 ("Whenever the department is authorized to purchase one or more newpassenger-only ferry vessels of a proven and operational design"); RCW 47.60.653 ("The department shall send . . . a request for proposal outlining the criteria for the passenger-only ferry vessels").  (Emphasis added.)

            Accordingly, we believe that the Legislature contemplated that passenger-only vessels constitute a ferry for purposes of RCW 47.60.120,5/ and should be subject to analysis under the ten-mile rule contained therein.

            Question 2:

            How is the "ten-mile" distance in RCW 47.60.120 to be measured?

            The statute is silent on whether "within ten miles" means within ten nautical miles (6,076 feet) or statute miles (5,280 feet), and whether the mileage is to be measured using a straight line (airline miles) or the shortest travelled route (road miles).  We have found no Washington case that has decided either of these issues in interpreting statutory language of this specific type.  However, because a ferry is often considered a part of the highway to which it is connected,State ex rel. King Cy. v. Murrow, 199 Wash. 685, 691, 93 P.2d 304 (1939), it is reasonable to conclude that the same method of distance measurement used for highways (statute miles) is appropriate.

            With respect to the distinction between road miles and air miles, we note that cases from other jurisdictions have concluded that the normal and ordinary meaning of statutory provisions containing phrases such as "within [some distance]" is a straight line (airline) distance from the identified location.6/

             Orig. Op. Page 6

            The same interpretation has been applied in cases involving non-competition covenants containing geographic restraints.  The Washington court has construed similar covenants referring to a "radius of [some distance]" as a straight line distance, absent evidence that the drafters contemplated a different meaning.  Mead v. Anton, 33 Wn.2d 741, 753, 207 P.2d 227 (1949); LeMaine v. Seals, 47 Wn.2d 259, 268, 287 P.2d 305 (1955).

            We conclude that the ten miles should be ten statute miles measured by airline distance.

            Question 3:

            How should the ten-mile rule be applied in analyzing a particular commercial crossing?

            RCW 47.60.120 prohibits construction, operation, or maintenance of "any other ferry crossing upon or . . . over any such waters within ten miles of any such crossing . . . operated or maintained by the department . . . ."  In interpreting the ten-mile restriction in RCW 47.60.120, an initial problem is how to interpret the term "crossing" in the context of that section.

            A ferry has been described as a substitute for a bridge where a bridge is impracticable‑-a link in the highway system.  Puget Sound Nav. Co. v. United States, 107 F.2d 73, 74 (9th Cir. 1939).  One option would be to follow the bridge analogy and construe the term "crossing" as the entire route travelled.  This would include the termini at each end and the water in between.

            However, when comparing two crossings (a commercial crossing and a state crossing) in the context of RCW 47.60.120, this description lacks meaning, since it would follow thatevery point on a commercial crossing would have to be less than ten miles from every point on the state crossing in order to be prohibited.  For example, a state crossing more than ten miles long (e.g., fifteen miles) could face an identically-routed commercial crossing, since some points (e.g., the beginning) on the commercial crossing would be farther than ten miles from some points (e.g., the end) on the state crossing.  The commercial crossing (viewed as a whole) would not be within ten miles of the state crossing (also viewed as a whole).  Such a construction would give minimal protection to the state ferry system.7/

             But a ferry is not a bridge.  There is no span of concrete crossing the water.  Therefore, a second option would be to define the term "crossing" in relation to its termini, that is, the beginning and the end of the run but not the water in between.  Under this approach the termini of the commercial crossing are compared with the termini of the state crossing.  We believe that this is the preferred approach.  This interpretation is  Orig. Op. Page 7 consistent with the logical notion that a crossing is defined by its termini, not the route over which it may travel.  Thus, there is a crossing from Seattle to Bremerton and from Edmonds to Kingston.

            Moreover, because the statute prohibits a commercial crossing within ten miles of "any such [state] crossing," not two or more state crossings, it follows that each state ferry crossing (e.g., Seattle/Bremerton or Edmonds/Kingston) at issue should be analyzed separately in determining whether the statutory prohibition applies.

Thus, if the corresponding termini of a commercial crossing are within ten miles of the termini of a state crossing, the prohibition in RCW 47.60.120 applies.8/

            The prohibition does not apply if one terminus of a commercial crossing is within ten miles of the terminus of a state crossing but the other terminus of the commercial crossing is more than ten miles from the other terminus of the state crossing.  This is because the commercial crossing, defined by its termini, is not within ten miles of a state crossing.

            The following examples illustrate the application of this rule.  For each of the examples which follow, the solid line represents a state crossing and the dotted line represents a commercial crossing.  Each circle has a ten-mile radius.

                                                              ILLUSTRATION #1

 Orig. Op. Page 8

                                                              ILLUSTRATION #2

                                                              ILLUSTRATION #3

 Orig. Op. Page 9

                                                              ILLUSTRATION #4

            In none of the examples above did we analyze whether the commercial crossings connected the same lands or engaged in actual competition with the state ferries.  As  Orig. Op. Page 10 we explained in the discussion of our prior opinions, the ban on commercial ferries in RCW 47.60.120 does not depend on whether the proposed commercial ferry route would connect the same lands as the state route, or compete with an existing state ferry route.  If these factors were intended to be considered, the Legislature could have adopted a standard similar to RCW 47.56.220 (prohibiting certain new bridges connecting the same lands as a state toll bridge), or language which recognized competition as the standard to be applied.  But the Legislature did not specify either standard in enacting RCW 47.60.120, and consistent with our prior opinions, we do not believe such factors can legitimately be implied.

            It is noteworthy that AGO 59-60 No. 142 was written over 29 years ago.  Support for our interpretation is evidenced by the fact that the Legislature amended RCW 47.60.120 in 1984, but did not add either the "competition test" or the "connecting lands test," which that opinion observed were absent from the statute.

Reenactment of a statute without substantial change after it has been construed by an appellate court evidences the Legislature's agreement with that construction.  St. John Farms v. D.J. Irvin Co., 25 Wn. App. 802, 805-06, 609 P.2d 970,pet. for review denied, 94 Wn.2d 1002 (1980).  Although opinions of the Attorney General as to statutory construction are not controlling, they are entitled to considerable weight.  Bellevue Fire Fighters v. City of Bellevue, 100 Wn.2d 748, 750 n. 1, 675 P.2d 592 (1984).  Logic would suggest that reenactment of a statute without substantial change after it has been construed by the Office of the Attorney General would be at least some evidence of legislative concurrence in that construction.

            The case law, to the extent it exists, supports our interpretation.  There have been no decisions rendered under either RCW 47.60.120, the California statute after which it was patterned,9/ or prior versions of the California statute.  However, we have found two cases, albeit venerable ones, which were decided on facts similar to those addressed in some of your questions.

            InSprague v. Birdsall, 2 Cow. 419 (N.Y. Sup. Ct. 1823) the New York legislature granted a franchise to the Cayuga Bridge Company to construct a toll bridge across Cayuga Lake.  The statute granting the franchise stated that it was unlawful for any person to cross the lake within three miles of the bridge without paying the toll, unless such person used their own boat.  The plaintiff began his crossing (on ice) six miles below the bridge, but arrived on the other side of the lake at a point less than a mile from the bridge.  The issue was whether this crossing was "within three miles" of the bridge.  The court held that the plaintiff's conduct "did not fall within the language of the act, nor . . . within the reason of it."  2 Cow. at 420.

            InCayuga Bridge Co. v. Stout, 7 Cow. 33 (N.Y. Sup. Ct. 1827) the Court stated the rule as follows:  "To constitutea crossing of the lake within the meaning of the act,  Orig. Op. Page 11 the place of entering upon, as well as leaving the lake, on ice, must be within three miles of the bridge. . . ."  Id. at 34.  (Emphasis added.)  We believe this is also a proper interpretation of RCW 47.60.120.  RCW 47.60.120 prohibits a commercial crossing the beginning and end (termini) of which are both within ten miles of the beginning and end (termini) of a state crossing.

            We are mindful of the rule of statutory construction that a statute is not to be interpreted to yield unjust or unreasonable consequences.  Yakima First Baptist Homes v. Gray, 82 Wn.2d 295, 301, 510 P.2d 243 (1973).  We have considered the point that our interpretation would allow a commercial ferry crossing that might compete with a state crossing but would prohibit a commercial crossing that might not compete with a state crossing.  Indeed, considering the existence of the numerous islands in Puget Sound and the sinuous topography of its coastline, application of the ten-mile rule might result in consequences which may appear to be unjust or unreasonable.10/

             On the other hand, to construe RCW 47.60.120 to prohibit commercial ferry crossings which only "touch" the ten-mile limit at any point would also prohibit "apparently non-competitive" commercial crossings.  Moreover, to construe RCW 47.60.120 to include a "competition standard" or a "connecting lands standard" would arguably allow commercial crossings in direct contradiction to the express terms of the "within ten miles" prohibition in RCW 47.60.120, and contrary to our prior opinion.

            There were several mechanisms by which the Legislature could have afforded protection to the state ferry system vis a vis new commercial ferry crossings.  It could have established a "competition standard" by which a commercial ferry crossing would be banned if it would divert significant revenues from the state system; or it could have established a "connecting lands standard" similar to the standard in RCW 47.56.220, which bans a commercial ferry crossing if it connected the same lands as the state ferry.

            However, as we explained in AGO 59-60 No. 142, the Legislature did not adopt any of these standards.  While the courts attempt to interpret statutes to avoid unjust or absurd consequences, they are not permitted to "supply a perceived deficiency under the guise of interpretation."  Cooper's Mobile Homes v. Simmons, 94 Wn.2d 321, 326, 617 P.2d 415 (1980).  While it is unclear that the lack of such standards is a "deficiency," (our interpretation reflects substantial protection to the state system), we believe the Legislature adopted aper se rule in establishing the ten-mile limitation in RCW 47.60.120, and it would be improper to graft additional factors onto the statute by way of construction.

             Orig. Op. Page 12

            The foregoing analysis does not mean that the state ferry system is powerless to act if a proposed commercial ferry service not prohibited by RCW 46.60.120 [47.60.120] would, in DOT's view, divert substantial revenue from the state system.  First, DOT can appear at any hearing on the proposed service and address the issue of whether the public convenience and necessity justifies the service.  Second, DOT can promptly "locate" a state ferry crossing within ten miles of the proposed commercial crossing and effectively "preempt" the proposed commercial crossing, since the prohibition in RCW 46.60.120 [47.60.120] would then apply.  Finally, even if DOT has not "located" such a crossing before a certificate is granted and is being exercised, it can, under RCW 47.60.020, proceed to acquire the rights granted under chapter 81.84 RCW.

            We trust that the foregoing will be of assistance to you.

Very truly yours,

DONALD T. TROTTER
Assistant Attorney General