Free the "Free Rivers" doctrine.

Looking back over the past year, one a the more upsetting actions of the Supreme Court of the United States was its refusal to review a decision of the West Virginia Supreme Court of Appeals concerning West Virginia's refusal to follow the Free Rivers Doctrine. On February 18, 1997, the U.S. Supreme Court turned its back on more than 200 years of jurisprudence supporting the free use of the nation's inland waterways when it declined to grant a writ of certiorari in Hartley Marine Corp. v. Paige, 117 S. Ct. 942 (1997). At issue in Hartley Marine was the excise tax imposed by the West Virginia Department of Tax and Revenue ("Department") on the use of fuel in waterborne commerce. This case questioned whether West Virginia can impose its fuel use tax on fuel consumed by vessels, some making no stops at all in West Virginia, that use the Ohio River in interstate commerce. The Courts refusal to review the state courts decision may prompt other states bordering major inland waterways to impose impermissible taxes on interstate waterborne commerce.

Indeed, the Court's denial of certiorari may have unwelcome consequences for anyone whose livelihood is dependent on interstate waterborne commerce. Hartley Marine may result in escalated efforts by littoral states to require tribute for the heretofore Constitutional right to travel the country's waterways without state interference in the pursuit of interstate waterborne commerce.

Background

The Corporations Involved

This case involved three corporations, Hartley Marine Corp., The Ohio River Company, and Crounse Corporation, each of which was engaged in the business of transporting products in interstate and intrastate commerce by vessels on the Ohio and Mississippi Rivers.(2)

For 277 miles, the Ohio River lies partly within West Virginia and partly within Ohio. Hartley Marine Corp. was engaged in "one-point," "two-point," and "pass-through" traffic on the Ohio River where it borders West Virginia. One-point traffic occurs where either the origination or the destination of a river transport occurs within West Virginia. Two-point traffic occurs where both the origination and destination of a river transport occur in West Virginia. Pass-through traffic occurs where neither the origination nor the destination of a river transport occurs in West Virginia (i.e., where the vessel merely travels along the Ohio River without making any stops whatsoever in West Virginia).

The West Virginia Fuel Use Tax

West Virginia imposes an excise tax on the "use or consumption in this state of gasoline or special fuel purchased outside this state at the rate of five percent of the average wholesale price of such gasoline or special fuel...."(3) Every motor carrier(4) operating in West Virginia is required to pay the excise tax on all gasoline or special fuel consumed within the State.(5) Significantly, the amounts collected from the fuel use tax are deposited in the West Virginia "road fund" and are "used only for the purpose of construction, reconstruction, maintenance and repair of highways, and payment of principal and interest on state bonds issued for highway purposes."(6)

Hartley Marine Corp. paid this fuel use tax for all fuel consumed in operations on the Ohio River. The company also paid various other West Virginia taxes on its business activities in the State, including business and occupation, carrier income, corporate net income, business franchise, consumer sales and service, and ad valorem property taxes.

Federal Activities Concerning Inland Navigable Waterways

The U.S. Government has paramount responsibility for the regulation, servicing, and maintenance of the inland navigable waterways system of which the Ohio River is a part. It is the U.S. Coast Guard that documents the vessels owned by Hartley Marine Corp., which the company uses in its transportation business. It is the U.S. Army Corps of Engineers that is responsible for the planning, engineering, construction and operation of all of the locks and darn on the Ohio River System. Indeed, the Corps of Engineers even has an Ohio River Division. Furthermore, it is the U.S. Coast Guard that has jurisdiction over the seamen who are working on vessels on the inland system.

The federal government imposes a federal fuel use tax on the fuel consumed by Hartley Marine's vessels. Unlike the West Virginia tax, however, the receipts from the federal tax are used to construct improvements on the Ohio River and other navigable waterways of the inland river system. West Virginia, in levying its tax, did not permit a credit for the federal fuel use tax paid, nor did the State's use of the tax receipts bear any relationship to Hartley Marine's use of the river.

The free Rivers Doctrine

During the 13-year period from 1776 to 1789, the United States of America was governed by the Articles of Confederation and by other enactments, including the Northwest Ordinance of 1787. The Northwest Ordinance established the doctrine (the "Free Rivers Doctrine") that interstate commerce along rivers (the principal means of interstate commerce at that time) shall be "forever free."(7)

On March 4, 1789, our Government commenced operations under the Constitution. Despite the adoption of the Constitution, the Northwest Ordinance was (and still is) in effect with respect to interstate commerce.

Two hundred years of jurisprudence have continued the Free Rivers Doctrine. When the Constitution was adopted, the Free Rivers Doctrine was one of the reasons for the inclusion of the Duty of Tonnage Clause. When the Virginia Compact was enacted on December 18, 1789, the Free Rivers Doctrine was embodied in the provision that the use of the Ohio River would be "free."(8) The Virginia Compact, like the Northwest Ordinance, is still in effect.

In Gibbons v. Ogden, 22 U.S. 1 (1824), the U.S. Supreme Court expanded the Free Rivers Doctrine by striking down a New York statute that excluded federally licensed boats from operating in New York waters. Congress expressly set forth the Free Rivers Doctrine when it enacted the Rivers and Harbors Appropriation Act of 1884 (now 33 U.S.C. [sections] 5), which prohibits the imposition of any "tolls and operating charges whatsoever" on the Ohio River and other waterways. In Helson v. Kentucky, 279 U.S. 245 (1929), the Court applied the Free Rivers Doctrine when it held that the imposition of a fuel use tax on the portion of fuel consumed in Kentucky by an interstate ferry was an unconstitutional burden on interstate commerce. The Free Rivers Doctrine continues to this day.

Apparently, however, this is not true in West Virginia. Relying on one of its own decisions, the Supreme Court of Appeals of West Virginia decided that the Free Rivers Doctrine does not apply in West Virginia.(9) It summarily rejected the continued validity of the Northwest Ordinance and the Virginia Compact, it ignored or misinterpreted more than 200 years of Duty of Tonnage Clause, Supremacy Clause and Commerce Clause jurisprudence, and it declared that interstate river traffic is fair game for the State's tax collector.

The West Virginia Tax Is Invalid Under The Free Rivers Doctrine

The significance of the U.S. Supreme Court's refusal to review the West Virginia tax cannot be overstated. Every year hundreds of millions of tons of waterborne commerce move on the U.S. inland waterway system, of which the Ohio River is a part. Because West Virginia was ultimately permitted to impose a tax on the fuel consumed by vessels that navigate the Ohio River, including vessels that making no stops at all in West Virginia, and to dedicate this tax to the State's highways, it is possible that other states, as well as municipalities, that border interstate navigable waterways (the inland waterways as well as the coastal waterways) may enact laws imposing similar taxes. These taxes, which would directly contravene more than 200 years of jurisprudence providing that interstate commerce along the nation's navigable waterways shall be free, will burden all vessels and all customers who ship products.

Despite the Court's unwillingness to review the West Virginia tax, there are numerous independent reasons for finding that the West Virginia tax is invalid under the Free Rivers Doctrine. These include that the tax violates the Northwest Ordinance and the Virginia Compact, as well as the Duty of Tonnage, Supremacy and Commerce Clauses of the U.S. Constitution.

The Northwest Ordinance of 1787 and the Virginia Compact of 1789

Congress passed the Northwest Ordinance in 1787. Almost immediately after the Federal Constitution was ratified, Congress reenacted the Northwest Ordinance, in all parts relevant here, on August 7, 1789. Economy Light & Power Co. v. United States, 256 U.S. 113, 119 (1921) (stating that "[t]he first Congress under the new Constitution expressed a desire to have [the Northwest Ordinance] continue in full effect, in the Act of August 7, 1789.") (citation omitted). The Virginia Compact was enacted by the General Assembly of Virginia on December 18, 1789. The Virginia Compact, by the sanction of Congress, became a law of the Union. Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518, 566 (1851).

The Supreme Court of Appeals of West Virginia, however, apparently sew things differently. Relying on one of its own decisions, the court concluded that West Virgin into statehood "necessarily" resulted in each of these Compacts being superseded by the U.S. Constitution (citing American Barge Line Co. v. Koontz, 68 S.E. 56, 61-62 (W. Va. 1951), overruled on other grounds by Western Maryland Railway Co. v. Goodwin, 282 S.E.2d 240 (W. Va. 1981), appeal dismissed, 456 U.S. 952 (1982)). This conclusion, however, ignores U.S. Supreme Court precedent and the decisions of the highest courts of two sister states providing that the Northwest Ordinance and the Virginia Compact are valid federal laws.

For instance, in Economy Light & Power Col. v. United States, 256 U.S. 113 (1921), the Supreme Court found that while the Northwest Ordinance was superseded by statehood with respect to a state's internal affairs, that "so far as it established public rights of highway in navigable waters capable of bearing commerce from state to state, it did not regulate internal affairs alone, and was no more capable of repeal by one of the states than any other regulation of interstate commerce enacted by the Congress." 256 U.S. at 120-21 (emphasis added) (citations omitted). Thus, under Economy Light, although the act of Congress in admitting a state was sufficient to supersede provisions of the Northwest Ordinance pertaining to the state's internal affairs, where interstate commerce is involved, the Northwest Ordinance remain in full force to pre-empt improper state actions, such as the taxation of navigation on interstate waterways.

Moreover, the US. Supreme Court's decision in Wedding v. Meyler, 192 U.S. 573 (1904), demonstrates that the Virginia Compact is also valid and binding upon the states. The issue in that case was whether an Indiana judgment was entitled to full faith and credit, and the answer was dependent upon whether service of a summons was valid when it was made on a steamboat in the Ohio River. The Court, through Justice Holmes, held that Indiana had jurisdiction to serve process below the low-water mark on the Ohio River (i.e., within the boundaries of Kentucky) because the Virginia Compact provides both states with concurrent jurisdiction and, therefore, the Indiana judgment was entitled to full faith and credit. Had this concurrent jurisdiction derived from the Virginia Compact not been present, service of the summon would have been invalid.

In Pennsylvania v. Wheeling & Belmont Bridge Co., 54 U.S. 518 (1851), a suit was brought against a bridge construction company concerning the construction of a bridge in what was then western Virginia (now West Virginia) across the Ohio River. The company defended the construction of the bridge by asserting that it had received authorization for the construction by Virginia and that there was no Act of Congress prohibiting obstructions on the Ohio River The Supreme Court rejected that argument, and later described its holding by stating that while "there had been no Act of Congress explicitly regulating navigation on the river ... the prohibition in the [Virginia] Compact was controlling because `[t]his compact, by the sanction of Congress, has become a law of the Union. What further legislation can be desired for judicial action?'" Cuyler v. Adams, 449 U.S. 433, 439 n.7 (1981) (emphasis added) (citations omitted).

Thus, in both Wedding and Wheeling & Belmont Bridge Co. the U.S. Supreme Court relied upon the Virginia Compact for its holdings. Furthermore, unlike the West Virginia courts, the decisions of the highest courts of two sister states have upheld the validity of the Virginia Compact. Benham v. Indiana, 637 N.E.2d 133 (Ind. 1994) (authorizing Indiana, under the Virginia Compact and the Indiana Constitution, to exercise concurrent jurisdiction with the State of Kentucky over the Ohio River, including that portion beyond Indiana's territorial boundaries); and Allphin v. Ohio River Co., 306 S.W.2d 94 (Ky. 1957) (holding that a tax imposed by reason of the operation of a barge line on the Ohio River was invalid based upon the Virginia Compact and the Kentucky Constitution).

Therefore, the provisions contained in the Northwest Ordinance and the Virginia Compact declaring the status of navigable waterways such as the Ohio River as common highways, forever free, remain valid and effective today. The effect of the West Virginia fuel use tax on Hartley Marine's operations is to impose a toll or charge for the navigation of the free highways of commerce maintained by the federal government. The tax is not a charge for any service provided by West Virginia and cannot be justified under such a rationale. The tax therefore violates both the Northwest Ordinance and the Virginia Compact, both of which are part of the Free Rivers Doctrine.

The Duty of Tonnage Clause

West Virginia's ruling renders the Duty of Tonnage Clause (art. I, [sections] 10, cl. 3) of the U.S. Constitution a practical nullity. The Duty of Tonnage Clause prohibits a state, without the consent of Congress, from imposing a charge or duty for the privilege of entering, trading in, or lying in a port, harbor or waterway.

Not all charges on vessels, however, are prohibited by the Duty of Tonnage Clause. The prohibition against duties of tonnage does not extend to charges made by a state as a reasonable compensation for services rendered to and enjoyed by a vessel. Thus, a state is not prohibited from imposing a reasonable charge for services such as pilotage and wharfage, charges for loading or unloading cargoes, and charges for similar services provided by a state to a vessel. E.g., Clyde Mallory Lines v. Alabama, 296 U.S. 261, 265-66 (1935); Huse v. Glover, 119 U.S. 543 (1886).

When, as in West Virginia's case, a state attempts to impose on a vessel a charge that is not related to any service provided by the state to the vessel but instead is levied upon the vessel based upon its weight or a proxy for its weight (such as fuel consumption), such a charge, without the consent of Congress, violates the Duty of Tonnage Clause and is void. E.g., Inman S.S. Co. v. Tinker, 94 U.S. 238 (1876); Cannon v. New Orleans, 87 U.S. 577 (1874); State Tonnage Tax Cases, 79 U.S. 204 (1870); Indiana Port Comm'n v. Bethlehem Steel Corp., 653 F. Supp. 604 (N.D. Ind.), and on other grounds, 835 F.2d 1207 (7th Cir. 1987). This prohibition applies to vessels engaged in intrastate commerce as well as vessels engaged in interstate commerce. State Tonnage Tax Cases, supra.

That a tax is not directly measured by the tonnage of a vessel or that it is denominated otherwise is irrelevant in determining whether the imposition violates the Duty of Tonnage Clause. As the Supreme Court stated in Clyde Mallory Lines, "the prohibition against tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel." 296 U.S. at 265-66 (citations omitted). Relying upon this precedent, the Rhode Island Supreme Court recently held that a registration fee levied upon vessels operating on that State's waters in excess of 90 days is an unconstitutional duty of tonnage. In State v. Turnbaugh, No. 95--625--C.A. (R.I. Jan. 13, 1998), Rhode Island's highest court concluded that the registration fee was unconstitutional, even though it was not based upon the tonnage of the vessel (but rather its length), because it did not directly relate to "services rendered to and enjoyed by the vessel." Turnbaugh (citing Clyde Mallory Lines, 296 U.S. at 266-67). The court reached this conclusion because the use of the funds was ultimately subject to the discretion of the legislature as a general revenue measure.

The West Virginia fuel use tax imposes a charge for the use of the Ohio River as it borders West Virginia based upon the amount of fuel used and consumed by vessels. Vessels have no choice but to pay the tax or discontinue their use of the Ohio River. Therefore, the tax operates (as did the Rhode Island fee) as a duty of tonnage.

Moreover, the West Virginia tax bears no relationship to any service provided to vessels by West Virginia. Indeed, since the tax is dedicated exclusively to the West Virginia highways, none of the tax is used to provide any service whatsoever to vessels. By burdening a necessity of the voyage (i.e., fuel consumption), West Virginia has erected an economic barrier to the movement of cargo on the navigable waters of the Ohio River.

If the prohibition in the Duty of Tonnage Clause could be avoided by simply shifting the tax from the vessel itself (i.e., measured by actual tonnage) to the fuel used to propel the vessel, which propulsion is required in the process of river navigation, then the Duty of Tonnage Clause would be a practical nullity.

That the West Virginia tax is imposed on all motor carriers, including buses, trucks, trains, and aircraft(10) is irrelevant in determining that the imposition of the tax on vessels for plying West Virginia's navigable waterways violates the Duty of Tonnage Clause. By permitting a state to circumvent the Duty of Tonnage Clause by merely imposing the tax on other entities that are not protected by the Duty of Tonnage Clause renders it ineffectual.

Finally, that the West Virginia tax is imposed on the consumption of fuel while plying the waterways, rather than for access to ports, is insignificant. There is no practical difference between restricting access to ports and access to navigable waters. If the states can avoid the constitutional prohibition against charging for access to a port or harbor by charging for traversing or transiting the navigable waters leading to such port or harbor, then the national policy aimed at protecting free access to facilities such as navigable rivers and ports along such rivers that make commerce among the states possible becomes ineffective.

The Supremacy Clause

Nearly 100 years after the Northwest Ordinance, the Virginia Compact, and the Duty of Tonnage Clause established that the Ohio River and other waterways were to be free, Congress expressly reaffirmed the Free Rivers Doctrine by enacting the Rivers and Harbors Appropriation Act of 1884.

That federal statute, which is currently codified at 33 U.S.C. [sections] 5,(11) expressly forbids the imposition of "tolls or operating charges whatever" on vessels for passing through any canalized river for the use or benefit of navigation. Therefore, since 1884 (when the predecessor of 33 U.S.C. [sections] 5 was first enacted by Congress), a federal law has expressly prohibited states from levying or collecting any toll or operating charge on a vessel for passing through any canalized river.(12) Inasmuch as the West Virginia tax is prohibited by a federal statute, the tax violates the Supremacy Clause of the U.S. Constitution.(13)

Despite the West Virginia court's conclusion to the contrary, the West Virginia tax constitutes an operating charge for the use of the Ohio River and therefore is expressly preempted by 33 U.S.C. [sections] 5. Hartley Marines vessels are propelled along the Ohio River by the burning of fuel. There is no other commercially feasible means of operating these vessels. Since the West Virginia tax is imposed on the consumption of a vessers fuel, and fuel consumption is a necessary prerequisite for the vessers navigation of the Ohio River, the tax constitutes an impermissible charge for the operation of vessels for passing through the Ohio River. Moreover, calling the West Virginia tax a use tax on fixel, rather than an operating charge, cannot mask the fact that the effect of the tax is to impose a prohibited operating charge on vessels for passing through the Ohio River.

The Commerce Clause

West Virginia's imposition of a tax on fuel consumed by vessels plying the Ohio River and other interstate navigable waterways also violates the Commerce Clause. In Helson v. Kentucky, 279 U.S. 245 (1929), a case "on all fours" with Hartley Marine's case, Kentucky attempted to impose an excise tax on the fuel consumed in the state by an interstate ferry traveling along the Ohio River between Minois and Kentucky The fuel use tax was invalidated since "[t]he tax is exacted as the price of the privilege of using an instrumentality of interstate commerce." 279 U.S. at 252. That the tax was imposed upon the use of the fuel did not alter this conclusion:

And is not the fuel consumed in propelling the

boat an instrumentality of commerce no less than

the boat itself? A tax which falls directly upon the

use of one of the mean by which commerce is

carried on directly burdens that commerce.

279 U.S. at 252.

The principles of Helson were reaffirmed in United Air Lines, Inc. v. Mahin, 410 U.S. 623 (1973). The issue in United Air Lines was whether Illinois's imposition of a use tax on fuel stored in Illinois and loaded aboard aircraft for in-flight consumption violated the Commerce Clause. The Supreme Court, while upholding the tax, stated that "fuel cannot be taxed ... by the State in which it is merely consumed, under Helson." 410 U.S. at 630. Thus, "[u]nder Helson, States over which the planes fly will be unable to impose a tax on mere consumption." 410 U.S. at 631 (footnote omitted).

The West Virginia fuel use tax is applicable to all traffic on the Ohio River and other interstate navigable waterways, even though the traffic may be totally interstate in character. It is a prohibited tax on the "mere consumption" of fuel in interstate commerce and therefore is an undue burden on interstate commerce in violation of the Commerce Clause.

In addition to violating the Commerce Clause principles articulated by the Court in Helson more than half a century ago, the West Virginia tax also violates the Commerce Clause test articulated in Complete Auto Transit, Inc. v. Brady, 430 U.S. 274 (1977), for determining the validity of a tax. The fourth prong of this test provides that a tax violates the Commerce Clause if it is not fairly related to the services provided by the state. Complete Auto, 430 U.S. at 279. The analysis applied in determining whether such a violation occurs depends upon whether the exaction is a general revenue tax or is a user fee or tax. See Commonwealth Edison Co. v. Montana, 453 U.S. 609, 62 122 (1981). Despite noting the Court's distinction in Commonwealth Edison between user fees and general revenue taxes, the Supreme Court of Appeals of West Virginia erroneously failed to follow this principle and declined to characterize the West Virginia tax as either a user fee or a general revenue tax. The court, relying on a footnote in one of its other decisions, stated that the "form of tax is inconsequential to questions of nexus and state benefits...."(14) The court then analyzed the West Virginia fuel use tax under the principles stated in Commonwealth Edison for general revenue taxes.

The West Virginia tax is not a general revenue tax. The amounts collected do not go into the State's treasury for the general support of government. The funds are dedicated exclusively to the West Virginia "road fund" and may be used only for highway purposes. The fuel use tax is entirely different from the severance tax considered in Commonwealth Edison, where a portion of the tax was immediately used for the general support of government and the remainder was put into a trust fund for the general support of government in the future. Commonwealth Edison, 453 U.S. at 621 & n. 11. See also Reidy Terminal, Inc. v. Director of Revenue, 898 S.W.2d 540 (Mo. 1995) (Missouri statute imposing a charge for receiving petroleum products in Missouri constituted an invalid fee under the Commerce Clause because the funds received were dedicated to an underground storage tank insurance fund and the corporation subject to the fee was ineligible to receive benefits from the find).

Because the funds received from the West Virginia tax are dedicated exclusively to the State's highways, the exaction is a specific charge for the use of state-owned or state-provided facilities (i.e., the West Virginia highways) and thus constitutes a user fee or tax. A levy that constitutes a user fee or tax satisfies the Commerce Clause only if it: "(1) is based on some fair approximation of use of the facilities, (2) is not excessive in relation to the benefits conferred, and (3) does not discriminate against interstate commerce." Northwest Airlines, Inc. v. County of Kent, Michigan, 510 U.S. 355, 369 (1994) (citing Evansville-Vanderburgh Airport Auth. Dist. v. Delta Airlines, Inc., 405 U.S. 707, 716-17 (1972)).

The West Virginia tax is not based on a fair approximation of Hartley Marine's use of the West Virginia highways. The company's vessels do not use the West Virginia highways. Its vessels utilize the navigable waterways -- the regulation, servicing, and maintenance of which are within the jurisdiction of the federal government. Thus, the West Virginia fuel use tax is invalid. Hartley Marine's receipt of some incidental benefit from the West Virginia highways on which goods and employees may be transported to and from its vessels does not validate the tax -- any trucks transporting goods on West Virginia highways pay the West Virginia fuel use tax for fuel consumed for their own use.

The West Virginia fuel use tax thus violates the Commerce Clause under the principles articulated more than 50 years ago in Relson v. Kentucky (and reaffirmed in United Air Lines), and explicated in Complete Auto, Commonwealth Edison, and Northwest Airlines.

Conclusion

In declining to review the West Virginia court's decision in Hartley Marine, the U.S. Supreme Court ignored more that 200 years of precedent supporting the free use of our nation's inland waterways. As a result, West Virginia -- under the guise of a "fuel use tax" -- is free to continue levying a tax on the privilege of engaging in interstate commerce in direct contravention of the Free Rivers Doctrine. Thus, the Court may have opened the floodgates for other states and municipalities that border a navigable waterway to circumvent bedrock principles of our federal system. If another jurisdiction does attempt to impose such a tax, it will likely be challenged and, if the tax is not invalidated in the state courts, the U.S. Supreme Court will probably then decide to review the tax and find it invalid as violating the Free Rivers Doctrine.

(1) Paul H. Frankel, Craig B. Fields, Hollis L. Hyans, and Michael A. Pearl of Morrison & Foerster LLP, New York, New Yorks and G. Thomas Battle of Spilman, Thomas & Battle, Charleston, West Virginia, were co-counsel on the Petition for a Writ of Certiorari that was filed with the Supreme Court of the United States on behalf of Hartley Marine Corp., The Ohio River Company, and Crounse Corporation. The authors gratefully acknowledge the insightful analysis and thoughts found in the briefs amici curiae filed by Tax Executives Institute, Inc. (Timothy J. McCormally and Mary L. Fahey), Committee On State Taxation (Kendall L. Houghton, William D. Peltz, and Gerald J. Morris), American Waterways Operators, Inc. (Richard D. Pomp and Michael J. McIntyre), and National Mining Association (Harold P. Quinn, Jr.). The authors also acknowledge the foresight of the following individuals in challenging West Virginia's improper tax and the invaluable assistance they provided in the preparation of the Petition for Certiorari that was filed with the Court: Peter J. Feichtner, III of Midland Enterprises, Inc., Steven D. Little of Crounse Corporation, and Thomas J. Schmidt, Jr. of The Ohio River Company.

(2) Although three separate corporations were involved, inasmuch as the relevant facts were the same for each company, the remainder of this article refers only to Hartley Marine Corp.

(3) W. Va. Code [sections] 1115A13(02) (1996). Special fuel is defined to include diesel fuel. W. Va. Code [sections] 111518(c)(4) (1996).

(4) A motor carrier includes barges and watercraft. W. Va. Code 111518(c)(6) (1996).

(5.) Va. Code [sections] 1115A13(d) (1996).

(6.) Va. Code [sections] 1115A13(g) (1996).

(7) The Northwest Ordinance of 1787, Articles of Compact, art. IV (reenacted in 1789), provides in relevant part:

The navigable waters leading into the Mississippi and

Saint Lawrence, and the carrying places between the same,

shall be common highways, and forever free, as well to the

inhabitants of the said territory as to the citizens of the United

States, and those of any other States that may be admitted

into the confederacy, without any tax, impost, or duty therefor.

U.S.C.A Const. Art. 1: The Organic Laws of The United States 17, 22 (emphasis added).

(8) The Virginia Compact of 1789, [sections] 11, provides in relevant part:

[T]hat the use and navigation of the river Ohio, so far as the

territory of the proposed state, or the territory which shall

remain within the limits of this Commonwealth lies thereon,

shall be five and common to the citizens of the United States,

and the respective jurisdictions of this Commonwealth and of

the proposed state on the river as aforesaid shall be concurrent

only with the states which may possess the opposite

shores of the said river.

13 Henning's Statutes at Large c.14 (emphasis added).

(9) Hartley Marine Corp. v. Mierke, 474 S.E.2d 599 (W. Va. 1996).

(10) W. Va. Code [sections] 111518(c)(6) (1996).

(11) Act July 5, 1884, c. 229, [sections] 4, 23 Stat. 147, codified at 33 U.S.C. [sections] 5.

(12) The Ohio River is a canalized river "for the use and benefit of navigation" by virtue of the locks and dam constructed thereon I and maintained by the U.S. Government.

(13) The Supremacy Clause of the U.S. Constitution, U.S. Const., art. VI, cl. 2, provides:

This Constitution, and the Laws of the United States which

shall be made in Pursuance thereof, and all Treaties made, or

which shall be made, under the Authority of the United States,

shall be the supreme Law of the Land; and the Judges in every

State shall be bound thereby, any Thing in the Constitution or

Laws of any State to the Contrary notwithstanding.

(14) Hartley Marine Corp., 474 S.E.2d at 608 n.13 (citing Western Maryland Railway Co. v. Goodwin, 282 S.E.2d 240, 253 n.3 (W. Va. 1981), appeal dismissed, 456 U.S. 952 (1982)).

Paul H. Frankel, Craig B. Fields and Eliot S. Frank are with the New York office of Morrison & Foerster New York office of Morrison & Foerter LLP.