Graham Flint trains his specialized 4,000 megapixel camera and lenses on Skagway from the top of Mount Harding during the last big week of the summer visitor season in September. See story in features below.
Photo courtesy of Shay Dolberry, TEMSCO Helicopters
Supreme Court reverses overbroad ruling
City hawking ordinance regulating off-premises canvassing now legal
By JEFF BRADY
The Alaska Supreme Court on Sept. 22 ruled that the City of Skagways 2003 ordinance regulating off-premises canvassing was not overbroad in its restriction of commercial speech.
This reverses a 2004 Superior Court ruling in favor of Terry Robertson of Skaguay Tour Co. and David Lee of Southeast Tours that the ordinance could restrict protected speech like the selling of newspapers and bibles. The city appealed the ruling and the two parties argued the case before the Alaska Supreme Court on March 17, 2006. Because of its constitutionality and free speech issues, the court heard arguments in a special session before a Juneau-Douglas High School assembly that was televised on public television.
It took six months for the court to rule and publish its opinion in the matter.
At the Sept. 28 Skagway City Council meeting, Mayor Tim Bourcy announced that the court had ruled that the hawking ordinance was not overbroad and said City Attorney Bob Blasco thanked members for their perseverance. It looks like we will be awarded some attorney fees, about $1,000.
The 15-page ruling can be found under the opinion slips link at www.state.ak.us/courts. It is Opinion 6046.
In its introduction, the Supreme Court justices stated:
In May 2003 the City of Skagway adopted a municipal ordinance directed solely to the regulation of the time, place, and manner of certain limited forms of commercial speech. In order to curb the proliferation of aggressive sales tactics aimed at pedestrians and tourists and to preserve the historic character of the town, the ordinance confines person-to-person solicitation activities within the historic district of Skagway to enclosed structures or to areas containing at least 200 square feet of vending space. Appellants Terry Robertson and David Lee, operators of tour companies in Skagway which utilize off-premises solicitation, challenged the ordinance in the superior court as unconstitutional. The superior court determined that, although the ordinance was an appropriate way to restrict commercial speech, its sweep is so broad that it impermissibly affects protected speech as well. Because we believe that the ordinance can be construed in a manner which limits its application to commercial speech, we reverse.
Robertson employed an outcry selling strategy from his locations near sidewalks, and Lee rented selling space along Broadway, but did not characterize his business as off-premises canvassing.
Superior Court Judge Larry Zervos on July 4, 2004 ruled that the city seems intent on regulating far more than outcry tour sales. And he urged the city to redraft the ordinance. Crafting appropriate exceptions will take careful drafting, balancing of interests and selection of appropriate methods.
The city disagreed and filed a motion of reconsideration, which was denied by Zervos, and then appealed to the state Supreme Court. The city argued that the ordinance was limited to only commercial speech as defined by the United States Supreme Court, and claims that the superior court essentially redrafted the ordinance, ignoring the plain meaning of the statute, and then reached the conclusion that the statute was overly broad based on its own erroneous interpretation.
In urging the Supreme Court to uphold the lower court decision Robertson and Lee argued that the ordinance does not satisfy the Central Hudson test, a case adopted by the court in which it asks four questions: (1) whether the regulated commercial expression qualifies as commercial speech in that it concern[s] lawful activity and is not misleading; (2) whether the governmental interest is substantial; (3) if so, whether the regulation directly advances the government interest asserted; and (4) whether it is not more extensive than necessary to serve that interest. The tour sellers also argued that the ordinance violates the due process and equal protection clauses of the constitution and is void for vagueness.
But the Supreme Court ruled that the purposes section of the ordinance was specific in its language directed solely to the regulation of ... certain limited forms of commercial speech and no more. It disagreed with the Superior Court, which honed in on another part of the ordinance that defined business as any commercial activity in which any goods, services, tours or edibles are sold or offered for sale. While the Superior Court said this could apply beyond tours and tacos to protected expressive items like newspapers, bibles, books and art, the Supreme Court said the off-premises canvassing business definitions can only be applied in this case. OPC, as it is called, is defined in the ordinance as person-to-person efforts solely intended to interest pedestrians in or solicit the participation of pedestrians in commercial transactions for private profit with a business, except when done in an enclosed structure.
The Supreme Court sided with the city that the ordinance regulates a type of behavior and not the sale of anything on public streets and sidewalks. It further stated that expressive items are therefore outside the scope of this ordinance, which is limited solely to commercial speech.
The Supreme Court also dismissed other claims by Robertson and Lee, saying previous dismissals and settlements with the city in the case had limited their rights to further claims beyond the overbreadth issue. The court said the parties could re-file those claims in superior court but they are not presently ripe for resolution. Because Lee and Robertson did not prevail in the overbreadth appeal, they also were not entitled to any attorneys fees, the court stated.
Robertson reached a $70,000 settlement with the city in October 2004 over business lost in 2003 when the ordinance was enforced for a short time before the court challenge. In that settlement, he agreed to dismiss all other claims other than the overbreadth issue before the Supreme Court.
Robertson said this week that he had read the state Supreme Court ruling but had not had a chance to talk to his attorney, Robert Spitzfaden, and could not comment further until making an evaluation.
Lee had won $11,574 from a Juneau jury in 2004 resulting from an earlier case in which the citys initial attempt to restrict tour selling within 10 feet of a street or sidewalk failed a 2002 court test. After the city came back with the new OPC ordinance in May 2003, Lee challenged again.
Lee, who is out of town for the winter, did not return calls for comment by this issues deadline.
City Council will discuss the latest ruling and what it means at a future meeting after City Manager Bob Ward returns from vacation Oct. 16.
Sen. Albert Kookesh (left foreground) makes point as Rep. Bill Thomas (left) and about 15 Skagway residents listen during an Oct. 7 constituent meeting at A.B. Hall. Jeff Brady
Winter ferry service approaches new low
Taylor: Budget, breakdowns to blame; legislators want to pull system from DOT, have authority run it
By JEFF BRADY
A ferry schedule reduction to two or three trips a week to Skagway in November-December and the possibility of just one a week in January has elicited a chorus of colorful adjectives from users, politicians and even administrators.
Bleak, said Skagway City Councilmember Mike Korsmo, upon returning from Southeast Conference in Ketchikan at the end of September.
Disgusting, said Rep. Bill Thomas and Sen. Albert Kookesh during a constituent meeting in Skagway last weekend.
Crappy, said Robin Taylor, the DOT deputy commissioner for marine highways. And he is fielding the brunt of the criticism.
So, why the reduction in service, especially after it was so good last winter?
In a phone interview this week, Taylor said it comes down to there not being enough money to keep all the boats on the water even when they arent broken down.
Before the crack in one of the Fairweathers engines, before the Columbias generator malfunctioned, and before the delay in the LeContes return to service, other boats were being tied up and the schedule had been reduced systemwide.
Taylor said he has a proposal on the commissioners desk for more service, but it may take a legislative appropriation in the new year to make it happen.
Last winter, the Legislature gave him $30 million in supplemental funds to keep every boat on the water, and he was also able to cut fares and offer discounts that boosted winter ridership by 45 percent, and increased overall system revenues by 11 percent.
The Legislature then boosted his budget some more in May, but since then, fuel and labor costs have soared, leaving the system with less money to operate this winter, he said.
In addition to higher fuel prices, a new labor contract with 22 percent pay increases went into effect, but the biggest hit was a 15 percent bump in the Public Employees Retirement System budget. The same PERS liability that is being heaped on communities and school districts.
Taylor said he was told by the Murkowski administration to operate that system within that budget. And the only way to do that was to tie boats up for the winter.
Looking at a January model with two ferries going into Sitka and one to Skagway a week, Taylor called it unacceptable. His proposal, which is before DOT Commissioner Mike Barton, would bring the fast ferry Fairweather back to service Haines-Skagway three times a week and make one more trip to Sitka.
I consider that a bare minimum of service, but I am not authorized to proceed with that, Taylor said.
The cost of that proposal, depending on fuel, would be $2 million to $2.5 million, requiring a much smaller supplemental appropriation than last year.
Under the current schedule, Haines will have slightly better service with the LeConte due to make runs north upon its return in mid-to-late November, but it will not head to Skagway because of a 12-hour crew law. The vessel sits in Haines for two hours, so why couldnt it come up to Skagway first and stop in Haines on the way back?
Taylor said that when factoring in an hour to start and load the boat in Juneau, and another hour to off-load and shut it down, there was not enough time to fit a quick stop in Skagway. If the boat could go a couple knots faster, it could make it, he said.
He said the Fairweather would provide better service, even though there are times when extreme winds keep it tied up. Despite having a crack in one of its four engines, the Fairweather was given permission by the Coast Guard to operate until Nov. 5. Taylor would like to turn it around quickly in the yard and have it back in early December.
But he said the ultimate solution road or no road for better transportation in Lynn Canal is a new shuttle ferry.
A contract for Elliott Bay Marine to design a 50-60 vehicle vessel is being signed this week, Taylor said. Preferably, it would be a closed drive-on, drive off ferry, about twice the size of the LeConte, he said. Estimated construction cost is $50 million, and Taylor said he would like to have a design ready for public bidding in a couple months, and the boat in service by the winter of 2008.
It would be based in Haines and provide service between Skagway and Haines, he noted, and then another ferry, most likely the Malaspina, would operate twice a day between Auke Bay and Haines for connections to the capital.
Youd have the kind of service youve never had before, he said. That system works whether a road is ever built and it would provide relief and better service into those communities within two years. Until then, we have to struggle with the equipment that we have..
Taylor said last winters success showed that more revenue can be the result of more service. He also cited the Lituya shuttle ferry which runs full between Metlakatla and Ketchikan
Think what the numbers would be if Skagway had two round-trips a day, can you imagine the volume wed be moving...
Bottom line, we need to get dedicated vessels into Lynn Canal that you can set your watch by. The only way to do it is to buy a boat that can make that run.
Thats the same tune Skagway city officials have been singing. Korsmo said he tried to drive that point home in brief discussions with gubernatorial candidates Tony Knowles and Sarah Palin in Ketchikan.
This winter, the way our service is looking, transportation is our top priority, he said. We need consistent service now.
Transportation will top the citys wish list for the new governor.
And district legislators received an earful when they were here over the weekend.
Sen. Kookesh said the ferry systems problems are felt all over Southeast. His home of Angoon hasnt seen a ferry in a month, just an open barge under contract that takes cars with people in them to Juneau.
Rep. Thomas said he could not get a straight answer from DOT officials in a recent budget meeting.
Both legislators said the problems have reached the point where they feel the only solution is to pull the marine highway out of DOT and have the Marine Transportation Advisory Board be put in charge, much like the board that runs the Alaska Railroad.
An Upper Lynn Canal Ferry Authority also was suggested.
When Murkowski and Taylor were saying how bad the fast ferries were and wanted to get rid of them, I said give them to Haines and Skagway and Prince William Sound. Kookesh said. For a buck.
Several in the audience said theyd kick in a dollar.
Fourth straight record year for WP&YR
Just after the last cruise ship of the season sailed south on Sept. 26, the White Pass & Yukon announced it ended the 2006 campaign with a new annual ridership record of 431,249 revenue passengers breaking last years record of 430,037.
Gary C. Danielson, president of the WP&YR stated in a press release that, The team at White Pass achieved its fourth consecutive annual historic milestone by delivering on our goal of making a difference. This feat was achieved despite fewer cruise ship dockings than the previous year; an avalanche that caused two days of interrupted service and three ship cancellations due to mechanical difficulties.
Im proud of the cumulative efforts of our employees to innovate, adapt and respond this accomplishment defied a particularly challenging year!
The seasons last cruise visitors head back to the Zuiderdam. JB
Steam locomotive No. 69 entered service late in the season. No. 69 is a Baldwin 2-8-0 and was originally built for the White Pass in 1907. It will complement No. 73 in scheduled service and in an enhanced steam charter program for 2007.
Danielson added, The investment in the extension to the Broadway dock enabled White Pass to accept the new, longer ships like the Holland America Lines Zuiderdam this year. For 2007, the Broadway dock will cater to larger ships from Norwegian Cruise Line as well.
The forecast for 2007 calls for an increase in cruise capacity into the Alaskan market. The WP&YR has already announced the return of scheduled service to Carcross, Yukon for 2007. The railroad will be investing in five new passenger coaches and the restoration of five wooden coaches this winter to meet the demands of the Carcross program.
As of press time, the cause of the train derailment near Bennett on Sept. 3 that resulted in three injuries and one death had not been released.
Nobody has concluded anything yet, said John Cottreau, spokesman for the Transportation Safety Board of Canada. Currently they are testing the rail cars and equipment, interviewing those on the railway at the time of the accident and gathering information.
Investigators collecting data serves as the first part of a three step process. Once they have all the pertinent information, they make an analysis and present it to the NSBC. After viewing the presentation and reviewing the analysis, board members draw conclusions.
No fixed date is set for when a conclusion can be made. They will take the time they need to conduct a thorough investigation, said Cottreau.
PHOTO OF THE WEEK
Mickey Wilson (right) chases two Haines runners early in the regional cross country race in Juneau. The Skagway freshman placed third and qualified for the state meet, along with classmates Emily Herbig and Amanda Jensen. See story in features. Becky Jensen photo
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