Judge Rules Against Montauk Car Ferry Plan

By David Stoll

A federal judge for the Eastern District of New York has upheld East Hampton Town's ban on high speed ferries. The ruling, disappointing Montauk's Viking Fleet companies, was the second to uphold the Town's law. The same judge, Hon. Sandra J. Feuerstein, had ruled against Orient Point's Cross Sound Ferry at the end of last year in a similar case. Both rulings accepted the Township's rationale for the high-speed ban and a similar ban against ferries that can carry cars, namely to avoid worsening the area's already heavy traffic.

Viking has long offered summer service for passengers without cars between Montauk, New York and Block Island, Rhode Island. The trip takes about two hours. As configured, the new 120-foot Viking Superstar boat, with its four 600-hp engines, could make the trip in 40 minutes by running at 30 knots. During the 2006 summer season, while the lawsuit was pending, Viking agreed to operate the boat at a speed of just under 20 knots, allowing for a one-hour trip. The Superstar is authorized by the Coast Guard to carry only 150 at this time, although the actual capacity is much greater. The boat also has bunks for overnight winter fishing voyages in Florida.

The Viking Superstar does not take cars on the Block Island route, but Viking would like to offer a high-speed ferry service for passengers with cars between Montauk and New London. Cross Island Ferry, too, wants to tap that market, and sought to set up a hub in Montauk. Both companies sued the Town to overturn the bans preventing them from operating ferries with 2,000-HP or more or otherwise capable of running at speeds of higher than 20 knots, as well as ferries that can carry cars. As of now, Viking is the only ferry operator in East Hampton.

The disputes with the Town arise from laws passed in 1997 following a major transportation study in 1995. East Hampton concluded, based on the 1995 study, that allowing high-speed ferries and car ferries would "substantially worsen the already bad traffic situation." Of particular concern was increased traffic associated with potential runs between Montauk and New London, which is the gateway for the Connecticut casinos. The 1997 law prohibits high-speed ferries and car ferries from docking anywhere within the Township.

The Cross Island and Viking lawsuits put forth similar claims, although interestingly, the Cross Island suit was supported by the Towns of Suffolk and Shelter Island, both of which see traffic from South Fork drivers who are taking the Orient Point ferry to Connecticut. Given Judge Feuerstein's ruling against the Cross Island parties, last week's ruling against Viking was not unexpected.

The lawsuits pit two constitutional doctrines against one another. Under the United States Constitution, Congress is given certain powers, while all others, including most local matters such as zoning, remain with the states and localities. East Hampton argued in these lawsuits that its ferry bans represents the exercise of its classic zoning powers over traffic and related concerns, such as pollution and economic vitality.

At the same time, Congress has the power to regulate commerce between the states, and the courts have long ruled that this power contains a mirror-image ban on any state's effort to put a block on interstate commerce. At its most basic, this means that New York cannot impose tariffs against Connecticut or Rhode Island goods, nor could New York prevent people from traveling to or from other states. Cross Island and Viking argued that the Town of East Hampton is restricting interstate commerce and travel by banning high-speed and car ferries. They asserted that East Hampton's motivation was isolationist.

Judge Feuerstein, who has been a federal judge since 2003 and before that was a judge in district and state courts for 16 years, disagreed with the ferry operators in both lawsuits. She concluded that East Hampton's traffic-related justifications were appropriate, and its decision to ban certain types of ferries was a reasonable effort to prevent additional traffic and its associated negative effects. In supporting the Town's approach, she ruled that although people have the right to travel between states, they do not have a constitutional right to a particular means of travel, such as via high-speed ferry. Convenience is not part of the right to travel.

Judge Feuerstein's decision also rejected as unfounded a claim by Viking that a high-speed ferry service would help to improve traffic in East Hampton. In that regard, she pointed to the increase in traffic on the North Fork following Cross Sound Ferry's addition of high-speed service to Connecticut.

Cross Ferry has appealed the earlier decision against it. Viking's lawyer Steven Barshov, of Sive, Paget and Riesel, did not respond to a request for comment.

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