Fight Over Detroit Bridge Pared by Federal Court

     (CN) – The U.S. and Canadian governments did not overstep their bounds by agreeing to build a bridge between the two nations, a federal judge ruled.
     The proposed span would divert traffic from the Ambassador Bridge, which connects Detroit. Mich. to Windsor, Ontario, Canada, and prevent its owners from continuing work on a bridge that would run alongside the current Ambassador Bridge.
     According to court documents, the Detroit International Bridge Co. has spent more than a decade, and over $500 million, to purchase land rights and permits in preparation of the construction of a proposed “twin” Ambassador Bridge.
     Nevertheless, the company claims the Canadian government favors a publicly-owned bridge, and purposefully excluded the option of a twin span from consideration.
     It says that allowing the U.S. and Canada to build a publicly-funded bridge “threatens to destroy the economic viability of the Ambassador Bridge, or, at a minimum, the economic viability of the New Span.”
     The complaint filed by the DIBC and the Canadian Transit Co. – who own the existing, 80-year-old bridge – was skewered by U.S. District Judge Rosemary Collyer, who dismissed seven of the company’s eight claims.
     The owners of the bridge claimed they have an “exclusive … franchise right” to operate an international span between the U.S. and Canada.
     They argued that both governments recognized this right and have violated it by pursuing construction of a separate bridge.
     Judge Collyer agreed the plaintiffs have the right to sue, but ultimately determined they failed to state a claim on which relief can be granted.
     She wrote: “Plaintiffs overplay their hand. They describe an exclusive bridge franchise with which the federal government cannot interfere in perpetuity. They fail to address the corollary: that DIBC would be bound for all time to operate the Ambassador Bridge. Such an idea is obviously not what the DIBC Act intended: it granted a time-constrained right to build (extended more than once), but it did not require DIBC to build or operate a bridge in fact.” (emphasis in original)
     The plaintiff turned to Canadian law to buttress their argument and claimed that because their agreement with the Canadian government grants exclusivity, the same “freedom from interference must exist on both sides of the border.”
     Judge Collyer rejected the argument, writing, “To be sure, Congress required Plaintiffs to obtain Canada’s consent for the bridge before it began construction. But this condition on its grant of authority did not include any agreement to be limited by Parliament’s actions in Canada. The argument fails because public grants are to be strictly construed; exclusive franchise rights cannot be implied; franchise rights in perpetuity offend U.S. sovereign authority, if not Canadian; and, in any event, exclusive franchise rights are contrary to the express terms of the DIBC Act.”
     The Detroit International Bridge Co. also claimed that the U.S. Department of State and Secretary John Kerry violated the foreign compact clause of the U.S. Constitution by making an agreement with a foreign government without the consent of Congress.
     Judge Collyer dismissed the argument and ruled that because the government acted on an “intelligible principle,” its actions were justified and legal.
     “There can be little doubt that a new bridge crossing between the U.S. and one of its immediate neighbors would affect foreign relations. How a proposed bridge between a U.S. state and Canada or Mexico might affect U.S. foreign policy is the grist of USDS’s mill,” she wrote.
     Judge Collyer also dismissed the plaintiffs’ claim for Equal Protection violations, despite their arguments that the Coast Guard and other government agencies intentionally delayed approval for the twin Ambassador Bridge.
     “The [two proposed bridges], although proximately located, are not identical projects and, therefore, pose unique issues,” she wrote. “Plaintiffs’ lay opinion that the environmental impact of the New Span ‘will be insignificant to nonexistent,’ does not support the claim that the United States Coast Guard has subjected plaintiffs to an improperly long NEPA review. Plaintiffs cannot state a claim for an equal protection violation when the results and intermediary steps of the environmental review for one bridge project do not mirror the process for another, particularly when the review was conducted by a different federal agency.”
     The only count to survive dismissal was plaintiffs’ claim that the State Department violated the Administrative Procedure Act when it entered into a crossing agreement with the Canadian government.
     The agreement sets forth the framework for building and operating the publicly-funded bridge proposed by both governments.
     The State Department argued unsuccessfully that the agreement is not subject to judicial review because “it involves ‘complex concerns regarding foreign relations, diplomacy, and national interest.'”
     The plaintiffs countered by claiming the crossing agreement violated the Administrative Procedure Act, “because it approved an agreement that was entered into in violation of Michigan law,” and Judge Collyer agreed.
     She concluded that “it is surely within the province of this Court to determine whether USDS acted in contravention of the standards set forth in [the APA] by approving an agreement that violates state law. Such a decision would not touch on foreign policy matters.”

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