Bridge lawyer: 2nd span ‘mad­ness’

Am­bas­sador own­ers want court to block gov­ern­ment’s bridge

The Detroit News - - Front Page - BY MELISSA NANN BURKE Detroit News Wash­ing­ton Bureau

Wash­ing­ton — An at­tor­ney for own­ers of the Am­bas­sador Bridge on Thurs­day told a fed­eral ap­pel­late court that it would be “eco­nomic mad­ness” for the com­pany to con­struct a sec­ond span if a com­pet­ing gov­ern­ment-owned bridge be­tween Detroit and Canada is built as planned.

That’s be­cause the ri­val span is pro­jected to take away as much as 75 per­cent of com­mer­cial toll rev­enue from the Am­bas­sador Bridge, which has al­ready seen de­clin­ing traf­fic lev­els.

The Detroit In­ter­na­tional Bridge Co. ar­gued be­fore the U.S. Court of Ap­peals for the District of Columbia Cir­cuit in its lat­est at­tempt to block con­struc­tion of a pub­licly owned ri­val span con­nect­ing Detroit and Wind­sor.

The ar­gu­ments be­fore a three­judge panel came about a week af­ter the Cana­dian gov­ern­ment said it had is­sued a key per­mit to a sub­sidiary of the Detroit In­ter­na­tional Bridge Co. to build a re­place­ment, six-lane span along­side the Am­bas­sador Bridge.

The bridge com­pany for years has fought to con­struct that twin span for the Am­bas­sador Bridge, as it si­mul­ta­ne­ously seeks to block plans for a new, pub­licly owned bridge two miles down the Detroit River known as the Gordie Howe In­ter­na­tional Bridge.

The bridge com­pany says its right un­der a 1921 act to main­tain and op­er­ate the Am­bas­sador Bridge is mean­ing­less with­out al­low­ing the firm to build its own sec­ond span. That’s the only way the com­pany can op­er­ate the bridge in per­pe­tu­ity, ar­gued an at­tor­ney for the Moroun fam­ily that owns the Am­bas­sador Bridge.

“If we don’t build it, our bridge will be­come a relic and will be dead in a few years,” said Hamish Hume, the lawyer rep­re­sent­ing the Detroit In­ter­na­tional Bridge Com­pany, which pri­vately owns the 87-year-old Am­bas­sador Bridge.

The bridge firm con­tends that

the U.S. State Depart­ment wrongly ap­proved the 2012 agree­ment be­tween Michi­gan and Canada to build the pub­licly owned bridge be­cause the agree­ment was un­law­ful.

The com­pany main­tains that only the Michi­gan Leg­is­la­ture could au­tho­rize a new bridge, but Gov. Rick Sny­der ex­e­cuted the agree­ment, backed by At­tor­ney Gen­eral Bill Schuette.

“Our ar­gu­ment is that the sec­re­tary may not ap­prove the agree­ment if it’s in­valid,” Hume said.

But Judge Mer­rick Gar­land said, as he reads the case, Congress didn’t in­tend to have the sec­re­tary of state de­cide the va­lid­ity of such bridge agree­ments.

“The agency has done a review. You don’t like the review that they did, but they did it,” Gar­land said. “If you want to fight the state law case ... then that’s the place to fight it.”

Se­nior Judge David B. Sen­telle pointed out that no Michi­gan court has de­ter­mined the va­lid­ity of the cross­ing agree­ment and sug­gested a fed­eral ap­pel­late court was not the right venue to ad­ju­di­cate the is­sue.

The ap­pel­late panel on Thurs­day was con­sid­er­ing the bridge com­pany’s ap­peal af­ter U.S. District Judge Rose­mary Col­lyer dis­missed its claims in de­ci­sions is­sued in 2015 and 2016.

The law­suit dates to 2010 when the bridge com­pany filed suit seek­ing to com­pel the U.S. Coast Guard to is­sue per­mits al­low­ing it to build its twin span, later amend­ing its com­plaint with ad­di­tional counts.

Col­lyer agreed with the fed­eral gov­ern­ment’s po­si­tion that the 1921 law grant­ing the bridge com­pany the right to main­tain and op­er­ate a Detroit-Canada bridge didn’t prom­ise the bridge would al­ways be prof­itable and free from com­pe­ti­tion.

She also re­jected the Moroun fam­ily firm’s claims that the fed­eral gov­ern­ment’s ap­proval of the cross­ing agree­ment be­tween Michi­gan and Canada vi­o­lated the Com­pact Clause of the Con­sti­tu­tion and fed­eral law.

Col­lyer found that the State Depart­ment did not have to in­de­pen­dently an­a­lyze whether the agree­ment was valid un­der Michi­gan law.

Sen­telle on Thurs­day asked about the ar­gu­ment that Congress im­prop­erly del­e­gated the au­thor­ity to ap­prove bridges be­tween the United States and Canada by fail­ing to pro­vide an “in­tel­li­gi­ble prin­ci­ple” to guide the sec­re­tary of state’s ap­proval or dis­ap­proval of cross­ing agree­ments.

Un­der case law, Congress may del­e­gate its leg­isla­tive power to the other branches only so long as it es­tab­lished such an “an in­tel­li­gi­ble prin­ci­ple.”

Robert Lund­man, rep­re­sent­ing the fed­eral gov­ern­ment, said that ar­gu­ment ig­nores the nar­row fo­cus of the In­ter­na­tional Bridge Act and its leg­isla­tive his­tory, which shows Congress in­tended the State Depart­ment to as­sess bridge agree­ments based on their im­pact on for­eign pol­icy.

“The big picture here is re­ally clear: It’s for­eign pol­icy review,” Lund­man said.

Lund­man ac­knowl­edged that the State Depart­ment sought the opin­ion of the Michi­gan at­tor­ney gen­eral on whether the agree­ment re­quired autho­riza­tion or ap­proval by the Michi­gan Leg­is­la­ture, not­ing that Schuette’s of­fice had de­ter­mined no fur­ther leg­isla­tive ac­tion was needed un­der state law.

DIBC’s claims against Cana­dian de­fen­dants are still be­fore Col­lyer, pend­ing the res­o­lu­tion of sim­i­lar claims that DIBC brought in a Cana­dian court.

Last month, a Michi­gan Court of Claims judge dis­missed a law­suit that an­other com­pany af­fil­i­ated with the Mouron fam­ily brought against the state, say­ing the bridge own­ers waited too long to chal­lenge the 2012 cross­ing agree­ment.

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