United States Court of Appeals, District of Columbia Circuit
Detroit International Bridge Company, a Michigan corporation and Canadian Transit Company, a Canadian special act corporation, Appellants
Government of Canada, et al., Appellees
September 14, 2017
from the United States District Court for the District of
Columbia (No. 1:10-cv-00476)
Hume argued the cause and filed the briefs for appellants.
J. Lundman, Attorney, U.S. Department of Justice, argued the
cause for federal appellees.
him on the brief were Jeffrey H. Wood, Acting Assistant
Attorney General, and J. David Gunter II, Trial Attorney.
Littleton, Trial Attorney, entered an appearance.
O. Booth, Assistant Attorney General, Office of the Attorney
General for the State of Michigan, was on the brief for
amicus curiae Michigan Governor Richard D. Snyder in support
Before: Garland, Chief Judge, Rogers, Circuit Judge, and
Sentelle, Senior Circuit Judge.
Circuit Judge: The Ambassador Bridge is the only
bridge spanning the Detroit River between Detroit, Michigan
and Windsor, Canada. It has been in operation since 1929 and
is currently owned and operated by the Canadian Transit
Company, which is wholly owned by the Detroit International
Bridge Company (collectively "the Company"). The
Company decided to build a new span ("the Twin
Span") in order to allow maintenance of the aging
structure of the old span. This appeal involves the
Company's effort to have declared invalid a Crossing
Agreement entered into in 2012 by Michigan State officials
and the Government of Canada to build another bridge, within
two miles of the Ambassador Bridge. The Company appeals the
dismissal of four counts of its complaint and the grant of
summary judgment on one count, raising statutory challenges
and one constitutional objection. For the following reasons,
we conclude none of the challenges are persuasive and,
accordingly, we affirm.
1909 Treaty Between the United States and Great Britain
Relating to Boundary Waters Between the United States and
Canada required authorization by "special
agreement" prior to the construction of any bridge over
the boundary waters between Canada and the United States. 36
Stat. 2448 (signed Jan. 11, 1909). In 1921, Congress
authorized the Company's predecessor to build the
Ambassador Bridge over the Detroit River. See Act of
Mar. 4, 1921, 41 Stat. 1439. In 1972, Congress enacted a
general statute, the International Bridge Act
("IBA"), authorizing the construction of
international bridges subject to certain conditions. 33
U.S.C. § 535 et seq.
than fifteen years ago, the Company decided to build a Twin
Span in order to allow for maintenance of the Ambassador
Bridge to be done without disrupting bridge traffic across
the Detroit River. In 2012, acting pursuant to the IBA, the
Governor of Michigan along with the Michigan Department of
Transportation and the Michigan Strategic Fund entered into a
Crossing Agreement with the Canadian Government to build
another bridge within two miles of the Ambassador Bridge. The
Secretary of State approved the Crossing Agreement pursuant
to Section 3 of the IBA, and issued a Presidential Permit
under Section 4 of the IBA pursuant to Executive Order No.
11, 423, 33 Fed. Reg. 11, 741 (Aug. 16, 1968), amended
by Executive Order No. 13, 337, 69 Fed. Reg. 25, 299
(Apr. 30, 2004). Upon considering agency and public comments
and environmental documentation, the Secretary concluded that
the approval and the permit "would serve the national
interest because the [bridge] would advance the United
States' foreign policy interest in its bilateral
relationship with Canada;" facilitate cross-border
traffic, trade, and commerce; create jobs; and advance
"national defense priorities." New International
Bridge Record of Decision 1, 3 (Mar. 26, 2013)
Company has challenged the lawfulness of the Crossing
Agreement in state and federal court. A state intermediate
appellate court recently rejected the challenge to the State
officials' authority to execute the Agreement.
Michigan Dep't of Transp. v. Riverview-Trenton R.R.
Co., et. al., No. 17-000536-CC (Mich. Ct. App. Oct. 11,
to that, in 2013, the Company filed in the United States
District Court for the District of Columbia a nine-count
complaint based on the non-delegation doctrine and various
statutory objections. The district court dismissed seven counts
for failure to state a claim upon which relief can be
granted, four of which are at issue in this appeal.
Detroit Int'l Bridge Co. v. Gov't of Canada,
133 F.Supp.3d 70, 109 (D.D.C. 2015). The district court
denied the Company's motion for reconsideration of
several dismissed counts. Detroit Int'l Bridge Co. v.
Gov't of Canada, 189 F.Supp. 3D 85, 110 (D.D.C.
2016). Another count was dismissed as moot pursuant to a
mandate from this court. Detroit Int'l Bridge Co. v.
Gov't of Canada, No. CV 10-476, 2016 WL 8377074, at
*1 (D.D.C. Apr. 7, 2016). The district court granted summary
judgment on the remaining count, which the Company appeals,
ruling that the claim ...