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Detroit International Bridge Co. v. Government of Canada

United States Court of Appeals, District of Columbia Circuit

November 21, 2017

Detroit International Bridge Company, a Michigan corporation and Canadian Transit Company, a Canadian special act corporation, Appellants
v.
Government of Canada, et al., Appellees

          Argued September 14, 2017

         Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00476)

          Hamish Hume argued the cause and filed the briefs for appellants.

          Robert J. Lundman, Attorney, U.S. Department of Justice, argued the cause for federal appellees.

          With him on the brief were Jeffrey H. Wood, Acting Assistant Attorney General, and J. David Gunter II, Trial Attorney.

          Matt Littleton, Trial Attorney, entered an appearance.

          Joshua 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 of defendants-appellees.

          Before: Garland, Chief Judge, Rogers, Circuit Judge, and Sentelle, Senior Circuit Judge.

          OPINION

          ROGERS CIRCUIT JUDGE

         Rogers, 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.

         I.

         The 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.

         More 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) ("ROD").

         The 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, 2017).

         Prior 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.[1] 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 ...


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