A federal appeals court on Tuesday ordered the U.S. Coast Guard to issue a permit by Jan. 4 needed to build a second span of the Ambassador Bridge or explain why it hasn’t done so.
The owner of the Ambassador Bridge — billionaire Manuel “Matty” Moroun and his family — has gone to court to try to force the government to grant approval for a second span even as Canada and the United States proceed with a new publicly owned planned bridge that they hope to open in 2020 named after hockey great Gordie Howe.
The order from the District of Columbia Court of Appeals came a day after the court heard arguments in a long-running court battle. The suit includes the Canadian government and U.S. Coast Guard.
“The Ambassador Bridge was 76 years old when we applied for our permit to accommodate our second span. The bridge is now 86. The ‘delay game’ has gone on long enough. We look forward to the Coast Guard’s response to the court,” said Mickey Blashfield, a spokesman for the Detroit International Bridge Co., owner of the Detroit River bridge crossing.
If the permit isn’t approved, the Coast Guard must explain why and detail if the company has obtained the needed property rights to build the second span.
The Ambassador Bridge initially filed for the Coast Guard navigation permit in 2004. The U.S. State Department said in 2005 that because of its authorization from Congress, the second span has already met the terms of a presidential permit.
In 2009, the Coast Guard issued a draft finding of no significant impact to the environment but didn’t issue a navigation permit for “regulatory reasons.” A federal district judge in May upheld the decision.
“While awaiting the permit, the Ambassador Bridge replaced its main span deck and enhanced its plazas to accommodate the second span, awaiting the final permit from the Coast Guard,” the company said.
Even if the Ambassador Bridge wins approval, it is not clear if Canada would be willing to approve the crossing. Canadian officials have opposed the effort under the Conservative government of Prime Minister Stephen Harper, who was defeated in Monday’s election by Justin Trudeau of the Liberal party.
Earlier this month, a federal judge dismissed nearly all of a five-year-old lawsuit by the Ambassador Bridge’s owners that sought to block the planned $2.1 billion publicly owned Detroit River crossing and allow it to add a second span. The new Gordie Howe bridge is to be two miles downriver from the Ambassador Bridge.
In 2008, the Ambassador Bridge company said a second span would cost $400 million to build.
In a 57-page ruling, U.S. District Judge Rosemary M. Collyer dismissed eight of nine counts of the suit initially filed in March 2010 against the U.S. and Canadian governments.
Collyer refused to dismiss one count of the suit that charges the U.S. State Department didn’t properly approve the crossing agreement. That pact is needed to establish the design, construction, operation and maintenance of the new bridge, set arrangements for Canada recouping the money it is advancing to build the bridge, limit the liabilities of the countries and establish rules for distributing excess toll revenue — once Canada is paid back, she said.
Collyer said if she tosses out the agreement, it “would inevitably undermine and slow the planned construction” of the bridge.
The decision means Collyer could hold a trial on the remaining issue.
She won’t decide on the remaining count before mid-February 2016 at the very earliest, according to an order made public this week.
The Coast Guard told the appeals court in September it was reconsidering the application in light of the fact that the bridge company has obtained property from the city.
The Coast Guard notes that at the time of the application, the bridge authority didn’t have approval to build the span in Detroit’s Riverside Park.
In May, the bridge company told the court it had a tentative deal to win the property rights needed from the city to build the second span. In July, the Detroit City Council approved a land swap with the Ambassador Bridge company, giving the firm three acres of Riverside Park in exchange for five acres of bridge property adjacent to the park.
“The Coast Guard is attempting to move forward in the permit process,” the Justice Department said in a court filing in September. The Justice Department called the Coast Guard’s handling of the permit application to date “entirely reasonable.”
The government said: “A private entity seeking to construct an international bridge must demonstrate that it has the necessary property rights in order to obtain a permit.”
Moroun has at least three other bridge challenges against the U.S. secretary of state, Federal Highway Administration, the Coast Guard and the Windsor-Detroit Bridge Authority, which will oversee construction of the new span. Most have not been successful.
Moroun has spent tens of millions of dollars on legal challenges as well as a failed statewide ballot initiative in 2012 aimed at blocking the new bridge.
The Ambassador’s owners have a separate suit pending in Washington seeking documents under the Freedom of Information Act from the State Department dating back decades.
In July, the Gordie Howe International Bridge authority said it began the process of seeking a private-sector partner for the project. Finalists are expected to be decided late this year. The selection process is anticipated to be up to 18 months.
In February, the U.S. Supreme Court said it would not review an appeals court decision concerning the siting of a new Detroit-Windsor bridge, removing another hurdle to the publicly financed span’s scheduled completion in five years.
The Supreme Court let stand a U.S. 6th Circuit Court of Appeals ruling issued in June that upheld the Federal Highway Administration’s approval of the Delray neighborhood in Detroit as the preferred location.