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 the construction of a publicly owned rival span connecting Detroit and Windsor, Canada.
The arguments before a three-judge 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 that Congress intended the State Department to assess bridge agreements based on their impact on U.S. 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 the office of Attorney General Bill Schuette had determined no further legislative action was needed under state law.
DIBC’s claims in the case against Canadian defendants are still before Collyer at the district court level, 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.