United States Court of Appeals

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2017 Decided November 21, 2017

No. 16-5270

DETROIT INTERNATIONAL BRIDGE COMPANY, A MICHIGAN CORPORATION AND CANADIAN TRANSIT COMPANY, A CANADIAN SPECIAL ACT CORPORATION, APPELLANTS

v.

GOVERNMENT OF CANADA, ET AL., APPELLEES

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

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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 for the court filed by Circuit Judge ROGERS.

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

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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).

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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

1 Count 1 alleged Congress unconstitutionally delegated Compact Clause authority to the Secretary of State without an intelligible principle in Section 3 of the IBA. Compl. ? 292. Counts 2 and 3 sought declarative and injunctive relief to prohibit Executive officials from supporting and approving the new government bridge, alleging this approval violated the Company's statutory and contractual franchise rights to maintain and operate the Ambassador Bridge and the Twin Span. Id. ?? 299, 305, 312-13, 321-24. Count 4 alleged the Coast Guard unlawfully denied or delayed approval of the Company's application for a permit to build the Twin Span. Id. ?? 326, 327-30. Count 5 alleged a taking and appropriation of the Company's private property in violation of the Takings Clause and Due Process Clause of the Fifth Amendment, U.S. CONST. amend. V. Id. ?? 335, 338-39. Count 6 alleged the State Department's issuance of a Presidential Permit for the new governmental bridge was arbitrary and capricious in violation of the Administrative Procedure Act ("APA"). Id. ? 341. Count 7 alleged the Secretary of State's approval of the Crossing Agreement violated the APA because the Agreement was invalid under Michigan law. Id. ? 357. Count 8 sought to enjoin all federal defendants from implementing or relying upon permits and approvals of the Crossing Agreement, because the approvals were unlawful and exceeded the defendants' authority. Id. ?? 364, 368-89. Count 9 alleged the federal defendants had discriminated against the Company in favor of the government bridge in violation of the Equal Protection Clause of the Fifth Amendment, U.S. CONST. amend. V. Id. ?? 371-73.

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(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 could not proceed because the State of Michigan was an indispensable party, see FED. R. CIV. P. 19, and, alternatively, that the claim failed on the merits. Detroit Int'l Bridge Co. v. Gov't of Canada, 192 F. Supp. 3d 54, 66, 70-71 (D.D.C. 2016).

II.

On appeal, the Company contends that the approval by the Secretary of State of the Crossing Agreement was contrary to Michigan law, and was therefore not an authorized approval under Section 3 of the IBA, and was, in any event, arbitrary and capricious. It also contends that the Company was entitled to declaratory and injunctive relief in order to prevent executive agencies from supporting and approving the new bridge pursuant to Section 3 and thereby blocking the Twin Span contrary to the will of Congress. Additionally, the Company contends that Congress unconstitutionally delegated its authority under the Compact Clause, U.S. CONST., art. I, ? 10, cl. 3, in Section 3 of the IBA. Finally, the Company contends the district court not only had jurisdiction to review the Secretary's issuance of the Presidential Permit under Section 4 of the IBA, but also failed to recognize there was law to apply.

Our review of the dismissals of four counts and summary judgment on a fifth count is de novo. Baylor v. Mitchell Rubenstein & Assocs., P.C., 857 F.3d 939, 944 (D.C. Cir. 2017); Coleman v. Duke, 867 F.3d 204, 209 (D.C. Cir. 2017).

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