Detroit Int'l Bridge Co. v. Gov't of Can.

875 F.3d 1132

DETROIT INTERNATIONAL BRIDGE COMPANY, a Michigan Corporation and Canadian Transit Company, a Canadian Special Act Corporation, Appellants

v.GOVERNMENT OF CANADA, et al., Appellees

No. 16-5270

United States Court of Appeals, District of Columbia Circuit.

Argued September 14, 2017

Decided November 21, 2017

Hamish Hume, Washington, DC, 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.

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 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).

The IBA provides, in pertinent part:

The consent of Congress is hereby granted to the construction, maintenance, and operation of any bridge and approaches thereto, which will connect the United States with any foreign country (hereinafter in this subchapter referred to as an "international bridge") and to the collection of tolls for its use, so far as the United States has jurisdiction. Such consent shall be subject to (1) the approval of the proper authorities in the foreign country concerned; (2) [not at issue here]; and (3) [ ] the provisions of this subchapter.

33 U.S.C. § 535.

A.

Section 3 provides Congressional consent for states to enter into international bridge agreements with Canada or Mexico and requires the Secretary of State's approval of the agreements. 33 U.S.C. § 535a.² The Company, viewing Section 3 to authorize approval of only valid agreements, raises three challenges to the Secretary's approval of the Crossing Agreement.

1. Regarding summary judgment on Count 7, the Company contends that the Secretary failed to inquire adequately into Michigan law, and to the extent an inquiry was made the Secretary's action was arbitrary and capricious. In particular, the Company points to state law that it maintains prohibited the State officials from executing the Crossing Agreement, and specifically maintains that the Urban Cooperation Act, 2011 Mich. Pub. Acts 63 § 384(1), and 2012 Mich. Pub. Acts 236 § 402(1) did not authorize the Governor, the Michigan Department of Transportation, or the Michigan Strategic Fund to execute the 2012 Crossing Agreement.

Neither the plain text of Section 3 nor other provisions of the IBA appear to require the Secretary to inquire into state law. See 33 U.S.C. §§ 535 – 535i. Instead, as the Secretary explained in responding to comments on the Crossing Agreement, the Secretary's function is to assess the effects the Crossing Agreement would have on the foreign policy of the United States. Resp. to Cmts., ROD, App. A at 4. But even assuming a state-law inquiry was required, the IBA does not require this court to review the state-law question de novo . Instead, the question for this court would be whether the Secretary made a "clear error of judgment." Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Bowman Transp. Inc. v. Arkansas–Best Freight System, Inc. , 419 U.S. 281, 285, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974) ). Finding no such error, we conclude the district court properly granted summary judgment on Count 7 of the complaint.

The Secretary invited the Governor to explain whether Michigan State officials had legal authority to execute the Crossing Agreement, and received a letter from a Counsel to the Governor attaching a letter from a Deputy State Attorney General. Both letters represented that the Governor, the Michigan Department of Transportation, and the Michigan Strategic Fund did not require legislative approval to enter into the Crossing Agreement, and that the Crossing Agreement was valid under Michigan state law, including the Urban Cooperation Act. The Secretary relied on these letters in responding to public comments and that response was attached to the Record of Decision. See Resp. to Cmts., ROD, App. A. The Company objects that the letters contain only conclusory statements and states that the Secretary should have relied instead on letters from State legislators casting doubt on the authority of...