133 F. Supp. 3d 70
D.D.C.2015Background
- The privately owned Ambassador Bridge (Detroit International Bridge Company and subsidiary Canadian Transit Company) was authorized by U.S. statutes in 1921 (the DIBC Act) and a reciprocal Canadian statute; plaintiffs plan a privately funded adjacent twin span (New Span).
- A binational, government-sponsored project (NITC/DRIC) and a Crossing Agreement between Canada and Michigan would build a new publicly owned bridge near the Ambassador Bridge and compete for traffic.
- Plaintiffs allege federal agencies (State Dept., Coast Guard, FHWA) discriminated against the New Span and favored NITC/DRIC by granting approvals (including a Presidential Permit) and delaying permits for the New Span, harming plaintiffs economically.
- Procedurally, plaintiffs sued federal defendants; the Court previously resolved a separate Coast Guard APA claim (Count 4). Federal defendants moved to dismiss eight remaining counts of the Third Amended Complaint; the Court grants some dismissals and leaves Count 7 (APA claim re: Crossing Agreement) intact.
- Core legal questions: whether the IBA unlawfully delegated congressional power; whether the DIBC Act grants an exclusive or perpetual franchise or private right of action; whether takings, APA, non-statutory, and Equal Protection claims are viable here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the International Bridge Act (IBA) unlawfully delegates Congress’ Article I, §10 compact power to the Secretary of State | IBA delegates Congress’ compact power to State without intelligible principle | IBA is Congress’ advance consent and provides intelligible principle via foreign policy guidance and legislative context | Dismissed: delegation valid; State’s approval guided by intelligible principle |
| Whether the DIBC Act creates an exclusive, perpetual franchise and private cause of action to block competing bridges (Counts 2 & 3) | DIBC Act and reciprocal Canadian statute create exclusive franchise and implied private remedy to enforce it | DIBC Act contains no exclusivity or contractual mutuality; grants must be strictly construed; any private right must be implied narrowly | Dismissed: Court finds implied private cause of action exists but plaintiffs failed to state claim of exclusivity or perpetual franchise |
| Whether plaintiffs’ Fifth Amendment takings claim can proceed in district court (Count 5) | Plaintiffs seek declaratory relief that government actions effect a taking that will destroy franchise value; request injunctive relief | Tucker Act requires takings claims seeking compensation to be brought in Court of Federal Claims; district court lacks jurisdiction for monetary takings claims | Dismissed for lack of jurisdiction: Tucker Act governs, Duke Power inapplicable here |
| Whether State Department’s issuance of the Presidential Permit and approval of the Crossing Agreement are reviewable under the APA (Counts 6 & 7) | State’s Presidential Permit and Crossing Agreement approvals violated APA and were arbitrary and capricious | Permit issuance is presidential action (via Exec. Order), thus unreviewable under APA; Crossing Agreement approval is reviewable and not committed to discretion | Count 6 dismissed (Presidential Permit unreviewable); Count 7 survives (Crossing Agreement approval reviewable under APA) |
| Whether non-statutory (Leedom) review of Presidential Permit is available (Count 8) | Permit illegal because based on an invalid Crossing Agreement and violated IBA, Boundary Waters Treaty, NEPA | Non-statutory review applies only for clear, specific statutory violation or ultra vires action; challenged permit is presidential action and not shown to violate a clear statutory command | Dismissed for lack of jurisdiction: non-statutory review not available |
| Whether plaintiffs have Article III standing to challenge State Department actions and whether redressability exists as to the Crossing Agreement | Economic competitor standing: NITC/DRIC will divert traffic and cause imminent economic injury; invalidating Crossing Agreement would delay/impair NITC/DRIC | Chain of causation too attenuated; invalidating Crossing Agreement may not redress permit issuance | Standing found: plaintiffs have competitor standing; redressability sufficient for Count 7 |
| Whether plaintiffs state an Equal Protection class-of-one claim (Count 9) | Agencies intentionally favored public NITC/DRIC and discriminated against privately funded New Span through differential permitting and review | Projects are not similarly situated (different permitting requirements, different agencies), and delays have rational bases; no sufficient allegations of intent/differential treatment | Dismissed: plaintiffs not similarly situated and pleadings insufficient |
Key Cases Cited
- Whitman v. American Trucking Ass’ns, 531 U.S. 457 (1991) (articulates intelligible principle standard for delegation)
- Franklin v. Massachusetts, 505 U.S. 788 (1992) (presidential actions generally not reviewable under APA)
- Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978) (Declaratory Judgment Act allows pre-enforcement challenge where inadequate compensation is likely)
- Leedom v. Kyne, 358 U.S. 184 (1958) (extremely limited non-statutory review where agency acts in excess of statutory powers)
- Village of Willowbrook v. Olech, 528 U.S. 562 (2000) (class-of-one equal protection standard)
- Sandoval v. Alexander, 532 U.S. 275 (2001) (private rights of action must be created by Congress)
- Cannon v. University of Chicago, 441 U.S. 677 (1979) (statutory language indicates propriety of implying a cause of action)
- Winstar Corp. v. United States, 518 U.S. 839 (1996) (government change to regulatory scheme and contract impairment principles)
- Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (public grants strictly construed; exclusivity not presumed)