DETROIT INTERNATIONAL BRIDGE COMPANY, A MICHIGAN CORPORATION AND CANADIAN TRANSIT COMPANY, A CANADIAN SPECIAL ACT CORPORATION v. GOVERNMENT OF CANADA, ET AL.
No. 16-5270
United States Court of Appeals, District of Columbia Circuit
Argued September 14, 2017, Decided November 21, 2017
Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00476)
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.
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 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.
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
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
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,
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.
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.
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
The Secretary invited the Governor to explain whether Michigan State officials had legal authority to execute the Crossing
Notably, this is not a case in which the Michigan Supreme Court had spoken on the state-law question to the contrary or where there was evidence that the Crossing Agreement was facially invalid. Indeed, an intermediate court has confirmed the officials’ authority. See Michigan Dep‘t of Transp, No. 17- 000536-CC. Additionally, the Company fails to show that the Crossing Agreement is plainly invalid under Michigan law. For instance, the Company maintains that the Crossing Agreement violates the Urban Cooperation Act of 1967, which provides that Michigan agencies can exercise only powers they share in common with other agencies or possess independently,
Additionally, two Michigan statutes referenced by the Company as prohibiting execution of the Crossing Agreement—2011 Mich. Pub. Acts 63 § 384(1) and 2012 Mich. Pub. Acts 236 § 402(1)—involve appropriations for the Michigan Department of Agriculture and Rural Development and the Company fails to show how they prohibit the Michigan Department of Transportation and Strategic Fund from entering into the Crossing Agreement. Moreover, Michigan State legislative records indicate the legislature‘s concern was that Michigan not bear the costs of the new bridge, see 2013 Mich. Pub. Acts 59 § 384; 2014 Mich. Pub. Acts 252 §§ 384-85; 2015 Mich. Pub. Acts 84 §§ 384-85, and the Crossing Agreement calls for Canada to bear the costs of construction and maintenance, see Crossing Agreement §§ V(1), X(6), X(11), thus addressing the legislature‘s concern.
Because the Secretary did not clearly err in approving the Crossing Agreement, the district court properly granted federal appellees summary judgment on Count 7. This court, however, need not decide whether the district court‘s basis for granting summary judgment—that the State of Michigan was an indispensable
2. On the dismissal of Counts 2 and 3, the Company contends approval of the Crossing Agreement was unlawful because it contradicted federal laws supporting the Twin Span project by making it “economically impossible” for the Company to build the Twin Span. Applt‘s Br. 60. The Company points to its undisputed right to “maintain[] and operate” the Ambassador Bridge, Act of Mar. 4, 1921, 41 Stat. 1439, which it points out Congress has reaffirmed on several occasions, Applt‘s Br. 59 (citing Act of Apr. 17, 1924, 43 Stat. 103; Act of Mar. 3, 1925, 43 Stat. 1128; Act of May 13, 1926, 44 Stat. 535). The Company emphasizes that the 1972 Report of the House Committee on Foreign Affairs states that the IBA legislation “should not be construed to adversely affect the rights of those operating bridges previously authorized by the Congress to repair, replace, or enlarge existing bridges,” H.R. REP. NO. 92-1303 at 3-4 (Aug. 3, 1972), understanding this to mean that its “perpetual right to operate the Ambassador Bridge includes the right to build the Twin Span,” Applt‘s Br. 59. The Company also emphasizes that between 1998 and 2008, Congress appropriated “hundreds of millions of dollars for the Ambassador Bridge Gateway Project.” Id. at 60; see Third Am. Compl. ¶ 132. The Report of the House Committee on Appropriations explained that the Project was to “accommodate . . . and protect plans . . . [for] a second span of the Ambassador Bridge.” H.R. REP. NO. 107-722 at 101 (2002); see Third Am. Compl. ¶ 143. The Company draws the conclusion that these congressional actions necessarily evidence support for the profitable operation of the Ambassador Bridge, otherwise there would be no reason to expend federal funds. See Applt‘s Br. 60-61. Approving the new bridge, the Company maintains, makes it economically impossible to build the Twin Span and thereby thwarts the will of Congress. Id.
Approval of the Crossing Agreement does not violate any rights Congress conferred on the Company and its predecessors in ownership of the Ambassador Bridge by the 1921 Act and subsequent appropriation acts for the Twin Span. The district court therefore properly dismissed Counts 2 and 3 of the complaint seeking declaratory and injunctive relief. Although Congress has authorized the private maintenance and operation of the Ambassador Bridge and funded aspects of the Twin Span project from federal funds, its enactments do not vest in the Company public rights beyond those that Congress specified. In Charles River Bridge v. Warren Bridge, 36 U.S. 420, 421 (1837), the Supreme Court rejected the notion of implied public rights. In that case, a private company filed suit to prevent the construction of a second bridge over the Charles River because, it maintained, the second bridge impermissibly “destroy[ed] the value” of its bridge. Id. at 422. The Court affirmed denial of the requested injunction, reasoning that in authorizing the company to operate its bridge, the Massachusetts legislature had not specified a right to exclusivity and “[i]n grants by the public, nothing passes by implication.” Id. at 421-423, 553 (citing Jackson v. Lamphire, 28 U.S. 280, 287 (1830)).
The Company, too, seeks the benefit of an implied right. But it has pointed to nothing to show that Congress intended the Ambassador Bridge to be perpetually profitable for its owners. Contra Applt‘s Br. 61. Failing to find an explicit statement in statutory text, the Company turns to legislative history. Even assuming such
3. The Company challenges the dismissal of its non-delegation claim, Count 1, regarding the delegation in Section 3 of the IBA to the Secretary of State, on the ground that Congress provided no intelligible principle to apply. In its view, the delegation was unconstitutional because the statute itself did not provide an intelligible principle to guide the exercise of the Secretary‘s discretion. See Applt‘s Br. 42. But, as the government suggests, this is inconsistent with Supreme Court instruction and this court‘s precedent; that is, the intelligible principle here derives from the narrow context of the IBA on international bridges and agreements with foreign nations, combined with the delegation of authority to the Secretary of State. See Appellee‘s Br. 21-23.
The Supreme Court has instructed that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” Whitman v. Am. Trucking Ass‘ns, 531 U.S. 457, 475 (2001). “Congress — in giving the Executive authority over matters of foreign affairs — must of necessity paint with a brush broader than that it customarily wields in domestic areas.” Zemel v. Rusk, 381 U.S. 1, 17 (1965). The Company relies on the statement in Whitman, 531 U.S. at 472, that Congress must “lay down by legislative act an intelligible principle.” (internal quotation marks and citation omitted). But the Supreme Court has explained that the delegation “need not be tested in isolation” and “derive[s] much meaningful content from the purpose of the Act, its factual background and the statutory context in which [it] appear[s].” Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946).
Applying these principles, this court has held that a delegation authorizing the Secretary of the Interior, who has a trust obligation with respect to Indians, see Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 211 (2012), “to acquire real property for the [Pokagon Indian] Band,” TOMAC v. Norton, 433 F.3d 852, 866 (D.C. Cir. 2006) (quoting
The Company‘s reliance on Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), is misplaced. In that case, the Supreme Court held a delegation was unconstitutional because the statute delegated to the President “unlimited authority” to prohibit interstate and foreign commerce of petroleum and petroleum products, and the statute or its context “contain[ed] nothing as to the circumstances or conditions” in which the power should be exercised. Id. at 415-17. Here, the IBA supplies the narrow circumstance of international bridge agreements with Canada and Mexico. See
B.
Under IBA Section 4, no international bridge may be constructed without Presidential approval.
The 1968 Executive Order on Presidential Permits stated that “the proper conduct of the foreign relations of the United States requires that executive permission be obtained for the construction and maintenance at the borders of the United States of facilities connecting the United States with a foreign country.” Exec. Order 11,423, 33 Fed. Reg. 11,741, pmble. (emphasis added). The 2004 Executive Order affirmed that the Secretary should issue a Presidential Permit if doing so “would serve the national interest.” Exec. Order 13,337, 69 Fed. Reg. 25,299, § 1(g); see Exec. Order 11,423, 33 Fed. Reg. 11,741, § 1(d). In the foreign affairs arena, the court lacks a standard to review the agency action. As the court explained in Dist. No. 1, Pac. Coast Dist., Marine Engineers’ Beneficial Ass‘n v. Marine Admin., et al., 215 F.3d 37, 42 (D.C. Cir. 2000), generally “judgments on questions of foreign policy and national interest . . . are not subjects fit for judicial involvement.”
The Company offers no persuasive argument for adopting a different approach with respect to issuance of the Section 4 Presidential Permit here. Its reliance on Dickson v. Sec‘y of Def., 68 F.3d 1396 (D.C. Cir. 1995), and Marshall Cnty. Health Care Auth. v. Shalala, 988 F.2d 1221 (D.C. Cir. 1993), is misplaced. The issue in those cases arose in the context of military discharge classifications and Medicare reimbursement, respectively. By contrast, the context surrounding issuance of a Section 4 Presidential Permit under the IBA involves a determination rife with executive discretion in an area that the U.S. Constitution principally vests in the political branches. See e.g., Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005). Because the challenged issuance is not subject to judicial review, the court need not decide whether the issuance is presidential action under Franklin, 505 U.S. 788.
Accordingly, we affirm the judgment of the district court dismissing Counts 1, 2, 3, and 6, and granting summary judgment on Count 7.
Notes
The consent of Congress is hereby granted for a State or a subdivision or instrumentality thereof to enter into agreements—
(1) with the Government of Canada, a Canadian Province, or a subdivision or instrumentality of either, in the case of a bridge connecting the United States and Canada, or
(2) with the Government of Mexico, a Mexican State, or a subdivision or instrumentality of either, in the case of a bridge connecting the United States and Mexico, for the construction, operation, and maintenance of such bridge in accordance with the applicable provisions of this subchapter.
The effectiveness of such agreement shall be conditioned on its approval by the Secretary of State.
No bridge may be constructed, maintained, and operated as provided in section 535 of this title unless the President has given his approval thereto. In the course of determining whether to grant such approval, the President shall secure the advice and recommendations of (1) the United States section of the International Boundary and Water Commission, United States and Mexico, in the case of a bridge connecting the United States and Mexico, and (2) the heads of such departments and agencies of the Federal Government as he deems appropriate to determine the necessity for such bridge.