Building a Bridge, Not a Wall

The D.C. Circuit Court of Appeals in Detroit Int’l Bridge Co. v. Gov’t of Canada, 875 F.3d 1132 (D.C. Cir. 2017), has held that we should build bridges.  Specifically, it held that that the only bridge between Detroit, Michigan, and Windsor, Canada, which is privately owned, is not the only game in town, and that the state of Michigan and Canada are free to build a second bridge between the U.S. and Canada.  

In 1921, Congress authorized the building of the Ambassador Bridge over the Detroit River. The Ambassador Bridge, now owned by the Detroit Int’l Bridge Co., was completed in 1929 and was then the longest suspended central span in the world.  It is now the busiest crossing on the U.S.-Canada border, and the bridge company had decided years ago to build a new bridge to reduce the traffic on the Ambassador Bridge, but with little progress.  So, in 2012, the Governor of Michigan and the Canadian government agreed to build what is now technically the New International Transit Crossing/Detroit River International Crossing (NITC/DRIC) but is tentatively called the Gordie Howe International Bridge (or Pont International Gordie Howe in French).

The Detroit Int’l Bridge Co. (with co-plaintiffs Crown Enterprises, Inc., DIBDetroit, LLC, Riverview-Trenton Railroad Co., and Central Transport, LLC) sued in the Michigan Court of Claims to block the new bridge but lost.  In August 2017, Judge Stephens of the Michigan Court of Claims held that the company’s December 29, 2016 lawsuit challenging the June 2012 crossing agreement was beyond the one-year statute of limitation for filing a lawsuit against the state.  That decision is currently pending on appeal to the Michigan Supreme Court, where it has been fully briefed and is awaiting oral argument and a decision.

The company also sued in federal court to block the bridge.  Judge Colyer of the U.S. District Court for the District of Columbia first denied a requested preliminary injunction to stop navigational permits from being issued (Detroit Int’l Bridge Co. v. Gov’t of Can., 53 F. Supp. 3d 1 (May 4, 2014)). She then stayed the case pending the outcome of litigation in Canada, in which the Detroit Int’l Bridge Co., and its Canadian subsidiary had sued Her Majesty the Queen in Right of Canada and the Windsor-Detroit Bridge Authority (WDBA) (Canada), which would operate the NITC/DRIC on the Canadian side of the border. Canada filed a motion to dismiss and a motion to stay this U.S. federal case.  

The district court ultimately held that the U.S. Secretary of State did not act arbitrarily and capriciously in approving the agreement to build the new bridge. There is no implied public right of the company to maintain its monopoly or profitability. The court of appeals affirmed the federal district court’s summary judgment in favor of building the new bridge.  

As a result, the New International Transit Crossing/Detroit River International Crossing (NITC/DRIC), aka the Gordie Howe International Bridge, is planned, but bids for its construction are not due until September 2018.  The new bridge is planned to connect I-75 and I-96 in Michigan with Highway 401 in Windsor, Ontario.  This will be an improvement over the Ambassador Bridge, which merely connects to streets in downtown Ontario.  

Thanks to Cincinnati lawyer and contributor, Paul Croushore, JD, LLM, for insight into International Law.