Morouns try again to block rival Detroit bridge

WASHINGTON — A week after Manuel (Matty) Moroun's family got a boost in its effort to build a new span next to the Ambassador Bridge, an appeals court's questions today seemed to raise doubts about the likelihood of their blocking a rival bridge to Canada.

Chief Judge Merrick Garland — who at this time last year was then-President Barack Obama's nominee to the Supreme Court -- and Senior Judge David Sentelle of the D.C. Circuit Court of Appeals peppered the Morouns' lawyer, Hamish Hume, at a hearing this morning, casting doubts on an appeal aimed at blocking the Gordie Howe Bridge.

Garland went so far as to suggest that the case was misplaced, noting that if the Morouns — whose Detroit International Bridge Co. owns the Ambassador Bridge — want to challenge the validity of agreements reached between the state of Michigan and Canada for a new bridge, they should do so in state courts.

The Bridge Company, now under the control of Moroun's son, Matthew, is arguing that approvals for the proposed rival bridge by the U.S. State Department were improper because those agreements were not authorized by state law. But federal lawyers say that's not the federal agencies' responsibility to sort out and that, in this case, the State Department had the governor and state attorney general vouching for them as proper.

"That should be the end of it for us," said Garland, as he and Sentelle questioned Hume at length as to the standard of review the State Department was expected to use if not one vouched for by a state's top officials. "If you can show later in a state court the deal's bad, the whole deal is off," said Garland.

The hearing came a week after surprising word that the Canadian government — which is paying for the proposed rival span and has long been its chief advocate — had approved a permit allowing the Bridge Company to build an updated replacement span of its own. That news fuels the already tense race between the two parties to construct a new bridge, with the possibility of the first all-but consuming tolls from the other.

Meanwhile, media reports swirled that the head of the organization overseeing the construction of the Gordie Howe Bridge could be losing his job just weeks after he reportedly pushed back the likely completion of the long-awaited span until 2023.

Also recently, media reports said that the Michigan Court of Claims rejected a challenge to the new rival bridge filed by the Morouns and the companies they control, saying it was filed too long after the 2012 crossing agreement reached by Gov. Rick Snyder and the Canadian government.

In the case before the District of Columbia Circuit Court of Appeals, which grew out of a case the Bridge Company lost before D.C. District Court Judge Rosemary Collyer, the Morouns' lawyers have argued for years that the economic realities effectively result in destroying the franchise the Bridge Company was given by Congress and the Canadian Parliament early last century to operate a span between Detroit and Windsor, Ontario.

Hume said the franchise "is meaningless if we can't build our twin span" and that building the twin span is "economically impossible madness" if the rival span is built.

"if we don't build it, it (the Ambassador Bridge) will be a relic, dead, within a couple of decades," said Hume.

But Sentelle -- who sat on the three-judge panel hearing the appeal with Garland and Judge Judith Rogers -- questioned whether that was any business of the court's, since the act of Congress covered operating a bridge on a specific site and didn't necessarily prohibit "something off to the side that makes it uneconomical."

"You want an exclusive franchise," he said.

Arguing for the federal government, Justice Department lawyer Robert Lundman battled back against Hume's claims that the State Department had no "intelligible principle" for determining when to authorize international crossings, which goes back to at least the 1972 International Bridge Act, when Congress conferred that power on the president.

Lundman said while the principle may not be spelled out in the bridge act per se, it's clear. "It's foreign policy (review) by the State Department," he said, noting that the duties and responsibilities for the agency had long since been spelled out and delegated. "The standard here is national interest."

It's unclear when the panel will issue its ruling, but if it were to rule for the Bridge Company it could have sweeping impacts on how the federal government authorizes -- or doesn't -- new international crossings and states' rights in reaching agreements involving them.

Contact Todd Spangler at 703-854-8947 or at tspangler@freepress.com. Follow him on Twitter at @tsspangler.