Ambassador Bridge owner Moroun gets another shot at derailing Gordie Howe span

Todd Spangler | Detroit Free Press

WASHINGTON — The battle over the bridge isn’t over just yet.

On Monday, the U.S. Court of Appeals for the District of Columbia Circuit scheduled a hearing for mid-September on an appeal filed by the owner of the Ambassador Bridge to stop a rival international span between Detroit and Canada from being built nearby.

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“The government-owned (Gordie Howe International Bridge) will be located right near the Ambassador Bridge, and its proponents predict it will take away 75% of the Ambassador Bridge’s toll revenue from commercial traffic,” wrote lawyers for the Detroit International Bridge Co. (DIBC), which owns the iconic 87-year-old span. “Overall traffic levels across the Detroit River are already declining … The loss of another 75% of the most valuable commercial truck traffic would be a death knell.”

The hearing — set for Sept. 14 in Washington before a three-judge panel — keeps alive a lawsuit that has gone on now for seven years. In it, the DIBC argues that Congress’ original 1921 act approving construction of the bridge between Detroit and Windsor was effectively an exclusive franchise and that the State Department wrongly approved an agreement between Michigan and Canada it calls illegal.

But those claims, along with several others, have already been dismissed by U.S. District Judge Rosemary Collyer in decisions in 2015 and 2016, with the federal government persuading her that it is under no responsibility to establish the legality of an agreement made by Michigan, especially one that both Gov. Rick Snyder and state Attorney General Bill Schuette deemed appropriate.

As for the argument that the DIBC was granted an exclusive franchise in Detroit, government lawyers responded — and Collyer agreed — that the original act made no such claim, only that the owners have a right to “construct, maintain and operate a bridge,” not one free of competition.

“None of the rest of DIBC’s arguments helps them,” the government lawyers wrote the Appeals Court in April. “DIBC claims that the Ambassador Bridge will not be profitable, or maybe as profitable, after the Gordie Howe Bridge is built. … That does not matter. … The statute does not guarantee DIBC a profitable bridge — although it has had one for more than eighty years — let alone a perpetually profitable bridge.”

In its briefs, the DIBC wrote, however, that it is “economically impossible” for it to move ahead with its own plans to modernize the old bridge with a second span if the Gordie Howe Bridge — which the Canadian government is paying for — is built some two miles down the Detroit River. “Without that Twin Span,” DIBC lawyers wrote, “the Ambassador Bridge is on the road to obsolescence.”

While the DIBC has fought to win approvals for its own second span, however, it still hasn’t moved opposition across the Detroit River in Canada, where officials have balked at the idea of more traffic moving into Windsor. The Bridge Company, meanwhile, has argued that Canada has failed to make good on promises to improve roads to and from the bridge on its side of the border.

Seven years ago, the DIBC — which was controlled then by Ambassador Bridge owner Manuel (Matty) Moroun — filed the case trying to force the Coast Guard to issue approvals allowing it to move ahead with its own twin span, believing that would forestall the Canadian-backed span.

But after the state of Michigan joined with Canada and the U.S. State Department, in 2013, and issued approvals for the rival span, the DIBC expanded the lawsuit to include federal officials. Besides its claim of exclusivity, the lawsuit also argued that the State Department’s process for approving international bridges was unconstitutional despite Congress’ passage of an act in 1972 authorizing it.

The larger argument appeared to focus on the legality of Michigan’s 2012 “crossing agreement” with Canada to build the new bridge, authorized by Snyder even though the Michigan Legislature never signed off on it. But Snyder has said it was within his power to make that agreement — no Michigan funds were needed for the Canadian-built bridge.

Collyer eventually ruled that Michigan couldn’t be sued in federal court over the agreement, enjoying protection as a sovereign state. But she also ruled that the lawsuit couldn’t proceed without Michigan being part of it, since any decision would inevitably impact Michigan’s citizens.

Snyder, and Gov. Jennifer Granholm before him, as well as numerous local and county officials and business people in southeastern Michigan, have been pursuing the rival span as a way both to put people to work and ensure that trade continues smoothly along what is among the busiest trade corridors in North America. Canada is among the top U.S. trading partners.

The lawsuit noted that the DIBC, once controlled solely by Moroun, is now under the control of his son, Matthew Moroun, who has testified before, in a court hearing held by Collyer, that construction of the Gordie Howe Bridge could ruin the Ambassador Bridge.

Work on the Gordie Howe International Bridge is continuing, with the Windsor-Detroit Bridge Authority last month announcing work on power lines as well as relocation of other transmission lines. A firm still has to be chosen for the main construction on the bridge.

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