Detroit International Bridge Company v. Government of Canada

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

____________________________________

)

DETROIT INTERNATIONAL )

BRIDGE COMPANY, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 10-476 (RMC)

)

GOVERNMENT OF CANADA, et al., )

)

Defendants. )

____________________________________ )

OPINION

The Ambassador Bridge spans the Detroit River between Detroit, Michigan and

Windsor, Ontario and carries more than one-quarter of the total commercial traffic between the

United States and Canada. The Bridge is privately owned by the Detroit International Bridge

Company (DIBC, or Bridge Company) and its wholly-owned subsidiary, the Canadian Transit

Company, which collect toll revenue for Bridge maintenance and profit. However, the

Ambassador Bridge is more than eighty years old. Its owners want to construct a Twin Span

immediately adjacent to the existing Bridge to service customers while maintenance work is

performed on the Ambassador Bridge. To their dismay, however, a cross-border partnership of

government entities has proposed the construction of a new publicly-owned bridge, which would

compete with the Ambassador Bridge and possibly destroy the financial basis for the Twin Span.

DIBC applied for a navigational permit from the U.S. Coast Guard approximately ten years ago,

before the partnership was formed, but the Coast Guard has refused to process the application

pending resolution of a local property rights dispute. DIBC sues the Coast Guard for, inter alia,

its failure to issue a navigational permit for the Twin Span. The Coast Guard moves to dismiss

this claim, and DIBC cross-moves for summary judgment. DIBC also moves to enjoin the Coast

1

Guard from issuing a navigational permit for the competing government-owned bridge. For the

reasons set forth below, the Court will deny Plaintiffs’ Motion for a Preliminary Injunction and

grant the Coast Guard’s Motion to Dismiss Count IV of the Second Amended Complaint.

I. FACTS

The instant dispute stems from the Coast Guard’s refusal to issue a navigational

permit for the Twin Span based on DIBC’s failure to acquire certain local property rights. DIBC

contends that the Coast Guard’s refusal to grant a navigational permit constitutes arbitrary and

capricious agency action, particularly in light of the Agency’s pending approval for the

government-owned “New International Trade Crossing/Detroit River International Crossing”

(NITC/DRIC) (pronounced Nitsy-Drick) bridge. Specifically, DIBC argues that the Coast

Guard’s decision to return its application is based on a regulation that either is invalid or has

been improperly applied to the Twin Span. Because the Coast Guard is allegedly poised to grant

the NITC/DRIC’s permit application, DIBC also has moved for preliminary injunctive relief.

See Mot. for Prelim. Inj. [Dkt. 143].

A. Statutory Framework for Navigational Permits

A bit of history is necessary to understand the dispute. In a series of Rivers and

Harbors Acts in the 19th century, Congress delegated to the War Department 1 the authority to

regulate navigable waters in the United States. One of the first of these statutes, enacted in 1880,

directed the War Department to remove sunken vessels from waters to ensure their navigability.

See Act of June 14, 1880, ch. 211, § 4, 21 Stat. 197 (1880). Four years later, Congress

1

Established in 1789, the War Department existed until 1947, when its title was changed to

Department of the Army, and it was combined with the Departments of the Navy and Air Force

to form the National Military Establishment. See Act of July 26, 1947, ch. 343, § 205(a), 61

Stat. 501 (1947) (repealed by Act of Aug. 10, 1956, ch. 1041, § 53, 70A Stat. 641 (1956)). The

National Military Establishment was renamed the Department of Defense in 1949. See Act of

Aug. 10, 1949, ch. 412, 63 Stat. 592 (1949).

2

authorized the War Department to issue permits for approved bridges over navigable waters. See

Act of July 5, 1884, ch. 229, § 8, 23 Stat. 133, 148 (1884) (empowering Secretary of War to

review bridge proposals for projects that might obstruct navigation).

In 1899, Congress prohibited the construction of any new bridge extending over

navigable waters without prior congressional approval. See Rivers and Harbors Act of 1899

(1899 Act), ch. 425, § 9, 30 Stat. 1121, 1151 (now codified at 33 U.S.C. § 401). 2 The 1899 Act

provided that:

[I]t shall not be lawful to construct or commence the construction

of any bridge, dam, dike, or causeway over or in any port,

roadstead, haven, harbor, canal, navigable river, or other navigable

water of the United States until the consent of Congress to the

building of such structures shall have been obtained and until the

plans for the same shall have been submitted to and approved by

the Chief of Engineers and the Secretary of War.

Id. By its terms, the 1899 Act applied to domestic and international bridges.

Notably, the 1899 Act required Congress to approve each and every proposed

bridge over navigable waters during a time of extensive national growth and economic

development. Congress established a process for the approval of bridge construction plans in

1906. See 1906 Bridge Act, ch. 1130, § 1, 34 Stat. 84 (1906) (now codified at 33 U.S.C. §§ 491–

498). The 1906 Bridge Act established uniform rules regarding the construction and operation of

congressionally-authorized bridges over navigable waters. At its core, the 1906 Bridge Act

ordered that bridges authorized by Congress

shall not be built or commenced until the plans and specifications

for its construction, together with such drawings of the proposed

2

The 1899 Act exempted from the requirement of prior congressional approval those

“waterways the navigable portions of which lie wholly within the limits of a single State,” for

which approval could be obtained from the State Legislature. See 1899 Act, ch. 425, § 9, 30

Stat. 1121, 1151 (now codified at 33 U.S.C. § 401). Thus, the 1899 Act was directed at bridges

affecting either interstate or foreign navigation.

3

construction and such map of the proposed location as may be

required for a full understanding of the subject, have been

submitted to the Secretary of War and Chief of Engineers for their

approval, nor until they shall have approved such plans and

specifications and the location of such bridge and accessory

works[.]

Id.

Thus, in 1906, Congress gave the Secretary of War and Chief of Engineers

statutory authority to assess and approve proposed bridge plans. The 1906 Bridge Act was the

last congressional enactment concerning international bridges until 1972, long after Congress

had approved the Ambassador Bridge in 1921.

In 1946, Congress enacted the General Bridge Act of 1946, currently codified at

33 U.S.C. §§ 525–534. The General Bridge Act of 1946 removed Congress from the process of

approving individual domestic bridges and authorized all such bridges subject only to approval

by the War Department. See Sisselman v. Smith, 432 F.2d 750, 753 (3d Cir. 1970) (holding that,

with respect to domestic bridges, “[t]he General Bridge Authority Act was clearly intended to

end piecemeal Congressional supervision of bridge construction by delegation of Congressional

authority to an expert administrative agency”). However, international bridges remained subject

only to the 1906 Bridge Act. See 33 U.S.C. § 531 (providing that the General Bridge Act of

1946 “shall not be construed to authorize the construction of any bridge which will connect the

United States, or any Territory or possession of the United States, with any foreign country”).

In its most recent statute on bridges over navigable waters, Congress enacted the

International Bridge Act of 1972, 33 U.S.C. §§ 535–535i. By this enactment, Congress removed

itself from the business of bridge approvals and gave advance consent to international bridges,

subject to compliance with the 1906 Bridge Act, approval by the foreign government and U.S.

federal officials, and compliance with all applicable technical requirements. 33 U.S.C. § 535.

4

Over time, Congress also has shifted the authority to approve bridges over

navigable waters to different executive departments and constituent agencies. The War

Department initially had been tasked with approving the plans, specifications, and locations of

bridges. See 1906 Bridge Act, ch. 1130, § 1, 34 Stat. 84 (1906) (now codified at 33 U.S.C.

§ 491–498). The War Department existed until 1947, when the National Security Act of 1947

changed its title to the Department of the Army. See Act July 26, 1947, ch. 343, § 205(a), 61

Stat. 501 (repealed by Act of August 10, 1956, ch.1041, § 53, 70A Stat. 641). Thereafter, the

Army Corp of Engineers was charged with reviewing and approving bridge permit applications.

See id. In 1967, Congress created the Department of Transportation and transferred the Coast

Guard to that newly-created Department. 49 U.S.C. § 1655(b) (1970). As part of the

Transportation Act, Congress also transferred all authority to review and approve bridge permits

from the Army Corps of Engineers to the Coast Guard. Id. § 1655(g) (1970). The Coast Guard

remained within the Department of Transportation until 2002, when Congress transferred the

Coast Guard and its authorities, functions, and personnel to the Department of Homeland

Security (DHS). 6 U.S.C. § 468(b), (c). The Coast Guard is now a constituent agency of DHS

with exclusive authority over navigational permits for bridges over domestic and international

navigable waters. See 6 U.S.C. § 468(c).

B. Regulatory Framework for Navigational Permits

The Coast Guard has inherited rules and promulgated regulations concerning the

“[l]ocations and clearances of bridges and causeways over the navigable waters.” See 33 C.F.R.

§ 114.01(a)(1). As explained by the Coast Guard:

The several bridge laws . . . are intended to prevent any

interference with navigable waters of the United States . . . except

by express permission of the United States. The decision as to

whether a bridge permit or a drawbridge operation regulation will

be issued or promulgated must rest primarily upon the effect of the

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proposed action on navigation to assure that the action provides for

the reasonable needs of navigation after full consideration of the

effect of the proposed action on the human environment. The

Coast Guard is not responsible for any other permits that the

applicant may need from other federal, state, or local agencies and

issuance of a bridge permit does not affect flood control projects or

other governmental programs.

33 C.F.R. § 114.10.

The parties dispute the scope of, and statutory authority for, a Coast Guard

regulation entitled “Necessary Primary Authority,” most particularly its last sentence:

For bridges constructed by State or municipal agencies, the

primary authority will be presumed without proof. If the law of

the State requires a license for or approval of the bridge from a

constituted State agency, a copy of such license or approval will be

required and may be accepted as evidence of the primary authority.

If there is no State regulation of bridges in navigable waters, the

necessary primary authority may be that granted in the charter of a

corporation, or the authority inherent in the ownership of the land

on which the structure is placed. The applicant will in such cases

be required to furnish an extract from the charter, or a statement of

ownership. Special care will be taken that Federal approval is not

granted when there is doubt of the right of the applicant to

construct and utilize the bridge.

33 C.F.R. § 115.05 (emphasis added). Part 115 of Title 33 is titled “Bridge Locations and

Clearances; Administrative Procedures.” It identifies its statutory authority as the 1899 Act, the

1906 Bridge Act, the General Bridge Act of 1946, and the 1972 International Bridge Act. See id.

The parties dispute the meaning and scope of 33 C.F.R. § 115.05. While DIBC contends that the

regulation applies exclusively to domestic bridges under the 1946 General Bridge Act, see Pls.

MSJ [Dkt. 96-1] at 4, 3 the Coast Guard responds that it applies to both domestic and

international bridges under the 1906 Bridge Act, see Fed. Defs. Opp’n to MSJ [Dkt. 106] at 29–

33.

3

All page references to the parties’ motions correspond to the conventions supplied in briefing,

not those supplied by the electronic case-filing (ECF) system.

6

Regulation 115.05 was not adopted in isolation. The War Department published

its predecessor on September 11, 1946:

For works constructed by State or municipal agencies, the primary

authority will be presumed without proof. If the law of the State

requires a license for or approval of the work from a constituted

State agency, a copy of such license or approval will be required

and may be accepted as evidence of the primary authority. If there

be no State regulation of structures in navigable waters, the

necessary primary authority may be that granted in the charter of a

corporation, or the authority inherent in the ownership of the land

on which the structure is placed. The applicant will in such cases

be required to furnish an extract from the charter, or a statement of

ownership. Especial care will be taken that Federal approval is

not granted when there is doubt of the right of the builder to

construct and utilize the work.

33 C.F.R. § 209.345 (1946) (emphasis added). Part 209 of Title 33 was titled “Rules Relating to

Administrative Procedure.” Regulation 209.120 provided that “the builder of a bridge must file

an application . . . . [showing] . . . the waterway and location of the bridge; citation to the act of

Congress or the State legislature authorizing the bridge; and be accompanied by a map of the

location and plans of the bridge showing these features which affect navigation . . . .” In

addition, 33 C.F.R. § 209.330 (1946) explained that:

(a) The decision as to whether a permit will be issued must rest

primarily upon the effect of the proposed work on navigation.

However, in cases where the structure is unobjectionable from

the standpoint of navigation but when State or local authorities

decline to give their consent to the work, it is not usual for the

Department actually to issue a permit. This is for the reason

that while the instrument merely expresses assent so far as

concerns the public rights of navigation, it practically becomes

of no value in the event of opposition by State or local

authority and may be regarded by such authority as an act of

discourtesy. In such cases the applicant is informed that the

structure is unobjectionable from the standpoint of navigation

and that permit would be issued were the consent of the local

authority also forthcoming.

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(b) In cases of conflicting property rights the Department cannot

undertake to adjudicate rival claims.

Id. Thus, the predecessor War Department rules warned that local opposition might prevent a

bridge proponent from acquiring a navigational permit.

In addition to 33 C.F.R. § 115.05, the Coast Guard has imposed other regulatory

requirements on the permit application process. For instance, when the Coast Guard receives a

navigational permit application, “the District Commander verifies the authority for construction

of the bridge, reviews the application and plans for sufficiency, ascertains the views of local

authorities and other interested parties, and ensures that the application complies with relevant

environmental laws, regulations, and orders.” 33 C.F.R. § 115.60(a).

C. The Ambassador Bridge and Proposed Twin Span

The American Transit Company (ATC), predecessor to DIBC, was established in

1920 to build a suspension bridge between Detroit, Michigan and Ontario, Canada. Congress

approved the bridge construction project in 1921 and enacted a statute providing that “the

consent of Congress is hereby granted to American Transit Company, its successors and assigns,

to construct, maintain, and operate a bridge and approaches thereto across Detroit River at a

point suitable to the interests of navigation, within or near the city limits of Detroit, Wayne

County, Michigan, in accordance with the provisions of” the 1906 Bridge Act. Act of March 4,

1921, ch. 167, § 1, 41 Stat. 1439 (1921).

In 1927, ATC transferred all of its rights and assets to DIBC, which, in turn,

merged into the present-day DIBC in 1979. ATC’s corporate charter states that its purpose is to

“carry on the construction, operation and development of bridges, tunnels, approaches and

accessories thereto, and all allied projects as may be required or as may be hereinafter

mentioned.” Pls. MSJ on Counts 1, 3, 6, and 7 of Third Am. Compl. [Dkt. 133], Ex. 12 (ATC

8

Articles of Incorporation) [Dkt. 133-16] at 3. 4 Canada also enacted legislation to approve

construction of the Ambassador Bridge on the Canadian side of the Detroit River. See Mot. for

Prelim. Inj. [Dkt. 143], Ex. 3 (CTC Act) [Dkt. 143-10] at 3. Construction of the Ambassador

Bridge was completed in 1929, and the Bridge first opened for traffic on November 11, 1929.

Second Am. Compl. [Dkt. 83] ¶ 69.

According to the Second Amended Complaint, the legislation enacted by Canada

had the effect, under Canadian law, of giving the Canadian Transit Company (CTC) an exclusive

franchise “to operate its facilities and collect tolls or fares and to exclude competition as long as

the [B]ridge remains useful.” Id. ¶ 77. 5 The Second Amended Complaint also alleges that

“[e]xclusivity of a toll bridge franchise is breached under Canadian law if a competing bridge

diverts traffic from the franchisee,” which means that any new bridge “must be placed at

sufficient distance . . . to avoid competition . . . .” Id. ¶ 79. DIBC further alleges that the statute

granting the Bridge Company the right to “construct, maintain, and operate” its bridge under

U.S. law, see Act of Mar. 4, 1921, ch. 167, § 1, 41 Stat. 1439 (1921), contains no termination

date. From this history, DIBC claims “a perpetual and exclusive right of franchise to build,

operate, maintain, and collect tolls on a bridge across the Detroit River . . . .” Second Am.

Compl. ¶ 63 (emphasis added).

4

Page references to the parties’ exhibits are based on the conventions supplied by the ECF

system.

5

On April 5, 2013, the Court directed the parties to brief Count IV, i.e., DIBC’s Administrative

Procedure Act (APA) claim against the Coast Guard. See Apr. 5, 2013 Scheduling Order

[Dkt. 90] at 2–3. DIBC filed a Third Amended Complaint on May 29, 2013, “subject to [the]

specific representation with respect to Count Four . . . that the amendments [were] not intended

to raise new issues or claims, but to ensure that the allegations are consistent with the facts as

already alleged in the [Second Amended] [C]omplaint.” Mot. for Leave to File Third Am.

Compl. [Dkt. 104] at 2. References to the Complaint, therefore, will be to the Second Amended

Complaint.

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DIBC owners now desire to build a new span directly alongside the original

Ambassador Bridge. Such construction would be completed using only private funds. DIBC

contends that most obstacles to construction have been removed, that the approach ramps for the

Twin Span have been constructed on the Canadian side, and that it:

already owns all the land between the ramp and the Detroit River

on the Canadian side. And DIBC believes that it will be able to

reach agreement with the City of Detroit to purchase an easement,

if necessary, to allow the New Span to pass over the one unowned

parcel of land 6. . . on the U.S. side after the permits to build the

New Span are in place.

Second Am. Compl. ¶ 143 (emphasis added). In other words, DIBC owns all land necessary to

build the Twin Span, but requires “air rights” over a portion of Riverside Park, Detroit that is

closed to the public due to contamination.

Despite its private funding, the Twin Span must be permitted by the Coast Guard

under the 1906 Bridge Act to avoid any impermissible impact on the navigable waters between

Detroit and Canada. The Twin Span cannot be constructed without a navigational permit. In

fact, there does not seem to be any question as to whether the Twin Span will affect navigation,

as its abutments would be on land rather than in the Detroit River. See DIBC Response to Notice

of Supp. Auth. [Dkt. 159] at 8 (“DIBC has changed its design so that no pier will be built on the

park, and the bridge will pass 70 feet over the park . . . .”).

DIBC applied for a navigational permit for the Twin Span in 2004. The Coast

Guard held public hearings and consulted with the Environmental Protection Agency (EPA),

6

The “unowned parcel of land” is owned by the City of Detroit. DIBC’s reference merely

conveys that the Bridge Company does not own land rights to the relevant portion of Riverside

Park.

10

which expressed concerns about the Twin Span’s potential impact on air quality. 7 Further

analysis and public hearings proceeded thereafter. The Coast Guard also expressed concern

about DIBC’s failure to secure an air rights easement over a portion of Riverside Park. On

March 6, 2009, the Coast Guard informed DIBC that “the issue of property ownership for the

U.S. bridge piers [would] not delay completion of the NEPA process,” but that “the issue must

be resolved prior to any [Coast Guard] permit issuance.” Fed. Defs. Opp’n to Mot. for Prelim.

Inj. [Dkt. 149], Ex. 14 (Mar. 6, 2009 Letter from Coast Guard to DIBC) [Dkt. 149-14] at 4.

The “air rights” issue is informed by recent Detroit history. After September 11,

2001, DIBC sought and received approval from the Mayor of Detroit to construct a 150-foot

buffer between the public point of access and the Ambassador Bridge to protect the structure

from potential terrorist activities. See id., Ex. 15 (Apr. 30, 2009 Letter from City of Detroit to

Coast Guard) [Dkt. 149-15] at 3. Based on this approval, DIBC constructed a fence

approximately 150 feet from the Bridge, which removed direct public access to a section of a

publicly-owned, yet undeveloped portion of Riverside Park. Between its need to protect the

Ambassador Bridge and the Mayor’s approval, DIBC construed its permission to occupy the

150-foot incursion onto Riverside Park broadly and appears to have assumed that it could readily

place Twin Span abutments there. This state of affairs did not last. In City of Detroit v.

Ambassador Bridge Co., No. 08337680 (Mich. 36th Dist. Court, Oct. 2, 2009), aff’d,

Ambassador Bridge Co. v. City of Detroit, No. 09-026059-AV (Mich. Cir. Ct. Feb. 3, 2012), 8 the

7

In part, EPA was concerned because of two Bridge-related projects: the Twin Span and the

Detroit River Gateway Project, by which new high-speed roads have connected the Bridge to

highways around Detroit instead of into City streets. See Sept. 7, 2012 Letter to the Court

[Dkt. 64], Ex. 5 (Aug. 23, 2012 Letter from EPA to Coast Guard) [Dkt. 64-5] at 1.

8

The Michigan State Court decisions are included in the record. See Fed. Defs. MTD, Ex. A

(Ambassador Bridge Co. v. City of Detroit) [Dkt. 92-1]; id., Ex. B. (City of Detroit v.

Ambassador Bridge Co.) [Dkt. 92-2].

11

Michigan courts gave the City of Detroit the right to evict DIBC from its space behind the fence

in Riverside Park, finding that DIBC merely held a license from the former Mayor that could be

terminated at any time. DIBC has responded by redesigning the Twin Span abutments so that

they will be located on land wholly owned by DIBC. However, DIBC has not acquired an air

rights easement over Riverside Park, and the City of Detroit has indicated that it is unwilling to

sell such rights to DIBC for purposes of constructing the Twin Span. See Prelim. Inj. Ex. 16 9

(Declaration of Dan Stamper (Stamper Decl.)) ¶ 21 (stating that, on October 22, 2013, “Mr.

Brown [Chief Compliance Officer for the City of Detroit] said there had been an ‘instruction’

‘from Lansing’ 10 to the City of Detroit not to sell DIBC an easement for the Riverside Air Space

and that Lansing . . . would object to any efforts by DIBC to acquire an easement for the

Riverside Air Space”); Stamper Decl., Ex. A (Nov. 7, 2013 Letter from Miller Canfield P.L.C. to

DIBC) (“After careful review of your offer, the City has asked me to inform you that the City

will not transfer any interest in [Riverside Park] to DIBC.”).

On March 2, 2010, the Coast Guard returned DIBC’s permit application on the

ground that DIBC did not own all of the necessary property rights. The Coast Guard relied on 33

C.F.R. § 115.05 to support this action.

9

See also Prelim. Inj. Exhibit List [Dkt. 160] at 2.

10

Federal Defendants dispute Mr. Stamper’s contention that “Lansing,” i.e., government officials

in the Michigan State capital, instructed Mr. Brown and other Detroit officials not to sell an air

rights easement over Riverside Park to DIBC. Fed. Defs. Notice of Supp. Auth. [Dkt. 157] at 2;

id., Ex. 1 (Declaration of Gary Brown (Brown Decl.)) [Dkt. 157-1] ¶ 9 (“I did not ask officials in

Lansing for the State’s position on a sale of the Riverside Air Space to DIBC . . . . To my

knowledge there was never an instruction from Lansing not to sell DIBC an easement for the

Riverside Air Space.”). This dispute is immaterial to the issues at hand.

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D. Procedural History

This suit was filed on March 22, 2010, against the Coast Guard, the Department

of Homeland Security, the Federal Highway Administration (FHWA), and the Government of

Canada. See Compl. [Dkt. 1] ¶¶ 17–20. As originally filed, the Complaint alleged that the Coast

Guard had violated the Administrative Procedure Act (APA), 5 U.S.C. §§ 553, 701–706, by

refusing to issue a navigational permit for the Twin Span. Compl. ¶¶ 203–210. Federal

Defendants moved to dismiss on July 8, 2010, and DIBC voluntarily dismissed Canada, FHWA,

and certain named officials because the Michigan Legislature appeared to have blocked

construction of the NITC/DRIC. See Nov. 29, 2011 Notice of Voluntary Dismissal [Dkt. 52].

After a period of political maneuvering that DIBC contends violated Michigan

law—an allegation that is not part of this lawsuit—NITC/DRIC supporters resumed their efforts

to build a publicly-owned bridge. Based on these renewed efforts to construct a government-

owned bridge, DIBC filed a Second Amended Complaint on February 11, 2013. See Second

Am. Compl. [Dkt. 83]. Count IV of the Second Amended Complaint alleges that the Coast

Guard was arbitrary and capricious in failing to issue a navigational permit for the Twin Span.

Id. ¶¶ 305–311. The Coast Guard moved to dismiss Count IV on April 8, 2013, see Fed. Defs.

MTD [Dkt. 92], and DIBC filed an Opposition and Cross-Motion for Summary Judgment on

April 17, 2013, see Pls. MSJ [Dkt. 96-1].

On May 29, 2013, DIBC filed its Third Amended Complaint against the U.S.

Department of State, the Secretary of State, NITC/DRIC partnership, FHWA, the Administrator

of FHWA, the Government of Canada, the Windsor-Detroit Bridge Authority, the Coast Guard,

and the Commandant of the Coast Guard. See Third Am. Compl. [Dkt. 105] ¶¶ 26–36. The

Third Amended Complaint included the same allegations of arbitrary and capricious action by

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the Coast Guard. See Third Am. Compl. ¶¶ 325–331. The motions on Count IV became ripe on

June 21, 2013. See Fed. Defs. Opp’n to MSJ [Dkt. 106]; Pls. Reply to MSJ [Dkt. 110].

On March 7, 2014, DIBC filed a Motion for a Preliminary Injunction, which

argued that DIBC is likely to succeed on the merits of its claims that (1) the Coast Guard has

violated Plaintiffs’ statutory right to construct, maintain, and operate a bridge by returning

DIBC’s application for a navigational permit; (2) the Coast Guard was arbitrary and capricious in

its refusal to grant an amendment to DIBC’s 1927 navigational permit for the proposed Twin

Span; and (3) the Coast Guard is violating DIBC’s Equal Protection rights under the U.S.

Constitution by favoring a publicly-owned bridge over Plaintiffs’ privately-owned Twin Span.

The Court held a preliminary injunction hearing on April 30, 2014, during which

the parties argued the merits of the legal principles underlying DIBC’s request for injunctive

relief. 11 See Apr. 30, 2014 Minute Entry. The Court continued the preliminary injunction

hearing to May 1, 2014, to hear additional evidence and argument concerning DIBC’s claims of

likelihood of success on the merits and irreparable harm. See May 1, 2014 Minute Entry. The

parties’ merits arguments focused primarily on Count IV of the Second Amended Complaint.

DIBC’s Motion for a Preliminary Injunction was fully briefed on May 15, 2014. See Mot. for

Prelim. Inj. [Dkt. 143]; Fed. Defs. Opp’n to Mot. for Prelim. Inj. [Dkt. 149]; DIBC Reply to Mot.

for Prelim. Inj. [Dkt. 151]; Fed. Defs. Notice of Supp. Auth. [Dkt. 157]; DIBC Response to

Notice of Supp. Auth. [Dkt. 159]. Because the preliminary injunction hearing included an

11

Counsel for Canada argued that Canada should not be required to brief and argue DIBC’s

pending motion because Canada is immune from suit under the Foreign Sovereign Immunities

Act (FSIA), 28 U.S.C. §§ 1602 et seq. The Court notified counsel for Canada that the

preliminary injunction hearing would be limited to the dispute between DIBC and the U.S. Coast

Guard and that this dispute required immediate consideration due to DIBC’s request for

preliminary injunctive relief.

14

extensive discussion on the merits of Count IV, the Court resolves both pending motions at this

time.

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6).

A complaint must be sufficient “to give a defendant fair notice of what the . . . claim is and the

grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff’s

obligation to provide the grounds for his entitlement to relief “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. To

survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true,

to state a claim for relief that is “plausible on its face.” Id. at 570. A court must treat the

complaint’s factual allegations as true, “even if doubtful in fact.” Twombly, 550 U.S. at 555.

But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009).

“Unlike motions to dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), factual challenges are not permitted under 12(b)(6) and the Court may only consider

the facts alleged in the complaint, any documents attached as exhibits thereto, and matters

subject to judicial notice in weighing the merits of the motion.” Kursar v. Transp. Sec. Admin.,

581 F. Supp. 2d 7, 14 (D.D.C. 2008), aff’d, 442 F. App’x 565 (D.C. Cir. 2011). When a

document is referred to in a complaint and is central to a plaintiff’s claim, the court may consider

15

the document without converting the motion to dismiss into one for summary judgment.

Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999).

B. Federal Rule of Civil Procedure 56

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall

be granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly

granted against a party who “after adequate time for discovery and upon motion . . . fails to make

a showing sufficient to establish the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986).

In ruling on a motion for summary judgment, the court must draw all justifiable

inferences in the nonmoving party’s favor. Anderson, 477 U.S. at 255. A nonmoving party,

however, must establish more than the “mere existence of a scintilla of evidence” in support of

its position. Id. at 252. In addition, if the evidence “is merely colorable, or is not significantly

probative, summary judgment may be granted.” Id. at 249–50 (internal citations omitted).

C. Administrative Procedure Act

DIBC alleges that the Coast Guard was arbitrary and capricious in its refusal to

grant a navigational permit for the Twin Span based on “opposition from Canadian officials and

FHWA rather than the statutory criteria for issuing a permit to build the bridge under the 1906

Bridges Act . . . .” Third. Am. Compl. ¶ 326; see Pls. MSJ at 37–54. Plaintiffs claim that the

Coast Guard has “refused to process and has returned the Ambassador Bridge’s application for a

16

permit and a FONSI 12 for the . . . New Span for improper reasons.” Third Am. Compl. ¶ 326.

This argument presents two familiar administrative-law inquiries: (1) whether the Coast Guard

acted within the confines of the authority delegated by Congress; and (2) whether there was a

rational basis for its actions.

1. The Chevron Review Standard

DIBC’s argument that the Coast Guard has acted ultra vires is premised on three

basic tenets of administrative law. First, “an agency’s power is no greater than that delegated to

it by Congress.” Lyng v. Payne, 476 U.S. 926, 937 (1986); see also Transohio Sav. Bank v. Dir.,

Office of Thrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992). Second, agency actions beyond

delegated authority are ultra vires and should be invalidated. Transohio, 967 F.2d at 621. Third,

courts look to an agency’s enabling statute and subsequent legislation to determine whether the

agency has acted within the bounds of its authority. Univ. of D.C. Faculty Ass’n/NEA v. D.C.

Fin. Responsibility & Mgmt. Assistance Auth., 163 F.3d 616, 620–21 (D.C. Cir. 1998)

(explaining that ultra vires claims require courts to review the relevant statutory materials to

determine whether “Congress intended the [agency] to have the power that it exercised when it

[acted]”).

When reviewing an agency’s interpretation of its enabling statute and the laws it

administers, courts are guided by “the principles of Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984).” Mount Royal Joint Venture v. Kempthorne, 477

F.3d 745, 754 (D.C. Cir. 2007). Chevron sets forth a two-step inquiry. The initial question is

whether “Congress has directly spoken to the precise question at issue.” Chevron, 467 U.S. at

843. If so, then “that is the end of the matter” because both courts and agencies “must give

12

A FONSI, or “Finding of No Significant Impact,” satisfies an agency’s documentation

requirements under the National Environmental Protection Act (NEPA), 42 U.S.C. § 4332(2)(C).

17

effect to the unambiguously expressed intent of Congress.” Id. at 842–43. To decide whether

Congress has addressed the precise question at issue, a reviewing court applies “‘the traditional

tools of statutory construction.’” Fin. Planning Ass’n v. SEC, 482 F.3d 481, 487 (D.C. Cir.

2007) (quoting Chevron, 467 U.S. at 843 n.9). It analyzes “the text, structure, and the overall

statutory scheme, as well as the problem Congress sought to solve.” Id. (citing PDK Labs. Inc.

v. DEA, 362 F.3d 786, 796 (D.C. Cir. 2004); Sierra Club v. EPA, 294 F.3d 155, 161 (D.C. Cir.

2002)). When the statute is clear, the text controls and no deference is extended to an agency’s

interpretation in conflict with the text. Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 882

(2011).

If the statute is ambiguous or silent on an issue, a court proceeds to the second

step of the Chevron analysis and determines whether the agency’s interpretation is based on a

permissible construction of the statute. Chevron, 467 U.S. at 843. Under Chevron Step 2, a

court determines the level of deference due to the agency’s interpretation of the law it

administers. See Mount Royal Joint Venture, 477 F.3d at 754. Where “an agency enunciates its

interpretation through notice-and-comment rule-making or formal adjudication, [courts] give the

agency’s interpretation Chevron deference.” Id. at 754 (citing United States v. Mead Corp., 533

U.S. 218, 230–31 (2001)). That is, an agency’s interpretation that is permissible and reasonable

receives controlling weight, 13 id., “even if the agency’s reading differs from what the court

believes is the best statutory interpretation,” see Nat’l Cable & Telecomm. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005). Such broad deference is particularly warranted when

the regulations at issue “concern[] a complex and highly technical regulatory program.” Thomas

13

An interpretation is permissible and reasonable if it is not arbitrary, capricious, or manifestly

contrary to the statute. Mount Royal Joint Venture v. Kempthorne, 477 F.3d at 754.

18

Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994) (internal quotation marks and citation

omitted).

2. Arbitrary and Capricious Review

DIBC contends that the Coast Guard’s refusal to process the Twin Span permit

application was arbitrary, capricious, and not in accord with the law in violation of § 706(2)(A)

of the APA. See Tourus Records, Inc. v. DEA, 259 F.3d 731, 736 (D.C. Cir. 2001). The basic

legal tenets here are also longstanding and clear. In determining whether an action was arbitrary

and capricious, a reviewing court “must consider whether the [agency’s] decision was based on a

consideration of the relevant factors and whether there has been a clear error of judgment.”

Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989) (internal quotation marks and

citation omitted). At a minimum, the agency must have considered relevant data and articulated

an explanation establishing a “rational connection between the facts found and the choice made.”

Bowen v. Am. Hosp. Ass’n, 476 U.S. 610, 626 (1986) (internal quotation marks and citation

omitted); see also Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C. Cir. 1993) (“The

requirement that agency action not be arbitrary or capricious includes a requirement that the

agency adequately explain its result.”).

An agency action usually is arbitrary or capricious if:

the agency has relied on factors which Congress has not intended it

to consider, entirely failed to consider an important aspect of the

problem, offered an explanation for its decision that runs counter

to the evidence before the agency, or is so implausible that it could

not be ascribed to a difference in view or the product of agency

expertise.

Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43

(1983). As the Supreme Court has explained, “the scope of review under the ‘arbitrary and

capricious’ standard is narrow and a court is not to substitute its judgment for that of the

19

agency.” Id. Rather, agency action is normally “entitled to a presumption of regularity.”

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971), abrogated on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977).

D. Jurisdiction and Venue

This Court has federal-question jurisdiction under 28 U.S.C. § 1331. Venue is

proper under 28 U.S.C. § 1391(e)(1).

III. ANALYSIS

Federal Defendants have moved to dismiss Count IV of the Second Amended

Complaint, arguing that DIBC has failed to challenge final agency action. DIBC opposes and

moves for summary judgment, alleging that the Coast Guard’s denial of a navigational permit

was arbitrary and capricious final agency action or, in the alternative, constitutes agency action

unlawfully withheld.

Because DIBC has included Count IV as one of its theories for immediate

injunctive relief, see Mot. for Prelim. Inj. at 26–31, the Court addresses both the request for

preliminary injunctive relief and the merits of Count IV. As described below, DIBC’s request

for preliminary injunctive relief will be denied for lack of irreparable harm. With respect to

Count IV, the Court will grant Federal Defendants’ Motion to Dismiss and deny DIBC’s Motion

for Summary Judgment.

A. Preliminary Injunction

DIBC contends that immediate judicial intervention is required to preserve the

status quo in the “race” between the proposed Twin Span and the proposed government-owned

NITC/DRIC. Pls. Reply to Mot. for Prelim. Inj. [Dkt. 151] at 2 (“If the Coast Guard grants the

NITC/DRIC a navigational permit, it will have provided the last federal approval needed for that

unlawful bridge, and will have catapulted the NITC/DRIC ahead of the Twin Span in what the

20

[U.S.] State Department itself described as a ‘race’ between the two projects.”). Federal

Defendants oppose DIBC’s motion for preliminary injunctive relief, arguing that DIBC’s claims

are not ripe for review or fail to satisfy the requirements for preliminary injunctive relief.

Canada also has expressed its concern that “[DIBC’s] Motion actually seeks a declaratory

judgment and injunction against Her Majesty the Queen in Right of Canada and the Windsor-

Detroit Bridge Authority . . . because an order blocking the [NITC/DRIC] Bridge from any

advancement, and a declaratory judgment on any alleged Special Agreement, will affect all

Defendants equally.” Canada Opp’n to Mot. for Prelim. Inj. [Dkt. 148] at 1.

On April 30, 2014, DIBC offered the testimony of Matthew Moroun, Vice

Chairman of both DIBC and CTC. Mr. Moroun testified that if the government constructs the

NITC/DRIC bridge, DIBC will not be able to secure funding for the Twin Span project because

there is no economic justification for two additional bridges based on current traffic projections.

Thus, Mr. Moroun elaborated on his declaration, which stated that, “[b]y preventing DIBC and

CTC from building their Twin Span, Defendants are causing DIBC and CTC to suffer harm right

now in ways that are difficult to measure but are nonetheless real.” Mot. for Prelim. Inj.,

Declaration of Matthew Moroun (Moroun Decl.) [Dkt. 143-5] ¶ 10.

A district court may grant a preliminary injunction “to preserve the relative

positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451

U.S. 390, 395 (1981). An injunction is an equitable remedy, so its issuance falls within the

sound discretion of the district court. See Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944). To

obtain a preliminary injunction, the movant must establish that:

(a) it is likely to succeed on the merits;

21

(b) it is likely to suffer irreparable harm in the absence of

preliminary relief;

(c) the balance of equities tips in its favor; and

(d) an injunction is in the public interest.

Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). The D.C. Circuit has further instructed that “the

movant has the burden to show that all four factors . . . weigh in favor of the injunction.” Davis

v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).

Whether DIBC will suffer irreparable harm absent an injunction is an important

issue, particularly because the central purpose of a preliminary injunction is to maintain the

relative positions of the parties pending a final determination on the merits. See Dist. 50, United

Mine Workers v. Int’l Union, United Mine Workers, 412 F.2d 165, 168 (D.C. Cir. 1969) (“The

usual role of a preliminary injunction is to preserve the status quo pending the outcome of

litigation.”). If the Coast Guard grants the NITC/DRIC navigational permit, it would disrupt the

status quo insofar as both bridge proponents are currently awaiting Coast Guard approval. The

parties dispute whether a navigational permit is the last regulatory barrier before construction of

the NITC/DRIC, but the Coast Guard does not seriously dispute its willingness to issue a

navigational permit to the government-owned bridge.

Upon close examination, the Court finds that DIBC’s contentions are unduly

speculative and, therefore, insufficient to justify preliminary injunctive relief. DIBC’s inability

to obtain private capital if a government bridge is perceived to be ahead of it presents a real and

imminent harm, but the degree of this harm is not clear. Mr. Moroun avers that DIBC will suffer

irreparable harm if the Coast Guard “prevents” DIBC from building the Twin Span. See Moroun

Decl. ¶ 10. On this record, the Court cannot reliably determine whether the Coast Guard will

22

issue a navigational permit to the NITC/DRIC. The Coast Guard has not issued a decision on the

NITC/DRIC permit application, and DIBC knows neither the substance nor the result of any

forthcoming recommendation. See Mot. for Prelim. Inj., Declaration of Heather King (King

Decl.) [Dkt. 143-4] ¶ 7 (“[Coast Guard] Commander Pavilonis explained that it was his

understanding that the Cleveland office had finished its review of the NITC/DRIC application,

and was ‘about to’ send its recommendation to Coast Guard headquarters.” (emphasis added));

id. ¶ 8 (stating that Plaintiffs’ counsel “believe[s] that the Coast Guard’s decision regarding the

NITC/DRIC application may be imminent”).

Moreover, DIBC offers no evidence that a navigational permit would make the

construction of the NITC/DRIC inevitable or imminent. Both the Twin Span and the

NITC/DRIC are embroiled in significant legislative maneuvering and funding negotiations that

must be resolved before construction of their respective bridges can begin. At the preliminary

injunction hearing, government counsel represented that Canada will buy the necessary land in

Michigan and fund the entire NITC/DRIC project, because of opposition to the expenditure in

the Michigan legislature. This alleged financial arrangement could prompt the State of Michigan

or its citizens to contest various aspects of the NITC/DRIC project, including whether the State

of Michigan can exercise eminent domain to condemn private property when a foreign

government acts as purchaser. This concern is heightened by the fact that it is unclear whether

Canada or the State of Michigan will pay for a U.S. Customs Plaza for the NITC/DRIC. Future

legal or practical issues unrelated to actual construction of the NITC/DRIC are foreseeable, and

these issues could lead the Coast Guard to doubt whether the State of Michigan can acquire the

necessary property rights. Such doubt and speculation significantly undermine DIBC’s claim of

irreparable harm.

23

DIBC occupies a tenuous financial position because of the proposed construction

of the NITC/DRIC bridge. DIBC intends to build the Twin Span to divert current traffic and

retain toll revenue while the Bridge Company performs restorative work on the Ambassador

Bridge. DIBC contends that if it is prevented from building the Twin Span, the Coast Guard will

have destroyed DIBC’s statutory right to maintain the current Ambassador Bridge. DIBC’s

argument transcends mere economic harm, as the Bridge Company contends that “[b]y

preventing Plaintiffs from improving their bridge crossing for their actual and prospective

customers, Defendants are harming Plaintiffs’ competitive position in a way that is impossible to

measure, but is nonetheless real and irreparable.” Mot. for Prelim. Inj. at 38 (citing Bayer

HealthCare, LLC v. U.S. Food & Drug Admin., 942 F. Supp. 2d 17, 26 (D.D.C. 2013)).

In Bayer HealthCare, the Court found that a drug manufacturer would suffer

irreparable harm if a less expensive drug with the same efficacy entered the market. 942 F.

Supp. 2d at 25–26. This Court, relying in part on the imminent decline in Bayer’s market share,

price erosion, loss of customer goodwill, and loss of research and development funding, issued a

temporary restraining order vacating FDA’s approval of a competing drug product. Id. at 27.

Unlike Bayer, however, the Coast Guard has not engaged in any final agency action that would

pose an imminent or immediate threat to DIBC’s market share. Even if the Coast Guard were to

issue a navigational permit to the NITC/DRIC, it is not certain that DIBC would suffer any

immediate harm or impact. DIBC concedes in briefing that irreparable harm would occur upon

construction of the NITC/DRIC. See Mot. for Prelim. Inj. at 24 (noting that construction of the

NITC/DRIC will prevent Plaintiffs from exercising their statutory franchise rights). But

construction of the NITC/DRIC is by no means imminent or inevitable; instead, the building of

the proposed government bridge qualifies as the sort of potential but uncertain injury that

24

precludes preliminary injunctive relief. See Wisc. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.

Cir. 1985) (“Injunctive relief ‘will not be granted against something merely feared as liable to

occur at some indefinite time.’” (quoting Connecticut v. Massachusetts, 282 U.S. 660, 674

(1931))). Since the movant bears the burden of demonstrating all four factors, see Davis, 571

F.3d at 1292, the Court will deny DIBC’s Motion for a Preliminary Injunction for lack of

irreparable harm.

B. Count IV

Count IV involves a dispute between the parties as to whether DIBC is required to

acquire an air rights easement over Riverside Park before the Coast Guard issues a navigational

permit for the Twin Span. For purposes of this litigation, the Court attempted to bring the Coast

Guard and DIBC to resolution by ordering DIBC to resubmit its application for a navigational

permit and ordering the Coast Guard to process the application “at least until the Coast Guard

decides whether an Environmental Assessment and Finding of No Significant Impact would

satisfy the National Environmental Protection Act, 42 U.S.C. § 4321, et seq., 14 without respect to

whether or not [DIBC] owns land or air rights” to build the Twin Span. See Order in

Furtherance of Settlement [Dkt. 60] at 1.

In response to the Court’s Order, the Coast Guard identified “two obstacles” to

permit issuance: (1) the Michigan State Historical Preservation Office (SHPO) had requested

more information related to the impact of the Twin Span on historic resources, i.e., the eighty-

14

The National Environmental Protection Act (NEPA) requires agencies to prepare a detailed,

comprehensive environmental impact statement (EIS) if a proposal constitutes a “major Federal

action[ ] significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(2)(C).

However, an agency may first issue an Environmental Assessment (EA), which is a shorter and

less-detailed document, to determine whether an EIS is required. If, based on the EA, the agency

finds that an EIS is not required, the agency may issue a “Finding Of No Significant Impact”

(FONSI), which fulfills NEPA’s documentation requirements. See TOMAC v. Norton, 433 F.3d

852, 857 (D.C. Cir. 2006).

25

year-old Ambassador Bridge, and (2) EPA had expressed concerns regarding the Twin Span’s air

quality impacts. See Fed. Defs. Opp’n to EA/FONSI Processing [Dkt. 66] at 4. After working

with both agencies, the Coast Guard reported that “both the SHPO and the EPA agreed that an

EA/FONSI may be appropriate” and each agency recommended additional public notice and

comment. Id. EPA has confirmed in writing that the Twin Span “will not cause or contribute to

a violation” of the relevant air quality standards, which resolves EPA’s outstanding regulatory

issues with the Twin Span. Pls. Reply to MSJ, Ex. 16 (Aug. 22, 2012 Letter from EPA to Coast

Guard) [Dkt. 110-16] at 2. SHPO also has confirmed in writing that it needed no further

consultation and that “the current [Memorandum of Agreement to preserve the Ambassador

Bridge] is sufficient to mitigate impacts from the proposed redesign.” Fed. Defs. Opp’n to

EA/FONSI Processing [Dkt. 66], Ex. A (July 23, 2012 SHPO Email) [Dkt. 66-1] at 2.

Accordingly, the Coast Guard found that a FONSI may be appropriate, but recommended a

notice and comment period.

Despite the Coast Guard’s conclusion that a FONSI would satisfy NEPA and that

the Twin Span would not impermissibly impact historic resources, the Agency continued to insist

that its regulations bar it from issuing a navigational permit to DIBC because DIBC could not

demonstrate that it owns the necessary property interests, i.e., an air rights easement over

Riverside Park. Having failed to settle this matter, the parties resumed briefing on legal motions

in this case. As discussed below, the Court finds that the Coast Guard’s decision to return the

Twin Span permit application is ripe for review, but that the Coast Guard has proffered

reasonable interpretations of its enabling statutes and 33 C.F.R. § 115.05.

26

1. Ripeness

The Administrative Procedure Act conditions judicial intervention on the issuance

of a final agency decision. 5 U.S.C. § 704 (“Agency action made reviewable by statute and final

agency action for which there is no other adequate remedy in a court are subject to judicial

review.”); see Reliable Automatic Sprinkler Co. v. Consumer Prod. Safety Comm’n, 324 F.3d

726, 731 (D.C. Cir. 2003) (“If there was no final agency action here, there is no doubt that

appellant would lack a cause of action under the APA.”). The Coast Guard argues that it has not

issued a final decision on DIBC’s permit application, and thus, there has been no action subject

to challenge under the APA.

For agency action to be considered “final,” two conditions must be satisfied.

First, the action “must mark the ‘consummation’ of the agency’s decisionmaking process—it

must not be of a merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177–

78 (1997) (internal citation omitted). Second, the action “must be one by which ‘rights or

obligations have been determined,’ or from which ‘legal consequences will flow.’” Id. at 178

(quoting Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S.

62, 71 (1970)). Judicial review only extends to administrative actions in which both conditions

have been met. See Ctr. for Auto Safety & Pub. Citizen, Inc., v. Nat’l Highway Traffic Safety

Admin., 452 F.3d 798, 807–11 (D.C. Cir. 2006).

An agency’s denial of a permit application can be just as final as a decision

granting a permit. “To determine finality, courts must decide ‘whether the agency’s position is

definitive and whether it has a direct and immediate effect on the day-to-day business of the

parties challenging the action.’” Her Majesty the Queen in Right of Ontario v. EPA, 912 F.2d

1525, 1531 (D.C. Cir. 1990) (quoting Ciba-Geigy Corp. v. EPA, 801 F.2d 430, 435–36 (D.C.

27

Cir. 1986) (internal alteration and other citation omitted)). “The inquiry seeks to distinguish a

tentative agency position from the situation where the agency views its deliberative process as

sufficiently final to demand compliance with its announced position.” Id. (internal quotation

marks and citation omitted).

The record shows that the Coast Guard initially treated DIBC’s permit application

as “complete,” see Pls. MSJ at 12, but now insists that it was incomplete because the Coast

Guard relied on DIBC assurances that the Bridge Company would acquire an air rights easement

over Riverside Park. Due to DIBC’s failure to acquire an air rights easement, the Coast Guard

returned the Bridge Company’s “incomplete” application in 2010, and then informed DIBC and

the Court in November 2012 that it could not complete its processing of the navigational permit

for the same reason.

The Court finds that the Coast Guard’s decision to return DIBC’s permit

application constituted final agency action. While the Coast Guard did not issue a final decision

in the binary sense, i.e., a grant or denial of the navigational permit, its decision to return DIBC’s

permit application cannot be described as interlocutory. Instead, the Coast Guard has decided

with finality that DIBC must secure an air rights easement to receive a navigational permit for

the Twin Span. This determination has conclusively established the Coast Guard’s position that

DIBC must purchase an air rights easement over Riverside Park before the Agency will issue a

navigational permit. Because the Coast Guard’s return of DIBC’s “incomplete” application

imposed a real delay and cost on the Bridge Company, see Pls. Prelim. Inj. Hearing Ex. 17

(offering $5,000,000 to the City of Detroit for an air rights easement immediately adjacent to the

west side of the Ambassador Bridge), it is a decision “from which legal consequences . . . flow.”

Bennett, 520 U.S. at 178 (internal quotation marks omitted). Thus, the relevant inquiry is not

28

whether the Coast Guard has finally decided DIBC’s permit application, but rather, whether it

has announced a position that requires immediate compliance from DIBC in order to continue

the regulatory process. On this record, there can be no doubt that the Coast Guard has

announced such a position. As a result, Count IV of the Second Amended Complaint is ripe for

judicial review under 5 U.S.C. § 704.

2. Statutory Authority

On the merits, DIBC contests the Coast Guard’s theory that the Agency’s

“Necessary Primary Authority” regulation, 33 C.F.R. § 115.05, requires applicants to obtain all

necessary property rights before the issuance of a navigational permit. First, DIBC argues that

Congress never provided the Coast Guard or its predecessors with statutory authority to impose

additional regulatory burdens on international bridges. In the alternative, DIBC argues that the

Coast Guard’s application of 33 C.F.R. § 115.05 to the Twin Span is arbitrary, capricious, or

otherwise not in accordance with law. These arguments prompt a Chevron analysis of the Coast

Guard’s interpretation of its statutory authority. If the Coast Guard has statutory authority to

adopt regulations on international bridges, the second question is whether the Coast Guard has

proffered a reasonable interpretation of its own regulation. The Court begins with the statutory

inquiry.

As a threshold matter, the parties contest which statute provides the basis for 33

C.F.R. § 115.05. While DIBC argues that the “Necessary Primary Authority” regulation was

promulgated under the 1946 General Bridge Act, which applies only to domestic bridges, the

Coast Guard counters that the regulation represented prior practices for all bridges and was

published to comply with requirements of the Administrative Procedure Act.

29

The War Department issued rules governing the navigational permit application

process in September 1946. As stated in its Federal Register notice, the War Department

published its rules concerning navigation as required by the Administrative Procedure Act,

which had been adopted three months earlier in June 1946:

Pursuant to the provisions of section 3 of the Administrative Procedure

Act of June 11, 1946 (Public Law 404-79th Congress), the following

rules describing the organization of that part of the Corps of Engineers,

War Department, concerned with the administration of laws for the

protection and preservation of navigation and navigable waters of the

United States, and rules of practice and procedure and substantive rules

adopted in connection therewith, are hereby stated and published for the

information of the public[.]

11 Fed. Reg. 177A–806. Section 3 of the APA required federal agencies to publish their existing

rules after the APA became effective on September 11, 1946. Administrative Procedure Act, ch.

324, § 3, 60 Stat. 238 (1946); see also Urban A. Lavery, The Federal Register—Official

Publication for Administrative Regulations, Etc., Its Historical Background and Its Present-Day

Meaning for The Practicing Lawyer, 7 F.R.D. 625, 626–27 (1948) (“During the calendar year

1946 alone (when the ‘Administrative Procedure Act’ of that year required re-publication of all

existing Agency Rules and Orders) more than 22,000 documents were published in ‘The Federal

Register.’” (citation omitted)).

The rules published by the War Department “intended to show what the

Department requires and how the Department acts in a given type of case.” 33 C.F.R. § 209.110

(1946). Thus, the Part 209 regulations publicized pre-existing rules and practices adopted and

followed by the War Department in reviewing applications and approving bridges over navigable

waters, including both domestic inter-state bridges and international bridges.

In discussing its Part 209 regulations, the War Department stated that “[a] bridge

cannot lawfully be constructed across any navigable waterway of the United States until

30

legislative authority has been obtained and the plans have been approved by the Chief of

Engineers and the Secretary of War.” 33 C.F.R. § 209.120(a)(1) (1946) (emphasis added). In its

section on “General policies on issuance of permits,” 33 C.F.R. § 209.330, the War Department

advised that “[t]he decision as to whether a permit will be issued must rest primarily upon the

effect of the proposed work on navigation,” but that “in cases where the structure is

unobjectionable from the standpoint of navigation but [] State or local authorities decline to give

their consent for the work, it is not usual for the Department actually to issue a permit.” Id.

§ 209.330(a). The War Department also warned that “[i]n cases of conflicting property rights the

Department cannot undertake to adjudicate rival claims.” Id. § 209.330(b). There is no

indication that the War Department rules distinguished between domestic and international

bridges, both of which had been subject to the same approval process under the 1906 Bridge Act.

DIBC argues that the only statute that can be read to authorize a regulation like

Regulation 115.05 is the General Bridge Act of 1946, which granted discretion to the War

Department to impose any conditions relating to the maintenance and operation of interstate

domestic bridge structures. See 33 U.S.C. § 525(b). The Court disagrees. While the language of

congressional delegation has changed, it is clear that the 1906 Bridge Act contemplated expert

oversight and, more importantly, that the War Department had adopted internal practices to carry

out its responsibilities under the 1906 Bridge Act, which it formally published as “regulations”

after the APA was adopted in 1946. See 1906 Bridge Act, ch. 1130, § 1, 34 Stat. 84 (1906)

(granting authority to approve plans, specifications, and the proposed location for bridges).

While the matter is not entirely free from doubt, the record indicates that the regulations

published by the War Department in 1946 represented practices that applied to domestic and

international bridges.

31

The Coast Guard inherited rules governing navigational permit applications from

the War Department. See 32 Fed. Reg. 5611 (reciting the delegation of authority from the

Secretary of Transportation to the Coast Guard and stating that the Coast Guard would continue

in effect all prior orders, determinations, rules, and regulations). This delegation of authority

listed the statutory authorities by which the Coast Guard would oversee bridges, including the

1906 Bridge Act and the General Bridge Act of 1946. Using its delegated rulemaking authority,

the Coast Guard reorganized and revised the prior regulations and published regulations relating

to bridge permits at 33 C.F.R. Parts 114 and 115. Compare 33 C.F.R. §§ 114.01–115.70 (2013)

with 33 C.F.R. §§ 209.110–209.520 (1946). Given this statutory history, the Court finds that the

“Necessary Primary Authority” regulation was promulgated under the authorities of both the

1906 Bridge Act, which applied to domestic and international bridges, and the 1946 General

Bridge Act, which applies only to domestic bridges. 15 As a result, the Court proceeds to a

Chevron analysis to determine whether 33 C.F.R. § 115.05 is reasonably authorized under that

statutory enactment.

DIBC contends that, “[e]ven if Regulation 115.05 was intended to implement the

War Department’s powers to grant navigational permits under the 1906 Bridge Act to

Congressionally-approved, international bridges, there is no way to read that statute as

authorizing the regulation.” Pls. MSJ at 40 (emphasis in original). The Coast Guard insists that

33 C.F.R. § 115.05 is authorized under the Agency’s statutory authority to regulate the plans,

specifications, and location of bridges.

15

To bolster its authority to issue 33 C.F.R. § 115.05, the Coast Guard erroneously relies on the

authority granted to the Commandant to “issue rules, orders, and instructions, not inconsistent

with law, relating to the organization, internal administration, and personnel of the Coast Guard.”

14 U.S.C. § 632 (1949). This statute allows the Commandant to establish rules for the internal

operations of the Coast Guard; it does not authorize the Commandant to engage in rulemaking

affecting the public or, more directly, with regard to bridges.

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The 1906 Bridge Act prohibits the construction of any congressionally-authorized

bridge until

the plans and specifications for its construction, together with such

drawings of the proposed construction and such map of the

proposed location as may be required for a full understanding of

the subject, have been submitted to the Secretary of War and Chief

of Engineers for their approval, nor until they shall have approved

such plans and specifications and the location of such bridge and

accessory works.

1906 Bridge Act, ch. 1130, § 1, 34 Stat. 84 (1906). DIBC argues that this language “says

nothing about the authority of the agency charged with granting that permit to do anything other

than assess the ‘plans and specifications,’ and to ensure that the proposed bridge shall not

‘unreasonably obstruct the free navigation of the waters over which it is constructed.” Pls. MSJ

at 41–42 (citing 33 U.S.C. § 491) (emphasis in original). In other words, DIBC contends that the

Coast Guard is foreclosed from relying on rules that concern any topic other than navigability.

See id. at 42 (“There is simply no statutory text in the 1906 Bridge Act that can be read to

authorize the agency . . . to [require] that permit applications must demonstrate ‘primary

authority’ as a condition for obtaining a permit under the Act.”). The Coast Guard counters that

the “primary authority” requirement in 33 C.F.R. § 115.05 falls within the Coast Guard’s

statutory authority to consider the “location” of bridges.

The statutory text does not unambiguously dictate or foreclose either parties’

interpretation. The 1906 Bridge Act provided that even congressionally-authorized bridges were

subject to War Department review of the “plans and specifications” and the “proposed location,”

while also requiring War Department “approval.” See 1906 Bridge Act, ch. 1130, § 1, 34 Stat.

84 (1906). What the 1906 Bridge Act did not state clearly is whether these matters were

designed to interact, such that the plans, specifications, and proposed locations were factors for

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receiving War Department approval. Moreover, the statute is ambiguous as to how the

“proposed location” should be defined. While that term could be read to require notice of a

proposed location so that any effect on navigability could be analyzed, it could also be

interpreted as requiring a definite location upon which the proponent has a legal right to build so

that a navigability assessment is reserved for bridges that are likely to be constructed. The Court

finds that the 1906 Bridge Act is ambiguous, particularly on the latter point, and therefore

considers whether the “Necessary Primary Authority” regulation is a reasonable interpretation of

the Coast Guard’s statutory authority.

Where “an agency enunciates its interpretation through notice-and-comment rule-

making or formal adjudication, [courts] give the agency’s interpretation Chevron deference.”

Mount Royal Joint Venture, 477 F.3d at 754 (citing United States v. Mead Corp., 533 U.S. 218,

230–31 (2001)). The “Necessary Primary Authority” regulation was not promulgated through

notice-and-comment rulemaking in 1946. However, “particular deference” is owed to “an

agency interpretation of ‘longstanding’ duration.” See Barnhart v. Walton, 535 U.S. 212, 220

(2002) (quoting North Haven Bd. of Ed. v. Bell, 456 U.S. 512, 522 n.12 (1982)). An agency’s

interpretation that is permissible and reasonable receives controlling weight, Mount Royal Joint

Venture, 477 F.3d at 754, “even if the agency’s reading differs from what the court believes is

the best statutory interpretation,” see Nat’l Cable & Telecomm. Ass’n, 545 U.S. at 980.

The Coast Guard and its predecessor, the War Department, have interpreted the

1906 Bridge Act as authorizing proof of “Necessary Primary Authority” for international and

domestic bridge builders. 33 C.F.R. § 115.05 specifically provides that

[i]f the law of the State requires a license for or approval of the

bridge from a constituted State agency, a copy of such license or

approval will be required and may be accepted as evidence of the

primary authority. If there is no State regulation of bridges in

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navigable waters, the necessary primary authority may be that

granted in the charter of a corporation, or the authority inherent in

the ownership of the land on which the structure is placed. Special

care will be taken that Federal approval is not granted when there

is doubt of the right of the applicant to construct and utilize the

bridge.

33 C.F.R. § 115.05. In other words, 33 C.F.R. § 115.05 permits the Coast Guard to consider

State approval or, in the alternative, some charter or land ownership sufficient to find that the

proponent would actually be able to construct a bridge at the proposed location. Regulation

115.05 does not strictly require “Necessary Primary Authority” in the sense of some authority

that is tantamount to congressional approval. However, the exercise of judgment and expertise is

what Congress contemplated when it charged the War Department with the task of approving

individual bridge specifications. See Cnty. of Los Angeles v. Shalala, 192 F.3d 1005, 1016 (D.C.

Cir. 1999) (“Where . . . Congress enacts an ambiguous provision within a statute entrusted to the

agency’s expertise, it has ‘implicitly delegated to the agency the power to fill those gaps.’”

(quoting Nat’l Fuel Gas Supply Corp. v. FERC, 811 F.2d 1563, 1569 (D.C. Cir. 1987))). The

Coast Guard has provided a reasonable interpretation of the 1906 Bridge Act, which allows it to

approve the plans, specifications, and location of a proposed bridge. Whether local property

rights are considered part of the “plan,” “specification,” or “location,” the 1906 Bridge Act

authorizes the Coast Guard to interpret these terms as part of its authority to approve applications

for navigational permits. Therefore, the Court concludes that Congress provided the Coast

Guard with statutory authority to condition navigational permits on the acquisition of necessary

property rights.

3. 33 C.F.R. § 115.05

A separate but related inquiry is whether the Coast Guard has advanced a

reasonable interpretation of its own regulation. An agency’s interpretation of its own regulations

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is entitled to deference when it “reflect[s] the agency’s fair and considered judgment on the

matter in question.” Auer v. Robbins, 519 U.S. 452, 462 (1997); accord City of Dania Beach v.

FAA, 628 F.3d 581, 587 (D.C. Cir. 2010) (noting that an agency’s interpretation of its regulation

is “entitled to deference so long as it reflects the agency’s fair and considered judgment on the

matter in question, not just its litigating position” (emphasis in original) (internal quotation

marks and citation omitted)). DIBC argues that, even if the Coast Guard regulation is authorized

by statute, the Coast Guard has been arbitrary and capricious in its application of that regulation

to the Twin Span navigational permit. DIBC further contends that the Coast Guard’s

interpretation of its own regulation as requiring the acquisition of all necessary property rights is

inconsistent with the Agency’s past practices. The Coast Guard responds that DIBC cannot

challenge Regulation 115.05 because the Agency has not issued a final decision on DIBC’s

navigational permit application. However, as discussed above, the Coast Guard’s return of

DIBC’s permit application constituted final agency action. See supra 26–29. Since the Coast

Guard’s regulation is within the scope of its statutory authority, the Court considers DIBC’s as-

applied challenge to 33 C.F.R. § 115.05.

DIBC alleges that the Coast Guard has neglected to apply Regulation 115.05 in

the same manner to other bridge proposals. Specifically, DIBC alleges that the Coast Guard

granted a navigational permit for the Peace Bridge in Buffalo, New York, despite the

proponent’s failure to hold all necessary property rights and “heated opposition” to the bridge

expansion from the City of Buffalo. Pls. MSJ at 51–52. The Coast Guard responds that the

Court should disregard the Agency’s decision regarding the Peace Bridge because “[e]ach

agency decision is unique with its own analysis and administrative record.” Fed. Defs. Opp’n to

MSJ at 50. The Coast Guard also counters that the Peace Bridge is distinguishable because the

36

proponents of that bridge—the Buffalo and Fort Erie Public Bridge Authority—was established

by the New York state legislature as a public benefit corporation. Id. In contrast, DIBC is a

private entity with no power of eminent domain. Id. at 51; see also Fed. Defs. Notice of Supp.

Auth. at 5 n.5 (“Plaintiffs no longer possess powers of eminent domain, and they need to satisfy

the requirements of 33 C.F.R. § 115.05.”).

The Coast Guard’s distinction between public and private entities is persuasive, as

it explains why the Coast Guard may express doubt as to a private proponent’s right to build a

bridge, while appearing to overlook similar deficiencies in government applications. The Coast

Guard’s distinction between public and private entities also explains the Agency’s contrary

approach to DIBC’s first application for a navigational permit in the 1920’s for the Ambassador

Bridge. While DIBC contends that its predecessor, ATC, had not obtained all the necessary

property rights when the War Department issued a navigational permit for the Ambassador

Bridge, at that time, DIBC was treated as a quasi-governmental entity that possessed certain

powers of eminent domain. Detroit Int’l Bridge Co. v. Commodities Export Co., 760 N.W. 2d

565, 568–69 (Mich. Ct. App. 2008) (describing a Michigan law that provided that bridge

companies had “the power to condemn any and all real estate . . . deemed necessary for the

purposes of such corporation”) (citing Detroit Int’l Bridge Co. v. Am. Seed Co., 249 Mich. 289,

294 (Mich. Sup. Ct. 1930)); but see Commodities Export Co. v. Detroit Int’l Bridge Co., 695

F.3d 518, 527 n.7 (6th Cir. 2012) (holding that, while DIBC “appears to be in the habit of

unilaterally condemning land that it does not own,” the Bridge Company must be treated as a

private entity lacking authority to condemn land). On this record, the Court finds that the Coast

Guard has not applied 33 C.F.R. § 115.05 in an arbitrary and capricious manner. To the

contrary, the Coast Guard’s application of Regulation 115.05 hinges on a public-private

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distinction that concerns an applicant’s authority to condemn land to obtain necessary property

rights. In the absence of contrary evidence, the Coast Guard reasonably presumes that a State

can exercise eminent domain to condemn any private property rights to construct a bridge,

whereas private entities must prove property ownership. The Court finds that this is a reasonable

interpretation of Regulation 115.05.

It is no great leap from the principles articulated by the War Department in 1946

to the Coast Guard’s “Necessary Primary Authority” regulation, which provides that “[s]pecial

care will be taken that Federal approval is not granted when there is doubt of the right of the

applicant to construct and utilize the bridge.” 33 C.F.R. § 115.05. The Court cannot find that the

Coast Guard’s interpretation of 33 C.F.R. § 115.05 is arbitrary, capricious, or otherwise not in

accordance with law. The objections of local authorities to selling land from Riverside Park 16 to

DIBC fit within the scope of the War Department’s rules under the 1906 Bridge Act. Without an

air rights easement over Riverside Park, there is “doubt of the right of [DIBC] to construct”

within the meaning of 33 C.F.R. § 115.05. DIBC’s exclusive focus on the title of 33 C.F.R.

§ 115.05—Necessary Primary Authority—ignores the substance of that regulation and its

intended effect. The regulation does not require competing primary authority in a sense that

would rival congressional authorization. See Fed. Defs. Notice of Supp. Auth. at 6 (noting that

the Bridge Permit Application Guide “distinguishes between the legislative authority required

and the primary authority required to enable construction of the bridge” (emphasis in original));

16

The Detroit City Council has resolved that the City acquired and improved Riverside Park

with grants from the Natural Park Service Land Water Conservation Fund and the Michigan

Natural Resources Trust Fund. Therefore, “the State of Michigan and the Federal Government

would have to give permission for the sale, and there has to be a substitution of like park land or

the Park cannot be sold.” See Fed. Defs. Opp’n to Mot. for Prelim. Inj., Ex. 15 (Apr. 30, 2009

Letter for City of Detroit to Coast Guard) [Dkt. 149-15] at 4. Whether this status affects “air

rights” over Riverside Park is not at issue here.

38

see also id., Ex. 5 (Coast Guard Bridge Permit Application Guide) [Dkt. 157-5] at 13 (providing

that, in certain cases, 33 C.F.R. § 115.05 will be satisfied where the applicant provides “an

extract from the charter and evidence of sufficient real estate interest to allow construction of the

bridge” (emphasis added)). Moreover, the War Department’s predecessor rules cautioned that,

“in cases where the structure is unobjectionable from the standpoint of navigation but when State

or local authorities decline to give their consent to the work, it is not usual for the Department

actually to issue a permit.” 33 C.F.R. § 209.330(a).

DIBC further contends that the Coast Guard has been arbitrary and capricious in

applying 33 C.F.R. § 115.05 to a congressionally-authorized international bridge. See Pls. MSJ

at 49; Pls. Response to Fed. Defs. Notice of Supp. Auth. at 1 (arguing that the Government has

failed to show “Regulation 115.05 . . . ever being applied to any international bridge—let alone

being applied in a way that required the applicant to show ‘primary authority’ . . . by

demonstrating ownership of every single possible property right or easement that may be needed

to build the proposed bridge.”). The Coast Guard responds that, in many cases, the applicant

submits proof of property ownership, which resolves the issue of compliance under 33 C.F.R.

§ 115.05. However, whenever there is doubt of an applicant’s ability to obtain all of the

necessary property rights, the Coast Guard contends that it “follows up” to determine how 33

C.F.R. § 115.05 will be satisfied. DIBC’s contention that there is no precedent for the Coast

Guard refusing to issue a navigational permit to an international bridge under 33 C.F.R. § 115.05

misses the Coast Guard’s central argument, namely, that there has rarely been occasion for the

issue to arise because most international bridge proponents either obtain the necessary property

rights before permit issuance or have the power of condemnation. The Coast Guard contends

that, where a bridge proponent lacks the necessary property rights, the issues are resolved

39

through informal processes far short of litigation. Fed. Defs. Notice of Supp. Auth. at 6–7.

DIBC has not presented any facts that cast doubt on the Coast Guard’s assertions. The Coast

Guard has not been arbitrary and capricious in its application of 33 C.F.R. § 115.05 to DIBC.

Finally, DIBC argues that, to the extent the Coast Guard can require some

additional primary authority to construct a bridge, that requirement must be satisfied by DIBC’s

charter. See 33 C.F.R. § 115.05 (“If there be no State regulation of bridges in navigable waters,

the necessary primary authority may be that granted in the charter of a corporation . . . .”

(emphasis added)). The Coast Guard has rejected this approach on the ground that “the agency

. . . needs information relating to DIBC’s authority to build its proposed bridge in the location in

which it proposes before it can engage the gears of public process and governmental approval.”

Fed. Defs. Opp’n to MSJ at 49 (emphasis added). DIBC offers no explanation as to why the

Coast Guard’s insistence on a navigational permit application tied to a specific location is

arbitrary and capricious. As a result, the Court finds that the Coast Guard has proffered a

reasonable explanation as to why DIBC’s charter does not satisfy 33 C.F.R. § 115.05. See Motor

Vehicle Mfrs. Ass’n, 463 U.S. at 43 (“[T]he agency must examine the relevant data and articulate

a satisfactory explanation for its action including a ‘rational connection between the facts found

and the choice made.’” (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168

(1962))). The Court concludes that the Coast Guard has proffered a reasonable interpretation of

its own regulation.

IV. CONCLUSION

For the reasons set forth above, DIBC’s Motion for a Preliminary Injunction, Dkt.

143, will be denied for lack of irreparable harm. Federal Defendants’ Motion to Dismiss Count

IV, Dkt. 92, will be granted and judgment will be entered in favor of Federal Defendants on

40

Count IV. DIBC’s Cross-Motion for Summary Judgment on Count IV, Dkt. 96, will be denied.

DIBC’s Motion to Take Judicial Notice, Dkt. 114, and Motion for Order Requesting Oral

Argument, Dkt. 121, will be denied as moot. A memorializing Order accompanies this Opinion.

Date: May 30, 2014 /s/

ROSEMARY M. COLLYER

United States District Judge

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