Oral argument — Detroit International Bridge v. Government of Canada

Case number 15-5086, Detroit International Bridge Company, a Michigan Corporation et al. appellant v. Government of Canada et al. Mr. Hume for the appellant, Ms. Wang for the appellee. Good morning and may it please the court. This is Hamish Hume for the appellant, Detroit International Bridge Company. Your Honors, the appellant in this case challenges the legality and propriety of the Coast Guard's rejection of their application for an amendment to their navigation permit under the 1906 Bridge Act for a twin span that they seek to build to the Ambassador Bridge from Detroit to Canada. That permit and the amendment to the permit is issued under the 1906 Bridge Act. So your position is, as I understand it, that since the Ambassador Bridge has been completed and you have this congressional charter and there's no question that the twin bridge is not going to interfere with navigation because it's virtually at the same site, that that's the end of the authorization that the Coast Guard has? Yes, Judge Rogers. The purpose is navigation. There is no navigational issue. We should have the permit. So the way I read your brief is that basically the Coast Guard's been holding this up for 10 years, but you would agree that there have been certain things beyond the Coast Guard's control that have held this up, namely the city of Detroit. So once you resolve that, and I gather it is in the process of about to be resolved, but your position is literally that the regulation that the Coast Guard has adopted to the extent it's going beyond what we just discussed based on the statute, that regulation is, the way your brief is called, ultra-violated, even though it has that last sentence in it. Judge Rogers, I think our first position would be that there is no possible reasonable reading of the plain text of that regulation that could require property ownership to show necessary primary authority. What about that last sentence? The last sentence, Your Honor, has to be read in the context of both the statute and the regulation in which it is found. That last sentence says care should be taken not to issue a permit when there's doubt about the right of the applicant. That is referring to... To construct and utilize. Yes, Your Honor, absolutely. The last sentence is referring to whether there is doubt about any of the things that that regulation has listed as ways to show primary authority. If there is doubt about the applicant's primary authority, it says, then care should be taken. And I really think the following context, Judge Rogers, which was not fully ventilated in that brief, is critical to understanding that last sentence. That regulation, there are a number of points I wish to make about that regulation, but primary authority is generally legislative authorization to build the bridge. And there are four points about primary authority that I think if this court addresses, it is impossible, literally impossible, to affirm a lower court decision with a Coast Guard decision. Those four points, very briefly, are first, both the statute and the regulations recognize that primary authority is either state or federal. What's all the language about inherent in the ownership? Judge Edwards, that is an alternative, very clearly in the plain text of that regulation. That is a last resort alternative way, if you have nothing else, if there is... That's not the way the regulation reads. Judge Edwards... I don't understand your argument that once you have the federal approval, that's the end of the case. There's nothing in the statute or the regulation that would give any intelligent reader on first look that, reach that conclusion. That's just the starting point. There are a number of other things that have to be finished before the Coast Guard will give a permit. Including, even the statute uses the word property, and the regulation itself doesn't say anything about, if you have federal approval, you're done. It talks about, you don't have the state, so now you're into, you've got to show some kind of ownership. I just don't understand your argument. And then, as Judge Rogers says, the last sentence in the regulations just kind of puts the nail in the coffin, as far as I can see. Let me try to address the question, Judge Edwards. If you read Regulation 11505, the regulation that Your Honor is referring to, it is impossible to read it as giving you, as defining... It's impossible to read Regulation 11505 as defining necessary primary authority for an international bridge. Impossible. There is nothing in that regulation that could give you primary authority to build an international bridge, unless you accept our definition of charter, which includes a federal statute, in which case we win the case, because we satisfy the regulation. The regulation, if you have a state license to build a bridge, the regulation makes crystal clear you do not need primary authority. You do not need property ownership. If you have a state license to build a bridge, the regulation makes crystal clear you do not need property. That regulation makes clear that the... Using the charter of a corporation, it doesn't say federal charter. Your Honor, if you reject our view of charter as a federal statute, as a grant of rights, that simply confirms that there is no way to read Regulation 11505 as defining what necessary primary authority is for an international bridge. None of the things listed there. You could have one of them, you could have all of them. None of them could allow you to build an international bridge. You must have congressional authorization to build an international bridge. Let me try this a different way, just for my own satisfaction. Understand this. You have the property swap now, right? You have a property swap with Detroit. We now have a city council approval for a property swap agreement. You have the air rights now, right? Yes, Your Honor. I don't think the deal has technically closed, but we have the agreement with city council approval. You acknowledge that the agency has to check the environmental issues before it issues a permit, right? Yes, but we would submit that they have done so. Done so when? They issued a FONSI after public hearings in 2009. But you changed the design. The design that we are seeking approval of today is exactly the same as what... You mean you're going back to the old design because... Correct. Well, but you changed the design so they couldn't have done it back then. But we have now, because of the land swap deal, Judge Edwards, we've gone back to the original design that was attachment B to the FONSI. I'll ask them, but does an agency not have an opportunity to look again to be sure? You're the one who switched. You're the one, you conveniently started your argument, and you did this in the brief too, and it's really kind of astonishing. You're the one who asked that this be held in abeyance. You're the one who put this off track. You're the one who implicitly, implicitly acknowledged that you did not have what you needed because you first assumed you had property rights, and then it turned out you didn't, and you said to the agency, hold it in abeyance, and now everything's off track, and now you're angry, but that was your doing. Judge Edwards, thanks for asking the question because it's a point we didn't address in our reply, so I can address it now. The letter that the government cited to where we said, oh, hold it in abeyance, they do cite to it, but they didn't make an argument out of it. I didn't hear the argument. Exactly. So thank you. And the argument, we did not say hold it in abeyance because we didn't have the property. We said hold it in abeyance because we thought, and I think we immediately changed our mind, and there was a confusion over it, that the NEPA process needed to be separated, the NEPA process, the environmental process, from the permitting process, but it didn't have to do with the property ownership. But nonetheless, you said hold it in abeyance. But within a month of that, and I hope my colleagues may be able to give me the citation, the Coast Guard recognized that that request to hold it in abeyance had been rescinded. So this is a confused back and forth that becomes immaterial. There's some citation that will show that within a month of your asking that it be held in abeyance, the Coast Guard said it's no longer being held in abeyance because I sure missed it. We didn't give it to you, Your Honor. I apologize because they didn't seem to base their argument on that. They did mention it in their fact statement. Within a very short period of time, the Coast Guard recognized that there was that letter saying request to hold in abeyance was rescinded and was taken off the table. So we were proceeding, and then they rejected the application. So you're saying, in your view, the only thing that's—you're saying there's no environmental issue left to be considered? We are saying that, Your Honor. Did the district court accept that? I think the district court did accept that because Judge Collier— I don't understand. If the district court accepted that, then there would be nothing left because you have the swap. I didn't think the district court accepted that. That doesn't mean that she was right or wrong, but I— Sorry. Go ahead. The district court said that the sole issue for the rejection of our application was our failure to obtain the property, not the fault. She actually pushed the Coast Guard to complete all environmental reviews, even on the alternative design, got the EPA to say there are no issues. The swap in the air rights came after the district court decided it? Yes. Yes, Your Honor. I'll just ask the government on the environmental, so I have their view. Can I ask you about the statute? Yes, Judge O'Connell. No, I don't see anything in the statute that says—the statute being Section 491 that resolves this case in the direction you're asking us to resolve it. With some ellipses, it says, when authority is granted by Congress, such bridge shall not be built until the secretary shall approve such plans and the location of such bridge, period. Those are the key words. That strike—now, that may be, some people might say, an over-delegation. That's a delegation without limitation. It doesn't in any way tell the secretary what the secretary has to do, except look at the location. And I don't see why what they've done here isn't looking at the location and saying, well, look, you want to build a bridge in a place where you don't have the property rights. In the beginning, you didn't have the land rights. Later, you didn't have the air rights. Is there anything in the words of this statute which supports your proposition? I believe there is, Your Honor. I do understand the question, Chief Judge Garland. I would start—let's start with 491, where Your Honor started. I'll grant you that it does not say, thou shalt do X to the Coast Guard. But what it does say very specifically, Chief Judge Garland, is what must the applicant submit for approval. Yes, the applicant must submit the map, et cetera, et cetera. But that's all fine. That's their submission. But you can't build until the secretary approved those plans, those specifications, and the location. Yes. So— That's right. And we're not asking—my proposition, Chief Judge Garland, is that the statute is very specific about what must be submitted for a full understanding of the subject. The plans— Oh, three words. Sorry, go ahead. Sorry. The specifications, the locations, and for a full understanding of such map and such drawings as are necessary. It says—and those are the things that must be— That may be required for a full understanding of the subject. And the secretary's position is, full understanding of the subject includes, by the way, do you own the land that's necessary for somebody to step onto that bridge? Just—maybe I just need to just complete the point, because the proposition is what we're submitting. Sorry, a little louder. The proposition that I am submitting to the Court is that it's very specific what must be submitted for that full understanding. Plans and specifications, maps and drawings, not ownership. So they are adding something that must be submitted. That's the first point. Well, they're not adding—they're not necessarily adding. You could say they're not adding that, but the secretary has the right to approve. And it doesn't say on what grounds. It just says it can approve—the secretary has to approve the location before he can build. Would you at least agree this is ambiguous? You think this is crystal clear? I don't actually think it's ambiguous. What I would concede is that there isn't a clear statement somewhere in the statute that says, once this happens, the agency shall, must, thou shalt. But I actually think the statute, when you read it carefully, is very clear on what must be submitted and doesn't say—or anything else you might need. Secondly, Your Honor, two more points, if I may. The statute does make clear in Section 494 that the key thing is make sure it doesn't mess up navigation. Well, that's— That's Section 33 U.S.C. 494. That is certainly one thing that you can mess up navigation. It doesn't say it's the only thing. It doesn't say this is the ground on which you're to give permits. Nothing like that, right? But the regulations, Section— So now you're driving to the regulations. I actually think the regulations help us tremendously. Not only do they help you, you'd say, without them you lose because the statute itself doesn't get you there. No, I wouldn't say that, Your Honor, because I don't think there's anything— to authorize the agency to impose ad hoc additional requirements, sometimes but not always. And it's crystal clear they do not always require proper— Now we're not even talking about—now we're talking about practice. Now we're not talking about the statute or the regulations. You're saying that in the past they haven't required property. They say they have. That's a different question. That's a question of sort of arbitrary and capriciousness, not a question of statutory interpretation, which is what you led with. So let's attend to the regulations. On the regulation, the title necessary primary— Yes, Your Honor, just quickly. In other words, you agree, do you not, with what the chief judge asked you, that the statute clearly authorizes or requires a look at location? Definitely it requires a look at location. I do wish to be very clear that the submission we made is very precise on location. In fact, the location was determined in 1927 by the original bridge. It's very precise, the location of the Twin Span. And the permit would only be for that location. You do not—you absolutely do not need to know about property ownership to know about location. You just need to know what does the submission say. We're going to build right here, nowhere else. And if you change that, the permit's invalid. You've got to go back, get another permit. The agency is saying, it seems logically, that it's all interesting, but if you don't have any access to that property, we're not going to issue a permit. When you read this, you've got to understand how other people would look at this. That seems an entirely reasonable position when the word property is in the statute, and the agency says, make it the worst hypothetical in the world you can think of. You will not only have no access, everyone who has anything to say about that property is set over their dead bodies before you get there. Why would an agency issue a permit in that circumstance? Your Honor, they would do it because it doesn't make sense. There are, I think, a few points in response. It doesn't make sense to require someone to go and buy everything and invest all the money before they get their navigation clearance and approval. Normally, you would do it the other way. You would invest the money after you know there's no navigation problem with your infrastructure project. Secondly, again, I do think the regulations help us. It is crystal clear, inescapably unambiguous in the regulation of 11505, that if you have a state license, you do not need the property. You do not need the property. It says, or, if you have nothing else, then look at property. I have to say, I find this, not only do I not find the regulation not crystal clear, I can barely understand it. And at some points you yourself have said it seems somewhat internally contradictory. But let me ask, let me tell you the two parts that confuse me, and then I want to talk about its origin. So the title is necessary primary authority, right? It doesn't say sufficient. It just says necessary. So even if you are 100% right about what is the primary authority here, it doesn't say, there's nothing in the regulation that says, and by the way, if you have necessary primary authority, that's all you need. It doesn't say necessary primary authority plus navigability. It just, am I right? And I've looked hard. I haven't found a regulation that says what to do with this once you have necessary primary authority. Your Honor, I'm not submitting that the entire regulations are a model of clarity. I was simply saying that one point, that one point I was making to Judge Edwards, it is clear that if you have a state license, you don't need property. It's illogical, and this was never addressed by the district court. There are a number of points we just were never addressed. Let's start with answering mine, then you can go on. I'm sorry, Your Honor. So your question is, it says necessary, not all. That's my point. It doesn't say all. You have to first, I think if you look at the words primary authority, and if you look at the statute, it's much more, it's sort of. I'm not seeing the words primary authority. Primary authority is not. I'm not seeing the words necessary authority. They're not in the statute. Primary authority in the statute at all. What the statute makes clear is that for a state intrastate bridge, section 401, you have to get your authorization from the state legislature. Can you just hold for one second? I want to be clear. Are the words primary authority in the statute? No. They're not? No, I'm sorry. Absolutely not. What I'm saying is the words authority and authorization are in the statutes. And I do think it's important to recognize that these regulations implement not only the 1906 Bridge Act, section 491, that sequence, but also the 1899 Act, section 401. Since 1899, it has been clear from the statute. You're building an international bridge, you have to have authorization from Congress. You're building a domestic bridge, a state intrastate bridge, you have to do that under the authorization of a state legislature. And when you understand that distinction, and when you also understand that 99% of all bridges are domestic, then it makes more sense why this regulation would focus on state primary authority. The Coast Guard's regulations recognize there's state primary authority and there's federal primary authority. They never say what federal primary authority is. Let me ask you some questions because they bother me. I'm sure you want to answer them for me. So the last sentence which Judge Edwards referred to in the regulation says, 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. So they say they have doubt in this case about the right to utilize the bridge. Isn't that consistent with their position? Why isn't that consistent? It's consistent with their position, but I think it's a misreading of the regulation. That's what I want to know. I just read you the last sentence. Why is it a misreading of that sentence to have doubt about the ability to utilize the bridge when you don't have the right to access the bridge because you don't own the property? Because it is clear from the first one, I think you have to read that sentence, and I think the law says, the Supreme Court has said, that you have to read a general statement that comes at the end of a series of specifics in light of those specifics. Are you telling me, just to be clear, that you don't get there with just reading this sentence? The sentence actually reads the way the government wants. It's in context that it doesn't? Is that what you're saying? I'm saying it has to be read in context, and it's clear in context that it's referring about doubt about one of the things listed in 11505, which really go beyond what the statute says. The statute says you need a legislative approval from Congress, or if it's a domestic interstate bridge, you need legislative approval from the state legislature. Then the regulation goes beyond that. It's actually permissive. By the way, you can have a state license. Maybe it's a licensing scheme or a state approval. What if you have nothing? What if there's no state regulation at all? Well, then maybe you show us your charter. Well, what if you have nothing at all, not even a charter? Okay, or. It says or as an alternative, as a last resort. Show us that maybe you own all the land. If you own all the land, then that as an alternative could be a way to do it. And then it says, but by the way, we're kind of pushing the envelope here with all these alternative ways. If it's doubtful, if it's like some dubious, ambiguous license, or like your property ownership's a bit vague, we're not going to go there. You're talking about the context. What about the 1946 version of this CFR? It gives some idea maybe of what they mean. It is the same CFR. It says, however, in cases where the structure is unobjectionable from the point of view 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. What about that? So, Your Honor, first of all, that provision is not in the current regulations. It's not what? Not in the current regulations. Not in the current, right. Okay. But you're asking us to look at a lot of history. I am. I am looking at that for the purpose of trying to understand what the regulation means. We do think the prior versions of the regulations are very helpful to us because they explain the context of what they're talking about when they talk about authority. And we would cite the court to Joint Appendix 357 and 373 in that regard. But on this point, this regulation that they point to from the old regulations, it was taken out and replaced with a sentence in 114.10 that said, Coast Guard permit doesn't give you any other local approvals. You still have to deal with any other local issues you may have. It was replaced with that sentence. So it became a friendlier regime to applicants. It changed it. Secondly, even if that regulation were still in effect, it's different from what they did here. What they did here is say, by the way, this thing is entirely incomplete. There is a necessary prerequisite to show property ownership. That's not what that regulation says. That one actually says they would tell you basically they'd give you an equivalent of a conditional permit. They'd say, here's a letter saying there's no navigation issue, but sorry you have this local problem. Until you get that sorted out, you won't get the official permit. Well, that's not what it says. It's not usual for the department actually to issue a permit. It's not saying we'll give you a conditional permit or a non-official permit. They're just saying it's not usual to give it to you. Previous sentence makes clear that they would tell you that there's no problem with navigation. They would at least give you something that would be helpful to confirm that you have no navigational issue. Had they not told you that? I thought you said everybody agrees. They just simply never disputed it. It's different from what they would have done there. Further questions? Just one point. I do get your argument about that if your client represented a state, someone with imminent domain authority, or a client with imminent domain authority, either because of your governmental nature or because Congress had given you that, the reality is that no one would rationally do what the agency is suggesting be done here because of the reason you gave. No one would purchase this land, get it all assembled, make the financial commitment, get whatever permits are required from the state, the zoning people, the air rights, until you know that you have the navigation rights. And we deal with a lot of statutory schemes where a federal agency does something, but it says this is subject to getting permission from the state, whether it's a water rights permit or something. So what I understand your argument to be is that, and FERC and the Coast Guard in its brief says this is a unique situation in the sense that they say all their cases have involved entities that have had imminent domain authority. And so they say, as I understand it, we don't want to waste our time going through this process if we're not certain that this bridge can actually be completed. So therefore, we're going to treat someone without imminent domain authority a different way. And why isn't that a rational way of looking at it? I think there are a couple of answers, Judge Rogers. First, it's inconsistent with what they actually did. It's inconsistent with what they did in this case. It's inconsistent with what they've done in other cases. I was going to ask them about those cases. All right. They can't now say that they have a rule of administrative convenience to require property ownership right up front when they didn't require it and only later, late four years into the process, did they say, okay, look, you haven't required the property yet. You're rejected. But they deemed your application to be complete in 2006. Yes. And now they're saying for administrative convenience, they would never deem something complete without proof of property ownership. So the second point I would make that's practical, Your Honor, is the city of Detroit said, come back to us. When you want to buy our property, come back to us when you have the navigation permit. Then the Coast Guard says, you want our navigation permit? Come back to us when you have the property. We were a ping-pong ball and a very unhappy game of ping-pong. Similarly, if every agency, and I think this addresses Chief Judge Garland's point about the statute and some implied discretion for the agency to add requirements because it doesn't have a vouch out in it. If every agency could say, yeah, this is what the thing says you need to give us, but we want a little bit more. We want this. We want that. We reserve the right to ask for other things, including other approvals. Then in any administrative process you have where you need multiple approvals, every agency could, by implicit authority, by implicit authority in a silent statute like 491, say, we're going to hold off until you get it from that agency, and that agency is going to hold off until you get it from this agency. You never get anywhere. I mean, it's the definition of a bureaucratic quagmire. So I think that is, by definition, irrational. Thank you, Your Honors. Good morning, Your Honors. May it please the Court. Vivian Wong for the U.S. Coast Guard. Before turning to the heart of the statutory and regulatory interpretation issues, I wanted to briefly note that the final approvals for the land swap between the City of Detroit and the bridge company are underway, and that the Coast Guard is proceeding with DBIC's application, the end result of which will be a new decision based on a changed record. That's the plan for the decision. But as I understand it, the agency's position now is that even if the City of Detroit grants all of its approvals to this land swap, the agency will still have to do some further environmental review. That's correct, Your Honor. The Coast Guard, under its principles of agency good governance, does need to assure itself that the environmental review is all in order. Why have you done that for this design? I've already done that for this design. Why does it need to be done again? Well, Your Honor, these plans were submitted in a lot of the air quality modeling analysis and other accompanying analysis were submitted years ago, and they are, by nature, outdated. And so what the Coast Guard has now done is sent its counterparts at the Environmental Protection Agency a notice saying, you know, here is the information that we submitted before. Please ensure that you don't need additional information. And if you need additional information, we will ensure the bridge company sends that to you. And so Coast Guard needs to ascertain that it is. How much longer is that going to take? That's in accordance with the EPA and the Coast Guard's general regulations. The agency gets 30 days to submit its comments to the Coast Guard. And then, assuming things are in order. How long ago did you send it to the EPA? This was within the last few weeks, Your Honor, because as the Detroit City Council only relatively recently approved the land swap, all of these things have been set in motion again. Your brief says the permits will be granted by the end of the year, could be granted. What's the deal here? What's your best guess? Could be, Your Honor. Here's a decision the Coast Guard has to make. If they delay, and we rule against them, they lose the authority forever that they claim here. If they grant the permit right away, they might move this case. And you're going to have to make that decision. But given that you're inability to tell us when, there's no reason for us to not go forward. Is there any reason for us not to go forward? Well, Your Honor, as we suggested in our motion previously made to this court, we think that it is something that we wish to bring to the court's attention is the question of whether a court is likely to be able to grant effective relief. To the extent that the court disagrees. One kind of effective relief we can grant is that never in the future can you make this argument again that property rights have to be established before you can grant a permit. But, Your Honor, that is not relief that is granted to the plaintiff. I'm sorry? That would not be relief granted to the plaintiff in this particular instance. It would eliminate that issue. And it would eliminate that issue, and they won't have to wait any longer on that issue. They want to get moving. They want to build this. Apparently it costs them money to not having it built, so they have a reason to move forward quickly. If we took the government's position that we're just going to wait whenever the government wants us to wait, we may never get a result. There's no case that says that we can put off a petitioner's right to a hearing in this court because the government says someday, somehow, some moment, eventually, don't worry about it. We will rule and may be in their direction. If the court were inclined to let the Coast Guard process play out, we would, of course, be ready to provide the court with regular updates as to the status of the process. But I understand Your Honor's concern, and I think that, indeed, if the court does wish to proceed with the case, I think that affirmance is the proper result here. The bridge company's interpretation of the statute and of the regulation conflates congressional consent to building a bridge with the detailed- Let's assume you have a strong case in the statute, that is, because it's ambiguous, and so you have some room to adopt regulations. As the chief judge said earlier, or someone said earlier, these regulations are not a model of clarity, and you smile in acknowledgment. Let me give you another starting point. Section 115.10 says, Specific time limits are inserted in all permits for the commencement of construction and completion thereof, normally three years for the start of construction. Why wouldn't a reasonable interpretation of these regulations be that all things considered, they get the permit conditionally, and if they fail on the land swap or anything else, they lose it? If the navigation, there's no question on navigation, and as far as I understand, there is no navigation question here, right? That has not been the primary issue that is tying up- No, no, no, I'm asking the question. There's no navigation issue, right? Under the plans that the Coast Guard had evaluated, that's correct that the property issues were the issue holding up the permit. The answer to the judge's question is yes. Is that correct? Because in the blue brief, they make that assertion, and in the red brief, you don't dispute it. It is my understanding that there are no particular navigation issues flagged. That's correct, Your Honor. Then why wouldn't 115.10 require you to issue a permit that's conditional, and if somehow the land swap, there's no problem with the air anymore? Well, I don't know. Let's assume that's still in battle, too. The air and property fail in three years, then the permit is rescinded by its own terms. Well, because, Your Honor, we have to read this regulatory scheme as a whole, and I think that the appropriate starting point and sort of the touchstone here is the language of 115.05 in which the Coast Guard sets forth pretty clearly that a prerequisite is that the applicant demonstrate that it possesses the necessary primary authority. And for a— What do you think primary authority means? It means that apart from issues of congressional consent, the applicant has to demonstrate that it possesses the ability and the requisite authority. The requisite authority to go ahead with— What about the language that opposing counsel points to? If the law of the state requires a license for approval from a constituted state agency, a copy of such license or approval may be accepted as evidence of the primary authority. So it doesn't say anything about the property at that stage. It says the license or approval by the state may be evidence of primary authority. Your Honor, and I think the maybe is part of the language that we should note here. And the way this 115.05 is laid out, it provides that for, for example, a state or municipal entity or a publicly chartered corporation, for instance, the Coast Guard will in those circumstances presume without proof the primary authority and the underlying logic for that. And this goes a bit back to Judge Rogers' colloquy with opposing counsel is the question of whether the entity constructing the bridge has, among other authority, the authority of eminent domain. And— Suppose the state had indicated somehow that, you know, it was not inclined to exercise that authority. The state, Your Honor? I'm talking about state powers of eminent domain. Yes, Your Honor. I think that that would be an issue that, based on the record, in that hypothetical scenario, that would be something that the Coast Guard would have to take into consideration. And here what we have is a private entity that does not have such power, and that is not— Your Honor, you said that the second sentence is a further reference to the first sentence, bridges constructed by state or municipal agencies. Is that what you're saying? The second sentence, I think, sets— Does it apply to private enterprises, the second sentence? If a private enterprise were to be constructing a bridge on the basis of state authority, I think that is a circumstance in which that sentence may come into play. But in this case, what we're looking at is whether necessary primary authority may be that granted in a charter or the authority inherent in the ownership of land. I'm not sure why the second sentence doesn't apply here. Because the bridge company here has the only paper that it has before the court in terms of its proof of this necessary primary authority. Is the authority granted by Congress in the 1920s to construct the Ambassador Bridge, and that is— Well, imagine that the state of Michigan likes their plan, and they want the bridge built, and they give their license and approval, but they still don't own the land. Is that enough? You've got a congressional approval, and you've got the state approval, but they haven't bought the land yet. In your Honor's hypothetical, the entity still remains a private entity. It's a bridge company, and they've gotten approval from Congress, and they've gotten approval from the state. There's no fight with Detroit. It's just they haven't yet bought the land from some private party, maybe, that controls the access route. Now, this says a copy of such license or approval, that is the license or approval from the state, may be accepted as evidence of the primary authority. What does that mean in that circumstance? I think that this is another instance of authority that may be necessary, but may not in and of itself be sufficient. I see. So you think that there's something else beside it. But there's no provision of the regulation that says what's sufficient. Is that the problem? Your Honor, I do think that the regulation does not by itself provide some sort of laundry list or enumerate the exact criteria, and I think this is because in all of these circumstances, the applicant is coming to the Coast Guard as either a public or private entity with different sets of circumstances. And the Coast Guard, as with any agency, is going to be making a determination based on the record before it has to take into account and factor in its decision-making all of these criteria. As such a thing as primary authority, there must be something called secondary authority. What's a secondary authority here? What does primary mean? What's the point of the adjective here? The regulations don't, as far as I'm aware, Your Honor, address secondary authority. The point of the primary authority here, I think, is an instruction to the agency to itself to assure itself that the applicant possesses the necessary rights to move forward. What's the answer to their question, why would we do that? As reasonable business people, why would we make all of those purchases and acquisitions before we know we have a permit? Because businesses, Your Honor, operate in general under regulatory schemes in which there is inherently some uncertainty as to whether all of the necessary permits from all of the necessary federal, state, municipal, international authorities. My point is, and it's not uncompelling, that this is mostly about navigation, and you should be concerned about that. And they're saying, our assumption is we will have these property rights, and then you have a three-year regulatory provision. And if you have no navigation concerns, and we are suggesting to you this is where we're going to handle whatever concerns you might have about property, why wouldn't you issue a conditional permit? Why should they expend all the time and money when you're unwilling to certify that they have passed at least the navigation portion of it? Well, Your Honor, I would not characterize this as the Coast Guard being simply unwilling to, for example, do its job. The record demonstrates that for many years, under the company's representation that it had or was about to acquire the necessary property rights, the Coast Guard was indeed expending its resources in reviewing the engineering plans, engaging with the Environmental Protection Agency to undertake the environmental analysis. And I think what's at issue here is inherently a matter of agency discretion to conduct its – to carry out its mission and its operations. Well, let's suggest that the issue is whether the applicant has notice of what is required. That is the problem. I mean, when you're hesitating with the Chief Judge as to whether the second sentence stands alone and covers private or not. I mean, when I first read it, I wondered that too, and you're hesitating. I'm not sure listening to you. I'm not sure whether these are three or four separate things here or what. It's totally unclear, so you've got a notice problem. What's an applicant supposed to figure? I think, Your Honor, the answer to that – Well, they came in, as Chief Judge Garland suggested, they came in and said the state approves. They don't have a licensing scheme, but they approve. Is that enough? You're saying, well, it says may. Okay, so then I'm a smart business person. I say, well, what's behind the may? What else are you looking for, and where does the regulation say that? To address Your Honor's concern about the uncertainty, I think that the answer is that as a practical matter, these applications don't proceed in some sort of black box. The company, the applicant, in any scenario in the Coast Guard, is in constant dialogue to figure out what the next steps are, and I think in all of that context, the applicant, as any other business person, then makes informed business decisions on how to proceed. With respect to the changing scenario on both sides, in 2006, the agency said the application was complete. Is that correct? Yes, Your Honor. At the time, it was deemed so under the bridge company's assurances to the Coast Guard that the property issues were resolved. However, in 2009, when the city of Detroit contacted the Coast Guard to inform the agency that property rights over Riverside Park would be required and that the city had no intent on selling either the land or a necessary easement, at that point, the Coast Guard went back to the bridge company and said, this seems to be a pretty fundamental problem. They did the three-year regulation perfectly, six to nine. They couldn't get it done in three years, so they read the reg, I'm assuming, and they said, no, no, let's not proceed for now. We're going to come back again. Your Honor, I think that this does go back to the language of 115.05, and that regulation makes very clear that the applicant, in certain circumstances, may be required to furnish a statement of ownership. In the final sentence, again, states that special care will be taken, that federal approval is not granted, where there is doubt of the right of the applicant to construct and utilize this bridge. This language tracks the 1946 regulation issued by the War Department, which made clear that navigation is not the only thing that the Coast Guard looks at. And in Your Honor's hypothetical scenario, where the Coast Guard should just go ahead and grant the permit without knowing these things, conditionally grant the permit, I think that under that alternative scenario, and under DBIC's sort of worldview, there would be nothing that prevents applicants from submitting several serial applications without being able to demonstrate the necessary property rights, and it would force the Coast Guard, in effect, to engage in meaningless and wasteful expenditures of resources to go through all of the review process, all of the public comment process for a bridge that may never be built. Well, look at this case. It's been a decade. If you had complied with the conditional permit approach, this administrative nightmare that you refer to would be non-existent. They'd either get the property or they wouldn't. This application process has gone on for several years, as Your Honor notes, but this was not an instance of the Coast Guard dragging its heels. It was trying to... I acknowledged up front that the 10-year period, it's not one side or the other causing the problem. There have been changes on both sides. But at least under Judge Edward's scenario, it seems... suggests that maybe that's more in line with what Congress had in mind and that the agency had in mind, and you read this regulation as talking about 99% of the cases where you're dealing with public entities that want to construct bridges. Now you have a situation of a private entity, and you say it's a unique situation, and why aren't the things that you're normally concerned about, where it's a public entity, resolved by this notion of the conditional permit, which a number of other agencies use? Your Honor, I think that the answer here is that in a case like this where the statute is not crystal clear, the agency has promulgated a regulation to fill the gaps in the regulation. We're having trouble understanding the regulation, all right? And it's not as though it says in a separate 115.05B, international bridges constructed by private party. I mean, that's the problem in part here, isn't it? Respectfully, Your Honor, I disagree that that is a problem. I think that it just goes to show that there are various scenarios under which the Coast Guard is evaluating permits and that the regulation does state clearly that unless the applicant is a state or municipality that manifestly has this authority, the applicant has to establish the rights to build the bridge. You keep emphasizing in your answer. I'm sorry. You keep emphasizing in your answer. You don't realize how many times you've said this. When you answer our questions on the regs, you say, and then we may give a permit. That's the notice problem. You're saying we're not guaranteeing anything. You're saying, yeah, there are all these scenarios, and they only result in maybe we'll give a permit. We're trying to figure out, well, what else is at stake, and when does it arise? And you're not answering it. That second sentence highlights it. And you say, yeah, I see it, but that only says we may give a permit. I take it you're relying on this last sentence, right? Special care will be taken, federal approval is not granted when there is doubt about the right of the applicant to construct and utilize the bridge. That's your notice, right? That's the notice that's being given. That's correct, Your Honor, and the Coast Guard is not trying to hide the ball here. It has been very clear all along that the issue now is the property rights issue, and that is no longer at issue, and now the Coast Guard is proceeding with finalizing environmental review so that it can move this permit decision to its finality. You're saying when we write it to us, to the court, that you have the authority to do this. There is no property or navigation issue in this case. We're at the last stages. Your assertion is the only thing we're waiting for is the finish of the environmental and we're done. That's your assertion to the court on behalf of the Coast Guard, right? Your Honor. I want to know why. No, I'm serious now because this is nonsense. This has really gone on too long. There are no property rights as far as you're concerned that are at issue unless this blows up with Detroit because the air and the property, there's a property swap and the air is no longer an issue. Navigation has never been an issue. The only issue is your final exchange with the EPA on environmental, right? That's your assertion to the court? Almost, but not precisely, Your Honor. The land swap, as explained in the Coast Guard's letter to the Bridge Company and in our brief, the land swap is still dependent on final approvals from the Michigan Department of Natural Resources and the National Park Service because it concerns certain water and land conservation areas. Those approvals are outside the Coast Guard's purview. Those are the only two conditions we're talking about. The swap has to be finally approved and the environmental. Everything else as far as the Coast Guard is concerned is done and you speculated that by the end of the year this should be over. That's only your speculation. I can't hold you to that, but I'm trying to figure out where we are because this is all silly now. This doesn't make any sense, but this goes on and on and on. Your Honor, the Coast Guard is moving forward. I'm asking you if I got it right. Is that the right picture? If I were to write something or one of my colleagues were to write something where he said, look, this is who we are, this is where we are, there's very little left, would we be inaccurate? There's no navigation issue. The swap is to be done. If it's approved, then we're fine. The air rights, we're fine. The environmental, as soon as that approval comes through, we're done. This is over. Your Honor, the agency has a duty as an agency. Yes or no? I believe, Your Honor, that unfortunately the questions of these regulatory regimes are always a little bit more complex than that. That's a notice problem. Then I don't know what we're talking about. Respectfully, Your Honor, I disagree. The Coast Guard, as Your Honor noted, that's correct. The land swap is in the final stages of approval. Your Honor is absolutely correct that the sort of largest final piece here that's missing is the finalization of any supplemental environmental assessment and all of the requisite National Environmental Policy Act processes attached to that. Pardon, Your Honor? I just added that as oral argument. In other words, now we have the National Park Service in here in addition to EPA. Let me ask you another question. In Petitioner's, in Appellant's reply brief, pages 15 to 16, it cites several cases where private owners of an international bridge. Do you see that? Do you want to distinguish those cases for me or are the same distinctions you made in your responsive brief applicable here as well? We did make distinctions in our response brief, and I would add to address some of those particular instances. For example, the bridge company addresses the Presidio case. In that case, Mexico objected to the U.S. permit, and it is not apparent from the face of the Court's decision itself what other issues were at play when the Coast Guard decided to. . . So you don't know whether that's good authority or bad authority for you? Those records, they're not bad authority for us, Your Honor, because the records in those. . . We don't know because the records underlying the Coast Guard's actions in those cases are not before this Court, and we don't know what, in different circumstances, the agency was considering. You made an assertion in your responsive brief that in all these cases that appellant's opening brief had cited, they were distinguishable because the applicant had the power of eminent domain. Now in the gray brief, the reply brief, appellant comes back and says, not so. So my question to you is, who's right here? Are these cases covered by the same distinction you made in the red brief, or are these different types of cases? And I accept your point about each applicant is different, but I just want to get . . . You draw this distinction between powers of eminent domain versus a private party. So now I'm cited the Presidio Bridge Company. I'm cited the Central Railroad Company of New Jersey. And I thought in that case, well, maybe the state had given the railroad certain powers of eminent domain, but I don't know. And then it talks about the DIBC application, and the agency's own statement in 2006 that the application was complete, even though appellant had not yet acquired the property. If I may try to take those in turn then, Your Honor. The Presidio Bridge, as we discussed previously, in that instance Mexico was objecting to the U.S. permit, and there were other issues at play there. In the New Jersey case, I believe in that circumstance, the agencies had approved the bridge, but the state authorities were seeking to block it. As for the Coast Guard's approval of a permit for the other border crossing, what's referred to as the . . . I'm sorry, what did you tell me about the Central Railroad case? The New Jersey Central Railroad of New Jersey? The further citation for the Presidio Bridge, appellant says that the Coast Guard there acknowledged that it had no authority, and it's quoting, no authority to look into the ability of the applicant to construct the bridge. The second case cited is a private entity, allegedly, the Central Railroad Company of New Jersey. And the gray brief says, notwithstanding the opposition of the state to the bridge's construction and a lawsuit that was not resolved until two years after the granting of the permit. The Coast Guard has granted the permit. So this notion that you have to wait until the applicant has title to the property seems to be inconsistent with the position the Coast Guard has taken in other cases. We do not believe that it's inconsistent, Your Honor, and this is because in this particular . . . First case you told me Mexico was objecting. What's the distinction in the second case, the New Jersey Railroad case? Your Honor, I'll have to . . . I don't believe I have those notes out with me. I think that in that particular circumstance, the agency simply looked to other authority or . . . That record is just simply not before us, and so we don't know what it was that the Coast Guard was looking at in terms of authority to assure itself. You made a very broad assertion in your responsive brief, and now they have come back and said, in fact, that broad assertion is incorrect. So I think it is before us, at least to that extent. And I thought, well, I'll ask counsel, and you'll either tell me that's just wrong, that they've got it wrong, or, in fact, they have cited some other cases. Indeed, in your red brief, you acknowledge that this case is unique. It is unique, Your Honor. It is not often that an entirely private entity is building an international crossing, and I think that that's part of the fundamental issue here, that there are not a lot of circumstances that this court can look at for comparison. We do cite a case, Your Honor, in our answering brief, the International Bridge Company case versus New York, which presents similar circumstances in which the bridge company asserted that because there was an international bridge, that the state had no right and that local authorities had no right to intermeddle or to block any construction. And the Supreme Court in that case explained that the foundation of a right to use the land at all still must come, in that instance, by state law. That's not inconsistent with Appellant's position here. The cases they cite, Your Honor, are not inconsistent with what the Coast Guard has done here. In other words, the hypothetical situation that Judge Edwards was discussing with you is totally consistent with that case and totally consistent with the cases cited in the gray brief. At some point, the private party does have to get the land if it's going to construct the bridge, but it doesn't necessarily have to do so before Coast Guard issues a permit to a private party in an international bridge. Your Honor, I think that... What is it about this case that distinguishes those past instances? In this particular instance, and I think that we can draw guidance from, indeed, the language of the 1946 regulations, which were in the books for a long time with no congressional oversight. They're not in the books now, so what use are they? I think that they're useful in guiding this Court's understanding of what it is that the Coast Guard has the authority to look at when it is... On the applicant trying to get a permit and the fact that there's some old regulations that the Coast Guard decided not to continue, that doesn't help much, does it? I mean, it's interesting history about the evolution of the Coast Guard's thinking, but the Coast Guard has moved on. The Coast Guard has not moved on to the extent that I think that all of that language is still... The core language has continued over time, and that is the language... That is in the last sentence of Section 115.05, and that is the language that the Coast Guard looks at in determining whether there's any doubt. The last sentence, unfortunately for you, does not say, does not compel a showing of ownership. It just says to be cautious if there's some reason to be cautious because you're not sure. I mean, it's just not fitting. The last sentence does not compel ownership. It just says you can be cautious if someone comes in and says, we plan to build here, and you have really good reasons to know there's a lot of opposition. For example, you could have said, arguably here, they pulled out initially. They did it. For whatever reason, so we're cautious. But it doesn't say we will not issue a permit unless they prove ownership. That's not what it says. It is correct, Your Honor. It does not say those words precisely. What it does say and what it does leave the Coast Guard room to consider is whether it may be engaging in some meaningless intellectual exercise if the bridge company's interpretation were to prevail, that all it needs to demonstrate is that there are no navigation problems, and beyond that the Coast Guard may not look to anything else. We are presented, the Coast Guard, the agency is presented with a world in which it may be receiving dozens of applications for spots all along the Detroit River, and the applicant would say, well, we don't have to demonstrate or commit to any particular location. We just want you to consider all of our dozen applications because we will figure out the property rights later on. In this circumstance, the feds aren't going to give approval all up and down the river, are they? The congressional authorization said within, I believe, I don't remember the exact language, but the congressional approval was actually not specified to any particular location along the river in Detroit. And so in that circumstance, they could point to a more general congressional authorization to build within the municipality of Detroit and say, here are a dozen applications. We want you to evaluate all of them. We want you to go through public notice and comment and all of these extensive hearings and environmental analysis, and that is simply an untenable position for the agency. Mr. NEPA, are you required to complete the NEPA analysis before you can grant the permit? The Coast Guard does believe that it is under a duty to ensure that no supplemental Not under the Bridge Act or anything, that's just That is not under the Bridge Act, Your Honor. But it's under another statute. That is under the environmental regulation under NEPA, yes, Your Honor. Does it say that, what the Chief Judge said? It does not say You have to have the EPA approval before you can grant the permit. Is that what it says? Does the statute say, define, for example, major government actions as including the granting of a permit? I'm not positive that doesn't appear to be discussed in the briefs, but I thought the statute says before there can be a I think the words are major government actions, something like that. If you're from the Environment Division, you must know the answer to this. That's correct, Your Honor. Under the regulations, then. Yes, Your Honor. The question, and so in this circumstance, for example, some of the issues that are at play is whether the increased traffic along the Twin Span would lead to air quality issues that would cause the region to be out of compliance. And so in that circumstance, the Coast Guard, as the federal agency undertaking and approving a major action, is under a duty and under a duty of good governance in general to assure itself that there are no environmental concerns before proceeding. So your reading of the statute is that it is permissible for the Coast Guard to establish itself as the last of the entities that have to approve before the application is approved. Everything else has to be done before you will grant the application. That is the bridge company's characterization, and we do not believe that to be accurate. The Coast Guard is among the last, but certainly not the last in the process. For example, generally there are Army Corps of Engineers permits that need to be granted. This would be under Clean Water Act Section 404 oftentimes because the construction of a bridge may involve dredging, filling. I thought it was an example because I gave you the example of FERC issuing conditional permits subject to Clean Air, Clean Water Act type approval. Certainly, Your Honor. Let me clarify my previous answer. The Coast Guard would not be awaiting the Army Corps, does not ordinarily await the Army Corps of Engineers permit before issuing its permit. So if there's another statutory scheme setting up a permit requirement. That would be a separate process, Your Honor. But you would do so with NEPA. That is because that is the Coast Guard's own action. That's what? That's because that pertains to the environmental review of the Coast Guard's own action. This is not Coast Guard review of other agencies' actions. I know there's no time left. We'll give you two more minutes. Thank you. Thank you, Your Honor. Very quickly, Your Honor. First of all, in the rescission of this abeyance letter that Judge Edwards asked, in the District Court docket record at 115-8 is a November 19, 2009, making clear that the Coast Guard understood that had been rescinded. I think it's a non-issue in the case. Your Honor, I don't think there can be any dispute that the second sentence, 115-05, and everything after the first sentence applies to private applicants. The Coast Guard has never argued otherwise. The doubt sentence, the Coast Guard was asked about it. We were asked about it. The counsel seems to want to reserve a lot of right to do whatever they want using the word may. They say they've given us notice. But the doubt sentence, they have never argued, and it wasn't even clear to me counsel argued it today, that the doubt sentence in 115-05 is some freestanding floating requirement that has nothing to do with primary authority. It is rooted in primary authority. They cannot take it out of that context. I would refer the Court to the Supreme Court decision, Yates v. United States, 135, Supreme Court, the Penn site, 1086, for the established interpretive rule. You have to read that last sentence in context. And they've tried to argue on page 9 of their brief they have some plenary authority. That shows you in a way how desperate they are. They say they have the authority Congress had when it gave us our original franchise. They do not. So it really boils down, Your Honor, that last sentence is about primary authority. So the question is, what is primary authority? Or if you give the agency deference, which we don't think you should, what is a reasonable interpretation of primary authority? Here's what we know for sure. Primary authority does not include property ownership. That is crystal clear from 11505. Neither the District Court nor the Courts Guard ever addressed the illogical fact that a state license without property is primary authority, but a congressional franchise with a special agreement with Canada and a State Department letter somehow isn't enough and you need more than you do when you just have a state license. We also know that 11505 does not define necessary primary authority for an international bridge because none of the things listed in it give you congressional authorization, which you need under Section 401 and 491. 33 U.S.C. 401, 33 U.S.C. 491. Your Honor, I follow. I thought you just told us that everything after the first sentence of 11505 applies to you. It applies to private applicants. There was a question as to whether I thought the question was, maybe I misunderstood, that you asked counsel for the Coast Guard. Does it apply to private applicants versus governmental applicants? And I just want to be clear. They've always said, and I think it's clear from the text, it applies when you're not a state or municipality. You are bound by the last sentence, which, why isn't it a reasonable interpretation? I don't think you can read this regulation to tell you anything about what necessary primary authority is for an international bridge. Can we just hold on that? So that means there's no regulations here that are relevant at all. Okay. That drives us back to the statute, which you were not able to be very persuasive about. You turned instead to the regulation. Now you're telling us the regulation doesn't even apply. Your Honor, before I leave the regulations, there's no regulation that does what this does on federal primary authority. But the regulation recognizes federal primary authority. The application requirements say you need to show us your congressional authorization and then alternatively to your position. I want to be clear. Your position is 115.05. You're about to get some help here behind you. It does not apply to you at all. Is that right? We don't think it applies unless you read charter to mean what we say, which in case we would have it. We don't think it is addressing federal primary authority for international bridges. The application requirements in 115.05 do address what you need to show for an international bridge, as does the guide, as do the prior regulations. They all say the same thing, congressional authorization. If you look, please, at the guides, Joint Appendix 1101 for the 1999 guide or 1034 for the 2011 guide, they both make clear that the stuff that's being talked about in 115.05 is for domestic bridges, and then right underneath they say for international bridges, if applicable, show us your special act of Congress. Oh, and if it's after 1972, cite to the 1972 act, and then you need to go and tell us, show us your State Department approval letter. So they are crystal clear what you need to show if it's an international bridge, as are the application requirements, as are the old regulations, maybe a little more clear on this. And I gave a missed cite, so just the two pages in the Joint Appendix on the original regs would be 357, Joint Appendix 357, and 374, which we do, I think, make clear what you need to show for federal primary authority. Is it your position, then, also that the 1946 regulation didn't apply to international bridges? The 1150, the version of... 330, yeah, 209.330. Your Honor, our position is that the version of 11505 that existed in the 1946 regulations did not tell you anything about necessary primary authority for international bridges. Do you have any authority from the agency or anywhere else suggesting that 11505 does not apply to international bridges? I think the past practice that the panel was asking... Is there anything where anyone at the agency has ever said, no, we don't intend this to cover international bridges? I don't think I have anything that clear. I think the guide pages I cited, the Court Joint Appendix 1101 and 1034, do make that clear. I think those guides do make it clear, as do the past practice with Presidio and with our own bridge in 1927. Do you agree that, with respect to the NEPA question, that they can't finalize the permit until the NEPA review is completed? We don't agree with that, Your Honor, because it's the exact same project that had a completed... On the law question, you agree that a permit, before they can grant a permit, they have to approve. Now, you're saying they should approve, but you agree on the law that they have to approve. Yes, we just think they've done it. Okay, but that's not before us at all, right? Well, if we agree with us on the lack of a property ownership requirement, we think the Court can take the extra step and order them to issue the permit. Why would that be? We have not a single bit of briefing or record on the question, other than your representation, that they've already done it, and their representation that it's different and they have to do it. The best you could get would be a remand on that question. Did you make that argument below, even, the NEPA question argument? Well, I think it was actually implicit in what Judge Collier did, that she thought the NEPA process was finished, and she tried to confirm it was finished. We've submitted the citations to you for why we think it's finished, but I recognize what the Court is saying on the NEPA process has to be finished. We think it's finished. They don't think it's finished. So I might just go back to Judge Edwards' question. The other thing about – we didn't cite this in our brief. 33 CFR 115.30 is another regulation. If you read it, it is yet another example of a regulation that cannot have anything to do with federal primary authority, and it's clearly focused only on state authority. So if it seems anomalous to the panel, why would they write a regulation without talking about the international bridges? I at least have another example to show you where they did just that. They talk about – I don't know if there's anybody else on the bench. We're almost six minutes over. Do you have any further questions? We'll take the matter under submission. Thank you.