Legal case for Ambassador Bridge argued by veteran law professor Robert Sedler

July 27, 2010
By Peter Samuel

Michigan DOT and supporters of a third Windsor Detroit international crossing known as the DRIC bridge continue to be stymied in their efforts to get approval from the state legislature. There are a number of reasons for this but one might be legal and constitutional problems. Robert A. Sedler, a veteran law professor at Wayne State University Law School made something of a splash recently with testimony against the DRIC before the Michigan senate transportation committee.

Sedler has been hired by the Ambassador Bridge company, so he is not impartial, but he says he's expressing his own his views, not the bridge company's. His testimony deserves review, critical review.

His presentation to the state senators argued:

1. the US Congress in a special act of March 1921 gave the company a "exclusive perpetual franchise over the construction, operation and maintenance of a bridge over the Detroit River between Detroit and Windsor."  The state of Michigan he says has no constitutional power to enact any arrangement as envisaged by HB4961 abrogating the exclusive franchise of the Ambassador Bridge company.

2. The 1972 International Bridge Act allowing the US Secretary of State to approve some state-Canadian bridge agreements doesn't allow encroachment on the the Ambassador Bridge company's franchise.

3. Under the US  federal system it should be the US Government, not the state of Michigan, that is negotiating with and making agreements with Canada over a major new crossing serving multi-state trade: "the interests of the United States and concerns of national sovereignty are predominant and far outweigh the localized interests and concerns of the State of Michigan."

The 1972 International Bridge Act is the basis on which Michigan's Granholm administration has been proceeding to negotiate arrangements with Canada's Transport department. This act provides for a state to enter into agreements with Canada or a province of Canada (or Mexico) for new bridges subject to a notice of approval by the US secretary of state. The president must concur in the "necessity" of the new bridge.

On these new bridges tolls can be collected for a period determined by the US secretary of transportation as reasonable to amortize the cost of construction and its financing plus "as reasonable return on invested capital." But at the end of that period the bridge built under the 1972 act must be gifted to the state.

2005 interpretation of bridge acts

Sedler quotes a 2005 interpretation of the 1972 Act in a State Department letter to the Ambassador Bridge company:

"In passing the 1972 statute, Congress made clear that activities conducted pursuant to prior congressional statutory authorizations would not be affected by the new law... Specifically, the House Report provides that the International Bridge Act 'should not be construed to adversely affect the rights of those operating bridges previously authorized by Congress to repair, replace or enlarge existing bridges.'"

Sedler argues the DRIC cannot meet a "necessity test" for the US president since (1) traffic has been in decline and the need for extra capacity is unproven (2) the DRIC is too close to the Ambassador Bridge to provide redundancy in case of attack.

The first is very arguable, given the dramatic decline in traffic at this border over the past several years, and the ability of a modern 6 lane parallel bridge to increase capacity by 60 to 65% (6 modern lanes, median barrier, shoulders v 4 tight lanes, no median, no shoulders).

Redundancy in case of bomb attack

But the second is totally wrong. Sedler has a vastly inflated notion of the radius of damage from a bomb.

Your editor was introduced to bombs as an infant bei der Luftwaffe which fallen ein grosse bombe - one about the size of a car bomb 250kg - on the house across the other side of the street in Cambridge England. We had windows and doors blown out and some ceiling plaster fell in but no structural damage - at less than 30m, 100ft. Also as a defense correspondent I got to know a bit about bombs, especially mortar bombs one night in the wild Parrot's Beak part of Cambodia around 1969-1970.

And there are standard blast radius calculators now on the web.

Blast strengths or 'overpressures' vary inversely to the cube of the radius from the explosion - has been the general bomb rule, so the table nearby gives a rough characterization of blast effects of explosions of various sized bombs.

The parallel span as planned by the Ambassador Bridge company separated maybe 100ft (30m) from the old bridge should provide redundancy against a car bomb attack. However a tractor trailer filled with explosives (say 40t) or a ship or barge underneath with hundreds of tons of explosives could seriously damage both the old and the new Ambassador bridges in the one blast.

The DRIC at 3km (1.9 miles) away would provide useful redundancy in case of most conceivable attacks on the Ambassador.   
The biggest truck bombs are most unlikely to have a structurally destructive blast damage radius of more than a quarter mile.

1,000t TNT (one kiloton) sends a 1psi shock wave 1.1km (0.7 miles) doing light damage to structures on the periphery of that radius. The DRIC would be quite safe from damage of a kiloton bomb at the Ambassador. (We don't mean to encourage local critics of the bridge company and DRIC supporters whose passions sometimes suggests they'd like to try this.)

Indeed the distance proposed between the DRIC and the Ambassador bridge would likely provide sufficient attenuation of explosive blast for even a Hiroshima style 15kt nuke on the Ambassador not to seriously damage the DRIC.

The better question to put to DRIC proponents of redundancy as a justification is: what's to stop car, truck or ship bomb attacks on both bridges simultaneously? If they can bomb one bridge effectively they can bomb two bridges.

Does physical separation really help much?

Offense usually being the best defense, money is probably better spent on aggressive intelligence gathering and pre-emptive attacks wherever in the world the bombers are working from.

Federal permit could be successfully challenged

Sedler concludes that any decision by the US secretary of state to issue a presidential permit on the "necessity" of the DRIC "could be successfully challenged in federal court as being 'arbitrary and capricious' and 'not supported by substantial evidence in the record.' "

He thinks that because of the competition the DRIC would provide to the Ambassador bridge and because  its 1920s franchise was issued by the US and Canada governments anything bearing directly on that has to be negotiated US-Canada, rather than Michigan-Canada.

The 1972 International Bridge Act, Sedler argues is only intended for use for minor local toll bridges catering to highly local traffic across the border.  The Ambassador Bridge and the proposed DRIC bridge are geared heavily to non-Michigan traffic.

"From the standpoint of the structure of the American federal system, there is something fundamentally wrong with an agency of the state of Michigan, MDOT, negotiating with Transport Canada, an agency of the government of Canada, over a project for the construction and operation of a new bridge over the most important border crossing between the United States and Canada. Under the American federal system, it is the responsibility of the federal government and not the State of Michigan to negotiate with the government of Canada with respect to the construction and operation of a new bridge over the most important border crossing between the United States and Canada.

"In the same vein, because the construction and operation of a new bridge over the most important international border crossing must serve the national interest, it is the responsibility of the federal government, not the State of Michigan, to provide or arrange for the enormous resources that will be necessary for the construction, operation and maintenance of a new bridge over this border crossing.

"At a minimum, the government of the United States and the government of Canada must address the customs enforcement and national security concerns that are necessarily involved in the construction and operation of a new international bridge.

"A proper respect for the structure of the American federal system mandates that the government of the United States, not the state of Michigan, undertake the responsibility for any international arrangement respecting the establishment of a new bridge between Detroit and Windsor."

Foreclosing on Michigan share

The Canadian government has offered the state of Michigan loans of some $500m to provide money it apparently cannot raise itself to pay for a I-75/DRIC interchange and approaches, loans that will be secured to the tolled part of the bridge. This, Sedler says, gives the Canadian government potential legal title to the DRIC franchise over the US portion of the DRIC as well as the Canadian portion in case of the private concessionaire defaulting.

"If the United States government had taken the responsibility for an international arrangement with the government of Canada respecting the establishment of the new bridge in the first place, the United States government would have ensured that such an eventuality would not have come to pass."

Legal symmetry

Sedler makes a strong case that there should be legal symmetry in international toll bridge governance and regulation - national government to national government, or state to province, or local to local.

The other striking theme frequently repeated in Sedler's testimony is that somehow the DRIC abrogates an "exclusive perpetual franchise" granted to the Ambassador Bridge company in the 1920s acts. Also that these special acts of the US Congress and the parliament of Canada rule out competition.

Sedler's testimony reasserts again and again that the bridge company's franchise is "exclusive" without anywhere explaining the basis for this. (report continues below rendering)

The 1921 and 1928 special acts of the US Congress say nothing about the franchise being exclusive. They don't contain any non-compete guarantees. They simply authorize the bridge company to build and operate the toll bridge so long as they get approval from the Canadians, and respect rights of navigation underneath  with proper clearances for shipping (March 4, 1921 act). The 1928 act gives them railroad company like rights to acquire the right of way, for which they must provide Just compensation, with tolls to be controlled by the state of Michigan (May 21, 1928 act).

The right to build and operate the toll bridge, the acts say, are transferable to "successors and assigns" so they can be inherited and sold. But nowhere is there any hint of a no-compete clause or anything giving the bridge company any exclusive rights.

We called professor Sedler and asked him the basis for his assertion. He said that the exclusive and perpetual franchise is implied. The acts don't mention any term for the franchise so it is "perpetual." Fair enough, we buy that.

"Exclusive franchise"?

As for "exclusive" Sedler sees this implied in the lack of any other US act authorizing another bridge.

But the US Congress and the Canadians soon after authorizing the Ambassador Bridge authorized the Detroit Windsor Tunnel just over a mile upriver. The toll tunnel has been competing, at least for car traffic, with the Ambassador Bridge almost since its opening.

More recently in the 1950s the US authorized a Grosse Isle Bridge (that never got built) and the Blue Water Bridge was authorized (and built) and also provides competition - especially for the lucrative truck traffic - with the Ambassador Bridge.

Without any explicit non-compete clauses in any authorizing act or agreement it seems to us nonsense to claim the Ambassador Bridge company has any exclusive rights, or legal protection from competition. If the bridge supporters had wanted that as a condition of their investment they should have written into one of the acts: "No competing crossing is permissible within one mile (or 3 miles or 5 miles or whatever) on either side of the Ambassador Bridge."

In the absence of that non-compete clause the Ambassador Bridge has to be prepared to compete - perhaps with a new DRIC bridge if state legislators roll the dice on possible heavy financial losses.

Here is Sedler's testimony to the state senate transportation committee:

TOLLROADSnews 2010-07-27

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