Chad Halcom/Crain’s Detroit Business — A long trawl of litigation may be nearly over for Ambassador Bridge owner Manuel “Matty” Moroun and the Detroit International Bridge Co., while the courts’ attention drifts downriver soon, to the planned Gordie Howe International Bridge.
Of the dozen-plus lawsuits to crop up since 2009 involving Moroun, his bridge company, various government agencies and neighboring landowners, only two cases are still pending — and U.S. District Judge Rosemary Collyer dismissed most of one last week.
An appeal in the same lawsuit, still awaits oral arguments Oct. 19 at the U.S. Court of Appeals in Washington, D.C., and another 2013 lawsuit in Washington is still pending.
“This guy (Moroun) never gives up,” said Richard McLellan, owner of McLellan Law Offices PLLC in Lansing, who had consulted on a previous version of the international bridge agreement that floundered in the state Legislature a few years ago. “I think he definitely has the potential to create new law in this case. It’s just not necessarily to his advantage.”
Timothy Mullins, chairman of the government law section at Giarmarco, Mullins & Horton PC in Troy, also noted the bridge company was persistent but unlikely to prevail in the Washington court case. But then, having the stronger legal argument may not be the point.
“The company has spent an awful lot of money to delay the public bridge process,” he said. “But if you took the amount of money he’s spent (in court) and compare it with the amount the bridge makes, then probably every year he can delay things it’s still a profitable venture.”
The Ambassador Bridge is widely believed to have generated around $60 million in annual revenue in recent years. The DIBC has said a government bridge could siphon as much as 70 percent of its traffic, although a traffic study from public bridge supporters estimates it would take 31.1 percent of Ambassador’s commercial truck traffic and 12 percent of auto traffic by 2035.
The bridge has historically accounted for more than one-quarter of all commercial traffic between the U.S. and Canada. Moroun, a trucking industrialist who bought the Ambassador in 1979, has been in litigation through the bridge company for years over both the public span project and his own proposed private second span to be built alongside the Ambassador.
But even as that litigation winds down, Wayne County Circuit Court may be about to hear dozens of eminent domain suits from state Transportation officials against property owners in Detroit’s industrial Delray neighborhood, where the Gordie Howe bridge is expected to land.
Chief Circuit Judge Robert Colombo issued a “docket directive” last month, ordering any lawsuits MDOT expects to file condemning property for bridge purposes to be initially assigned to him.
The cases will then be randomly reassigned to various civil court judges after Colombo handles preliminary matters, like transfer of title and challenges to the necessity of taking land — a protocol that suggests the court expects a fairly large MDOT case volume shortly.
“There was a time we were told the bridge authority didn’t want to file in court and could work this out on their own,” said Alan Ackerman, managing partner of Bloomfield Hills-based Ackerman, Ackerman & Dynkowski PC and attorney for more than 15 property owners near the proposed crossing site.
“But I don’t think they have interest in doing anything else but going to court, at this point.”
Collyer dismissed seven out of nine counts in a 2010 Detroit International Bridge lawsuit against the U.S. State Department, U.S. Coast Guard, Federal Highway Administration, the government of Canada and several federal cabinet members and department heads, in a ruling that said the bridge company was overstating its claims under a 1921 franchise agreement authorizing the bridge.
An eighth claim, stemming from allegations the Coast Guard held up a requested permit for a second bridge span alongside Ambassador for over a decade, was dismissed earlier but is under review at the appeals court in Washington.
The bridge company claims the Coast Guard’s permit actions have served as a delay tactic, while Michigan and Canada prepare to open the public Howe bridge about two miles away by 2020. Mickey Blashfield, director of government relations for the bridge company, declined to comment on any of the litigation last week.
Only one claim, that the State Department entered an international crossing agreement without congressional action and that Michigan entered it without legislative action, is going forward.
Robert Sedler, a professor of constitutional law at Wayne State University Law School and part of the Moroun bridge company’s legal team in the Washington court case, crafted the legal argument for that surviving court claim. He said last week that Gov. Rick Snyder essentially lacked authority to unilaterally enter a bridge crossing deal with Canada.
That argument could get some traction, some observers said. “None of the arguments that got dismissed (by Collyer) made any sense. The one that didn’t get dismissed makes some sense, but it’s not a showstopper,” Ackerman said of the Sedler argument. “It’s probably a stretch to think he (Moroun) will win it, but it comes close.”
The Coast Guard has rejected the bridge company’s permit application in part because Moroun had not yet obtained all the land on either side of the river necessary to build the second span — a feat that Moroun’s attorneys contend isn’t required for permit purposes.
Mullins said governments can be limited by their contract agreements, like the kind that a predecessor company to Moroun’s first reached to authorize a toll bridge crossing over 80 years ago. But it was unrealistic of Moroun’s legal team to expect its own agreement was enough to constrain both governments from developing another bridge.
He also said the Coast Guard is likely to prevail on the permit dispute as well.
“It’s an argument, and he (Moroun) is welcome to make it,” he said.
McLellan contends the Michigan constitution, in Article 3, specifically authorizes the state to “enter into agreements…(to carry out) their respective functions” with the government of Canada, a power the state has invoked on several other occasions as well as in the bridge deal last year.
But Sedler counters that provision is “subject to provisions of general law,” or statutes enacted by the Legislature.
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