[00:00:00] Speaker 00:
Case number 15-5086, Detroit International Bridge Company, a Michigan corporation et al.

[00:00:07] Speaker 00:
appellant versus government of Canada et al.

[00:00:10] Speaker 00:
Mr. Hume for the appellant, Ms.

[00:00:11] Speaker 00:
Wang for the appellee.

[00:00:17] Speaker 01:
Good morning and may it please the court.

[00:00:18] Speaker 01:
This is Hamish Hume for the appellant, Detroit International Bridge Company.

[00:00:22] Speaker 01:
Your honors, the appellant in this case challenges the legality and propriety of the Coast Guard's rejection

[00:00:30] Speaker 01:
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.

[00:00:43] Speaker 01:
That permit and the amendment to the permit is issued under the 1906 Bridge Act.

[00:00:48] Speaker 03:
So your position is, as I understand it, that since the Ambassador Bridge has been completed,

[00:00:57] Speaker 03:
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.

[00:01:11] Speaker 03:
That's the end of the authorization that the Coast Guard has.

[00:01:18] Speaker 01:
Yes, Judge Rogers.

[00:01:19] Speaker 01:
The purpose is navigation.

[00:01:22] Speaker 01:
There is no navigational issue.

[00:01:25] Speaker 01:
We should have the permit.

[00:01:26] Speaker 03:
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.

[00:01:44] Speaker 03:
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

[00:01:56] Speaker 03:
that the Coast Guard has adopted to the extent it's going beyond what we just discussed based on the statute.

[00:02:04] Speaker 03:
That regulation is, the way you're briefing it, it's almost ultra viris, even though it has that last sentence in it.

[00:02:14] Speaker 01:
Judge Rogers, I think our first position would be that there is no

[00:02:19] Speaker 01:
possible reasonable reading of the plain text of that regulation that could require property ownership to show necessary primary authority.

[00:02:29] Speaker 03:
What about that last sentence?

[00:02:31] Speaker 01:
The last sentence, Your Honor, has to be read in the context of both the statute and the regulation in which it is found.

[00:02:38] Speaker 01:
That last sentence says care should be taken not to issue a permit when there's doubt about the right of the applicant.

[00:02:45] Speaker 03:
That is referring to...

[00:02:50] Speaker 01:
Yes, Your Honor, absolutely.

[00:02:51] Speaker 01:
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.

[00:03:02] Speaker 01:
If there is doubt about the applicant's primary authority, it says, then care should be taken.

[00:03:09] Speaker 01:
And I really think the following context, Judge Rogers, which was not fully ventilated in our briefs, is critical to understanding that last sentence.

[00:03:17] Speaker 01:
That regulation,

[00:03:19] Speaker 01:
There are a number of points I wish to make about that regulation, but primary authority is generally legislative authorization to build the bridge.

[00:03:31] Speaker 01:
And there are four points about primary authority that I think if this Court addresses,

[00:03:36] Speaker 01:
it is impossible, literally impossible, to affirm the lower court decision or the Coast Guard decision.

[00:03:42] Speaker 01:
Those four points very briefly are, first, both the statute and the regulations recognize that primary authority is either state or federal.

[00:03:54] Speaker 05:
What's all the language about inherent in the ownership?

[00:04:00] Speaker 01:
Judge Edwards, that is an alternative, very clearly in the plain text of that regulation.

[00:04:05] Speaker 01:
That is a last resort alternative way, if you have nothing else, if there is- That's not the way the regulation reads.

[00:04:16] Speaker 05:
Judge Edwards- I don't understand your argument that once you have the federal approval, that's the end of the case.

[00:04:25] Speaker 05:
There's nothing in the statute or the regulation that would give

[00:04:29] Speaker 05:
any intelligent reader in first look reach that conclusion.

[00:04:33] Speaker 05:
That's just the starting point.

[00:04:35] Speaker 05:
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.

[00:04:50] Speaker 05:
It talks about you don't have the state, so now you're into you've got to show some kind of ownership.

[00:04:58] Speaker 05:
I just don't understand your argument.

[00:05:00] Speaker 05:
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.

[00:05:06] Speaker 01:
Let me try to address the question, Judge Edwards.

[00:05:09] Speaker 01:
If you read regulation 11505, the regulation 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.

[00:05:28] Speaker 01:
Impossible.

[00:05:29] Speaker 01:
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.

[00:05:44] Speaker 01:
The regulation, if you have a state license to build a bridge, the regulation makes crystal clear you do not need property ownership.

[00:05:56] Speaker 01:
If you have a state license

[00:05:58] Speaker 01:
to build a bridge, the regulation makes crystal clear you do not need property.

[00:06:03] Speaker 05:
That regulation makes clear that the... Using the charter of a corporation, it doesn't say federal charter.

[00:06:09] Speaker 01:
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

[00:06:17] Speaker 01:
to read regulation 11505 as defining what necessary primary authority is for an international bridge.

[00:06:24] Speaker 01:
None of the things listed there.

[00:06:26] Speaker 01:
You could have one of them.

[00:06:29] Speaker 01:
You could have all of them.

[00:06:30] Speaker 01:
None of them could allow you to build an international bridge.

[00:06:33] Speaker 01:
You must have congressional authorization to build an international bridge.

[00:06:36] Speaker 05:
Let me try this a different way, just for my own satisfaction, to understand this.

[00:06:40] Speaker 05:
You have the property swap now, right?

[00:06:45] Speaker 05:
You have a property swap with Detroit.

[00:06:47] Speaker 01:
We now have a City Council approval for a property swap agreement.

[00:06:50] Speaker 05:
You have the air rights now, right?

[00:06:54] Speaker 01:
Yes, Your Honor.

[00:06:54] Speaker 01:
I don't think the deal has technically closed, but we have the agreement with City Council approval.

[00:06:58] Speaker 05:
Do you acknowledge that the agency has to check the environmental issues before it issues a permit, right?

[00:07:06] Speaker 01:
Yes, but we would submit that they have done so.

[00:07:09] Speaker 05:
Done so when?

[00:07:10] Speaker 01:
They issued a FONSI after public hearings in 2009.

[00:07:14] Speaker 05:
But you changed the design.

[00:07:15] Speaker 01:
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.

[00:07:25] Speaker 05:
Well, but you changed the design so they couldn't have done it back then.

[00:07:29] Speaker 01:
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.

[00:07:37] Speaker 05:
I'll ask them, but does an agency not have an opportunity to look again to be sure?

[00:07:43] Speaker 05:
You're the one who switched.

[00:07:44] Speaker 05:
You're the one, you conveniently started your argument, and you did this in the brief too, and it's really kind of astonishing.

[00:07:51] Speaker 05:
You're the one who asked that this be held in abeyance.

[00:07:54] Speaker 05:
You're the one who put this off track.

[00:07:57] Speaker 05:
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.

[00:08:12] Speaker 05:
And now everything's off track.

[00:08:14] Speaker 05:
And now you're angry.

[00:08:15] Speaker 05:
But that was your doing.

[00:08:19] Speaker 01:
Thanks for asking the question, because it's a point we didn't address in our reply, so I can address it now.

[00:08:24] Speaker 01:
The letter that the government cited to where we said, oh, hold it in advance, they do cite to it, but they didn't make an argument out of it.

[00:08:31] Speaker 05:
I'm giving you the argument.

[00:08:33] Speaker 01:
Exactly.

[00:08:33] Speaker 01:
So thank you.

[00:08:34] Speaker 01:
And the argument, we did not say hold it in abeyance because we didn't have the property.

[00:08:39] Speaker 01:
We said hold it in abeyance because we thought, and I think we immediately changed our mind, I think there was a confusion over it, that the NEPA process needed to be separated, the NEPA process, the environmental process, from the permitting process.

[00:08:52] Speaker 01:
But it didn't have to do with the property ownership.

[00:08:54] Speaker 05:
Nonetheless, you said hold it in abeyance.

[00:08:56] Speaker 01:
But within a month of that, and I hope my colleagues may be able to give me the citation,

[00:09:00] Speaker 01:
the Coast Guard recognized that that request to hold an abeyance had been rescinded.

[00:09:06] Speaker 01:
So this is a confused back and forth that becomes immaterial.

[00:09:10] Speaker 05:
So there's some type of 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.

[00:09:20] Speaker 01:
We didn't give it to you, Your Honor.

[00:09:21] Speaker 01:
I apologize because they didn't seem to base their argument on that.

[00:09:25] Speaker 01:
They did mention it in their fact statement.

[00:09:27] Speaker 01:
Within a very short period of time, the Coast Guard recognized that there was that letter saying request to hold an abeyance was rescinded and was taken off the table.

[00:09:38] Speaker 01:
So we were proceeding and then they rejected the application.

[00:09:41] Speaker 05:
So you're saying the, in your view, the only thing that's, you're saying there's no environmental issue left to be considered?

[00:09:52] Speaker 01:
We are saying that, Your Honor.

[00:09:53] Speaker 05:
Did the District Court accept that?

[00:09:56] Speaker 01:
I think the district court did accept that because Judge Collier... I don't understand.

[00:10:02] Speaker 05:
If the district court accepted that, then there would be nothing left because you have the swap.

[00:10:07] Speaker 05:
I didn't think the district court accepted that.

[00:10:09] Speaker 05:
Well... It doesn't mean she was right or wrong, but I... Sorry.

[00:10:12] Speaker 01:
Go ahead.

[00:10:13] Speaker 01:
The district court said that the sole issue for the rejection of our application was our failure to obtain the property.

[00:10:20] Speaker 05:
Yeah.

[00:10:21] Speaker 01:
not the Fonsi.

[00:10:23] Speaker 01:
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, and we cite to this.

[00:10:32] Speaker 05:
The flopping the air rights came after the district court decided it's?

[00:10:35] Speaker 01:
Yes.

[00:10:36] Speaker 01:
Yes, Your Honor.

[00:10:38] Speaker 05:
I'll just ask the government on the environmental, so I have their view.

[00:10:41] Speaker 06:
Can I ask you about the statute?

[00:10:43] Speaker 06:
Yes, Chief Judge O'Connor.

[00:10:44] Speaker 06:
So I don't see anything in the statute that says, the statute being Section 491,

[00:10:50] Speaker 06:
that resolves this case in the direction you're asking us to resolve it.

[00:10:54] Speaker 06:
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.

[00:11:09] Speaker 06:
Those are the key words.

[00:11:11] Speaker 06:
That strike, now that may be, some people might say, an over-delegation.

[00:11:17] Speaker 06:
That's a delegation without limitation.

[00:11:20] Speaker 06:
It doesn't in any way tell the Secretary what the Secretary has to do, except look at the location.

[00:11:26] Speaker 06:
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.

[00:11:36] Speaker 06:
In the beginning, you didn't have the land rights.

[00:11:38] Speaker 06:
Later, you didn't have the air rights.

[00:11:40] Speaker 06:
Is there anything in the words of this statute which supports your proposition?

[00:11:46] Speaker 01:
I believe there is, Your Honor.

[00:11:47] Speaker 01:
I do understand the question, Chief Judge Garland.

[00:11:50] Speaker 01:
I would start, let's start with 491, where Your Honor started.

[00:11:55] Speaker 01:
I'll grant you that it does not say, thou shalt do X to the Coast Guard.

[00:12:01] Speaker 01:
But what it does say very specifically, Chief Judge Garland, is what must the applicant submit for approval?

[00:12:08] Speaker 06:
Yes, the applicant must submit the map, et cetera, et cetera.

[00:12:12] Speaker 06:
But that's all fine.

[00:12:13] Speaker 06:
That's their submission.

[00:12:14] Speaker 06:
But you can't build until the Secretary approved those plans, those specifications, and the location.

[00:12:21] Speaker 01:
Yes.

[00:12:22] Speaker 01:
That's right.

[00:12:25] Speaker 01:
My proposition, Chief Judge Garland, is that the statute is very specific about what must be submitted for a full understanding of the subject.

[00:12:36] Speaker 01:
Sorry, the specifications, the locations.

[00:12:38] Speaker 01:
And for a full understanding, such map and such drawings as are necessary.

[00:12:43] Speaker 06:
It says, and those are the things that must be... That may be required for a full understanding of the subject.

[00:12:49] Speaker 06:
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?

[00:12:58] Speaker 01:
Maybe I just need to complete the point because the proposition is that we're submitting.

[00:13:03] Speaker 01:
Sorry, a little louder.

[00:13:04] Speaker 01:
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.

[00:13:15] Speaker 01:
So they are adding something that must be submitted.

[00:13:17] Speaker 01:
That's the first point.

[00:13:19] Speaker 06:
Well, they're not necessarily adding, you could say.

[00:13:22] Speaker 06:
They're not adding that, but the Secretary has the right to approve.

[00:13:25] Speaker 06:
And it doesn't say on what grounds.

[00:13:27] Speaker 06:
It just says it can approve.

[00:13:28] Speaker 06:
The Secretary has to approve the location before you can build.

[00:13:32] Speaker 06:
Would you at least agree this is ambiguous?

[00:13:34] Speaker 01:
You think this is crystal clear?

[00:13:34] Speaker 01:
I don't actually think it's ambiguous.

[00:13:36] Speaker 01:
What I would concede is that there isn't

[00:13:39] Speaker 01:
a clear statement somewhere in the statute that says, once this happens, the agency, you know, shall, must, thou shalt.

[00:13:46] Speaker 01:
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.

[00:13:55] Speaker 01:
Secondly, Your Honor, two more points if I may.

[00:13:57] Speaker 01:
Statute does make clear in Section 494 that the key thing is make sure it doesn't mess up navigation.

[00:14:03] Speaker 06:
That is certainly one thing that you can mess up, navigation.

[00:14:11] Speaker 06:
It doesn't say it's the only thing.

[00:14:12] Speaker 06:
It doesn't say this is the ground upon which you're to give permits.

[00:14:16] Speaker 06:
Nothing like that, right?

[00:14:17] Speaker 01:
But the regulations, Section 494.

[00:14:19] Speaker 06:
So now you're driving to the regulations.

[00:14:20] Speaker 01:
I actually think the regulations help us tremendously in this case.

[00:14:23] Speaker 06:
Not only do they help you, you'd say, without them you lose, because the statute itself doesn't get you there.

[00:14:28] Speaker 01:
No, I wouldn't say that, Your Honor, because I don't think there's anything, I don't think you could reasonably interpret the statute.

[00:14:35] Speaker 01:
to authorize the agency to impose ad hoc additional requirements sometimes, but not always.

[00:14:43] Speaker 01:
And it's crystal clear they do not always require property ownership, even from private... Now we're not even talking about... Now we're talking about practice.

[00:14:49] Speaker 06:
Now we're not talking about...

[00:14:51] Speaker 06:
the statute or the regulations.

[00:14:52] Speaker 06:
You're saying that in the past they haven't required property.

[00:14:56] Speaker 06:
They say they have.

[00:14:57] Speaker 06:
That's a different question.

[00:14:59] Speaker 06:
That's a question of sort of arbitrary and capriciousness, not a question of statutory interpretation, which is what you led with.

[00:15:06] Speaker 06:
So let's turn to the regulation then.

[00:15:09] Speaker 06:
On the regulation, it's titled necessary primary.

[00:15:12] Speaker 06:
Yes, please.

[00:15:12] Speaker 03:
Just quickly.

[00:15:13] Speaker 03:
In other words, you agree, do you not, with what the chief judge asked you?

[00:15:18] Speaker 03:
that the statute clearly authorizes or requires a look at location.

[00:15:27] Speaker 01:
Definitely it requires a look at location.

[00:15:29] Speaker 01:
I do wish to be very clear that the submission we made is very precise on location.

[00:15:35] Speaker 01:
In fact, the location was determined in 1927 by the original bridge.

[00:15:39] Speaker 01:
It's very precise, the location of the twin span.

[00:15:41] Speaker 01:
And the permit would only be for that location.

[00:15:44] Speaker 01:
You do not, you absolutely do not need to know about property ownership to know about location.

[00:15:49] Speaker 01:
You just need to know what does the submission say?

[00:15:51] Speaker 01:
We're going to build right here, nowhere else.

[00:15:54] Speaker 01:
And if you change that, the permit's invalid.

[00:15:56] Speaker 01:
You've got to go back and get another permit.

[00:15:58] Speaker 05:
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.

[00:16:09] Speaker 05:
When you read this, you've got to understand how other people would look at this.

[00:16:13] Speaker 05:
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.

[00:16:24] Speaker 05:
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.

[00:16:31] Speaker 05:
Why would an agency issue a permit in that circumstance?

[00:16:35] Speaker 01:
Your Honor, they would do it because it doesn't make sense.

[00:16:39] Speaker 01:
There are, I think, a few points in response.

[00:16:41] Speaker 01:
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.

[00:16:48] Speaker 01:
Normally, you would do it the other way.

[00:16:50] Speaker 01:
You would invest the money after you know there's no navigation problem with your infrastructure project.

[00:16:54] Speaker 01:
Secondly, again, I do think the regulations help us.

[00:16:57] Speaker 01:
It is crystal clear, inescapably unambiguous in the regulation of 11505, that if you have a state license,

[00:17:05] Speaker 01:
You do not need the property.

[00:17:07] Speaker 01:
You do not need the property.

[00:17:09] Speaker 01:
It says or.

[00:17:10] Speaker 01:
If you have nothing else, then look at property.

[00:17:12] Speaker 06:
I have to say, I find this, not only do I not find the regulation not crystal clear, I can barely understand it.

[00:17:19] Speaker 06:
And at some points, you yourself have said it seems somewhat internally contradictory.

[00:17:25] Speaker 06:
But let me ask, let me tell you the two parts.

[00:17:28] Speaker 06:
that confused me, and then I want to talk about its origin.

[00:17:31] Speaker 06:
So the title is necessary primary authority, right?

[00:17:34] Speaker 06:
Yes.

[00:17:34] Speaker 06:
It doesn't say sufficient, just as necessary.

[00:17:37] Speaker 06:
So even if you are 100 percent right about what is the primary authority here, that 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.

[00:17:50] Speaker 06:
It doesn't say necessary primary authority plus navigability.

[00:17:53] Speaker 06:
It just

[00:17:55] Speaker 06:
Am I right?

[00:17:56] Speaker 06:
And I've looked hard.

[00:17:57] Speaker 06:
I haven't found a regulation that says what to do with this once you have necessary primary authority.

[00:18:02] Speaker 01:
Your Honor, I'm not submitting that the entire regulations are a model of clarity.

[00:18:06] Speaker 01:
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.

[00:18:15] Speaker 01:
It's illogical, and this was never addressed by the district court.

[00:18:18] Speaker 01:
There are a number of points we just were never addressed.

[00:18:20] Speaker 01:
Let's start with answering mine, then you can go on.

[00:18:22] Speaker 01:
Sorry, Your Honor.

[00:18:25] Speaker 01:
It's as necessary.

[00:18:26] Speaker 01:
I'm not all.

[00:18:28] Speaker 01:
But that's my point.

[00:18:29] Speaker 01:
It doesn't say all.

[00:18:30] Speaker 01:
You have to first, I think if you look at the words primary authority and if you look at the statute,

[00:18:36] Speaker 01:
It's much more, it's sort of... I'm not seeing the words, necessary authority.

[00:18:41] Speaker 06:
Primary authority isn't... I'm not seeing the words, necessary authority.

[00:18:44] Speaker 06:
I mean... They're not in the statute.

[00:18:46] Speaker 06:
Primary authority in the statute at all, am I?

[00:18:47] Speaker 01:
What the statute makes clear is that for a state, intrastate bridge, section 401,

[00:18:57] Speaker 01:
you have to get your authorization from the state legislature.

[00:19:01] Speaker 06:
Can you just hold for one second?

[00:19:02] Speaker 06:
I want to be clear.

[00:19:03] Speaker 06:
Are the words primary authority in the statute?

[00:19:05] Speaker 06:
No.

[00:19:05] Speaker 06:
They're not.

[00:19:06] Speaker 01:
No, I'm sorry.

[00:19:07] Speaker 01:
Absolutely not.

[00:19:09] Speaker 01:
What I'm saying is the words authority and authorization are in the statutes.

[00:19:14] Speaker 01:
And I do think it's important to recognize that these regulations implement not only the 1906 Bridge Act, section 491 at sequence, but also the 1899 Act, section 401.

[00:19:25] Speaker 01:
Since 1899, it has been clear from the statute.

[00:19:28] Speaker 01:
You're building an international bridge, you have to have authorization from Congress.

[00:19:32] Speaker 01:
You're building a domestic bridge, a state, intrastate bridge, you have to do that under the authorization of a state legislature.

[00:19:41] Speaker 01:
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 legislation,

[00:19:51] Speaker 01:
would focus on state primary authority.

[00:19:53] Speaker 01:
The Coast Guard's regulations recognize there is state primary authority and there's federal primary authority.

[00:19:59] Speaker 01:
They never address, they never say what federal primary authority is.

[00:20:02] Speaker 06:
I'm running out of time.

[00:20:03] Speaker 06:
Let me ask you some questions because they bother me and I'm sure you won't answer them for me.

[00:20:06] Speaker 06:
I do, yes.

[00:20:07] Speaker 06:
So the last sentence which Judge Edwards referred to with the regulations says, special care will be taken if federal approval is not granted when there is doubt of the right of the applicant to construct and utilize the bridge.

[00:20:21] Speaker 06:
So they say they have doubt in this case about the right to utilize the bridge.

[00:20:26] Speaker 06:
Isn't that consistent with their position?

[00:20:28] Speaker 06:
Why isn't that consistent?

[00:20:31] Speaker 01:
It's consistent with their position, but I think it's a misreading of the regulation.

[00:20:34] Speaker 06:
That's what I want to know.

[00:20:36] Speaker 06:
I just read you the last sentence.

[00:20:38] Speaker 06:
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?

[00:20:50] Speaker 01:
clear from the, first of all, 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.

[00:21:02] Speaker 06:
So are you telling me, just to be clear, that you don't get there with just reading the sentence?

[00:21:07] Speaker 06:
The sentence actually reads the way the government wants.

[00:21:09] Speaker 06:
It's in context that it doesn't?

[00:21:11] Speaker 06:
Is that what you're saying?

[00:21:13] Speaker 01:
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.

[00:21:24] Speaker 01:
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.

[00:21:33] Speaker 01:
Then the regulation goes beyond that.

[00:21:34] Speaker 01:
It's actually permissive.

[00:21:36] Speaker 01:
By the way,

[00:21:36] Speaker 01:
You could have a state license, maybe it's a licensing scheme or a state approval.

[00:21:41] Speaker 01:
What if you have nothing?

[00:21:42] Speaker 01:
What if there's no state regulation at all?

[00:21:44] Speaker 01:
Well, then maybe you show us your charter.

[00:21:46] Speaker 01:
Well, what if you have nothing at all and not even a charter?

[00:21:48] Speaker 01:
Okay, or, it says or as an alternative, as a last resort.

[00:21:52] Speaker 01:
Show us that maybe you own all the land.

[00:21:54] Speaker 01:
If you own all the land, then that as an alternative.

[00:21:57] Speaker 01:
could be a way to do it.

[00:21:58] Speaker 01:
And then it says, but by the way, we're kind of pushing the envelope here with all these alternative ways.

[00:22:03] Speaker 01:
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.

[00:22:10] Speaker 06:
So that's- You're talking about the context.

[00:22:13] Speaker 06:
What about the 1946 version of this CFR, which gives some idea maybe of what they mean?

[00:22:20] Speaker 06:
It is the same CFR.

[00:22:22] Speaker 06:
It says, however, in cases where the structure is unobjectionable,

[00:22:26] Speaker 06:
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.

[00:22:38] Speaker 06:
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.

[00:22:54] Speaker 06:
What about that?

[00:22:55] Speaker 01:
So Your Honor, first of all, that provision is not in the current regulations.

[00:22:59] Speaker 01:
It's not what?

[00:22:59] Speaker 01:
Not in the current regulations.

[00:23:01] Speaker 01:
Not in the current, right.

[00:23:02] Speaker 01:
But you're asking us to look at a lot of history.

[00:23:04] Speaker 01:
I am.

[00:23:04] Speaker 01:
And I'm looking at that for the purpose of trying to understand what the regulation means.

[00:23:08] Speaker 01:
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.

[00:23:18] Speaker 01:
uh... and we would cite the court to join appendix three fifty seven and three seventy three 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 one one four

[00:23:32] Speaker 01:
that said Coast Guard permit doesn't give you any other local approvals.

[00:23:38] Speaker 01:
You still have to deal with any other local issues you may have.

[00:23:41] Speaker 01:
It was replaced with that sentence.

[00:23:43] Speaker 01:
So it became a friendlier regime to applicants.

[00:23:46] Speaker 01:
It changed it.

[00:23:47] Speaker 01:
Secondly, even if that regulation were still in effect, it's different from what they did here.

[00:23:53] Speaker 01:
What they did here is say, by the way, this thing is entirely incomplete.

[00:23:57] Speaker 01:
There is a necessary prerequisite to show property ownership.

[00:24:00] Speaker 01:
That's not what that regulation says.

[00:24:02] Speaker 01:
That one actually says they would tell you

[00:24:04] Speaker 01:
Basically, they'd give you an equivalent of a conditional permit.

[00:24:08] Speaker 01:
They'd say, here's a letter saying there's no navigation issue, but sorry you have this local problem.

[00:24:13] Speaker 01:
Until you get that sorted out, you won't get the official permit.

[00:24:15] Speaker 06:
Well, that's not what it says.

[00:24:16] Speaker 06:
It's not usual for the department actually to issue a permit.

[00:24:19] Speaker 06:
They're not saying we'll give you a conditional permit or a non-official permit.

[00:24:24] Speaker 06:
They're just saying it's not usual to give it to you.

[00:24:25] Speaker 01:
Previous sentence makes clear that they would tell you that there's no problem with navigation.

[00:24:29] Speaker 01:
They would at least give you something that would be helpful

[00:24:32] Speaker 01:
to confirm that you have no navigational issue.

[00:24:35] Speaker 06:
Have they not told you that?

[00:24:36] Speaker 06:
I thought you said everybody agreed.

[00:24:38] Speaker 01:
They just simply never disputed it.

[00:24:40] Speaker 01:
It's different from what they would have done there.

[00:24:43] Speaker 03:
Just one point.

[00:24:45] Speaker 03:
I do get your argument about that if your client represented a state,

[00:24:56] Speaker 03:
someone with eminent domain authority, which is what, or a client with eminent domain authority, either because of your governmental nature or because Congress had given you that, that the reality is that no one would rationally do what the agency is suggesting be done here because

[00:25:26] Speaker 03:
of the reason you gave.

[00:25:29] Speaker 03:
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.

[00:25:46] Speaker 03:
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

[00:25:56] Speaker 03:
whether it's a water rights permit or something.

[00:26:00] Speaker 03:
So what I understand your argument to be is that, and the Coast Guard in its brief says this is a unique situation.

[00:26:11] Speaker 03:
in the sense that they say all their cases have involved entities that have had imminent domain authority.

[00:26:23] Speaker 03:
And so they say, as I understand it, we don't want to waste our time going through this process

[00:26:30] Speaker 03:
if we're not certain that this bridge can actually be completed.

[00:26:37] Speaker 03:
So therefore, we're going to treat someone without imminent domain authority a different way.

[00:26:48] Speaker 03:
And why isn't that a rational way of looking at it?

[00:26:51] Speaker 01:
I think there are a couple of answers, Judge Rogers.

[00:26:53] Speaker 01:
First, it's inconsistent with what they actually did.

[00:26:57] Speaker 01:
It's inconsistent with what they did in this case.

[00:27:01] Speaker 01:
It's inconsistent with what they've done in other cases.

[00:27:04] Speaker 03:
I was going to ask them about those cases.

[00:27:05] Speaker 01:
All right.

[00:27:06] Speaker 01:
But I mean, they can't now say that they have a rule of administrative convenience to require property ownership right up front.

[00:27:15] Speaker 01:
When they didn't require it and only later, at late four years into the process, did they say, okay, look, you haven't required the property yet.

[00:27:24] Speaker 03:
You're rejected.

[00:27:26] Speaker 03:
your application to be complete in 2006?

[00:27:30] Speaker 01:
Yes.

[00:27:31] Speaker 01:
And now they're saying for administrative convenience, they would never deem something complete without proof of property ownership.

[00:27:36] Speaker 01:
So the second point I would make as practical one, 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.

[00:27:45] Speaker 01:
Then the Coast Guard says, you want our navigation permit, come back to us when you have the property.

[00:27:49] Speaker 01:
We were a ping pong ball in a very unhappy game of ping pong.

[00:27:52] Speaker 01:
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 thou shalt in it.

[00:28:04] Speaker 01:
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

[00:28:22] Speaker 01:
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.

[00:28:31] Speaker 01:
You never get anywhere.

[00:28:32] Speaker 01:
I mean, it's the definition of a bureaucratic quagmire.

[00:28:34] Speaker 01:
So I think that is, by definition, irrational.

[00:28:40] Speaker 01:
Thank you, Your Honors.

[00:28:56] Speaker 02:
Good morning, Your Honors.

[00:28:57] Speaker 02:
May it please the Court, Vivian Wong for the U.S.

[00:28:59] Speaker 02:
Coast Guard.

[00:29:01] Speaker 02:
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 Dibbitt's application, the end result of which will be a new decision based on a changed record that supplants the decision.

[00:29:19] Speaker 03:
As I understand it, the agency's position now is that even if the City of Detroit

[00:29:26] Speaker 03:
grants all of its approvals to this land swap, the agency will still have to do some further environmental review.

[00:29:35] Speaker 02:
That's correct, Your Honor.

[00:29:38] Speaker 02:
The Coast Guard, under its principles of agency, good governance, does need to assure itself that the environmental review is all in order.

[00:29:49] Speaker 05:
You've already done that for this design.

[00:29:51] Speaker 05:
Why does it need to be done again?

[00:29:53] Speaker 02:
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.

[00:30:04] Speaker 02:
And so what the Coast Guard has now done is sent its counterparts at the Environmental Protection Agency a notice saying,

[00:30:12] Speaker 02:
You know, here is the information that we submitted before.

[00:30:15] Speaker 02:
Please ensure that you don't need additional information.

[00:30:18] Speaker 02:
And if you need additional information, we will ensure that the bridge company sends that to you.

[00:30:23] Speaker 02:
And so Coast Guard needs to ascertain that it is... How much longer is that going to take?

[00:30:28] Speaker 02:
That's in accordance with the EPA and the Coast Guard's general regulations.

[00:30:33] Speaker 02:
The agency gets 30 days to submit its comments to the Coast Guard and then assuming things are in order.

[00:30:42] Speaker 05:
How long ago did you send it?

[00:30:45] Speaker 02:
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.

[00:30:58] Speaker 06:
Your brief says the permits will be granted by the end of the year, could be granted.

[00:31:02] Speaker 06:
What's the deal here?

[00:31:03] Speaker 06:
What's your best guess?

[00:31:05] Speaker 02:
Could be, Your Honor.

[00:31:07] Speaker 06:
Here's a decision the Coast Guard has to make.

[00:31:10] Speaker 06:
If they delay, and we rule against them, they lose the authority forever that they claim here.

[00:31:16] Speaker 06:
If they grant the permit right away, they might move this case.

[00:31:21] Speaker 06:
And you're going to have to make that decision, but given your inability to tell us when, there's no reason for us to not go forward.

[00:31:28] Speaker 06:
Is there any reason for us not to go forward?

[00:31:30] Speaker 02:
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.

[00:31:44] Speaker 06:
To the extent that the Court... One kind of effective relief we can grant is that never in the future can you make this argument again.

[00:31:51] Speaker 06:
that property rights have to be established before you can grant a permit.

[00:31:55] Speaker 02:
But Your Honor, that is not relief that is granted to the plaintiffs.

[00:31:59] Speaker 06:
I'm sorry?

[00:31:59] Speaker 02:
That would not be relief granted to the plaintiffs in this particular instance.

[00:32:02] Speaker 06:
It would eliminate that issue, and it would eliminate that issue, and they won't have to wait any longer on that issue.

[00:32:08] Speaker 06:
They want to get moving.

[00:32:09] Speaker 06:
They want to build this.

[00:32:11] Speaker 06:
Apparently it costs them money to not having it built.

[00:32:14] Speaker 06:
So they have a reason to move forward quickly.

[00:32:16] Speaker 06:
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.

[00:32:24] Speaker 06:
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 maybe in their direction.

[00:32:41] Speaker 02:
Well, 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.

[00:32:52] Speaker 02:
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.

[00:33:03] Speaker 02:
The Bridge Company's interpretation of the statute and of the regulation conflates congressional

[00:33:09] Speaker 05:
consent to building a bridge with the detailed- Let's assume you have a strong case in the statute.

[00:33:15] Speaker 05:
That is because it's ambiguous, and so you have some room to adopt regulations.

[00:33:22] Speaker 05:
As the chief judge said earlier, or someone said earlier, these regulations are not a model of clarity.

[00:33:32] Speaker 05:
And you smile and acknowledge me.

[00:33:34] Speaker 05:
Let me give you another starting point.

[00:33:36] Speaker 05:
Section 11510 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.

[00:33:47] Speaker 05:
Why wouldn't a reasonable interpretation of these regulations be that all things considered, they get the permit conditionally.

[00:34:00] Speaker 05:
If they fail on the land swap or anything else, they lose it.

[00:34:07] Speaker 05:
If the navigation – there's no question on navigation, and as far as I understand, there is no navigation question here, right?

[00:34:16] Speaker 02:
That has not been the primary issue that is tying up.

[00:34:19] Speaker 02:
No, no, no.

[00:34:20] Speaker 05:
I'm asking the question.

[00:34:20] Speaker 05:
There's no navigation issue, right?

[00:34:22] Speaker 02:
Under the plans that the Coast Guard had evaluated, that's correct that the property issues were the issue holding up the permit.

[00:34:30] Speaker 03:
So the answer to the judge's question is yes.

[00:34:32] Speaker 03:
Is that correct?

[00:34:33] Speaker 03:
Because in the blue brief, they make that assertion, and in the red brief, you don't dispute it.

[00:34:39] Speaker 02:
It is my understanding that there are no particular navigation issues flagged.

[00:34:44] Speaker 02:
That's correct, Your Honor.

[00:34:45] Speaker 05:
Well, then why wouldn't 11510 require you to issue a permit?

[00:34:49] Speaker 05:
That's conditional.

[00:34:50] Speaker 05:
And if somehow the land swap, there's no problem with the air anymore.

[00:34:53] Speaker 05:
Well, I don't know.

[00:34:53] Speaker 05:
Let's assume that's still in battle, too.

[00:34:56] Speaker 05:
The air and property fail in three years, then the permit is rescinded by its own terms.

[00:35:06] Speaker 02:
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 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.

[00:35:29] Speaker 02:
And for a... What do you think primary authority means?

[00:35:32] Speaker 06:
What does that mean?

[00:35:34] Speaker 02:
It means that apart from issues of congressional consent, the applicant has to demonstrate that it possesses the ability and the requisite authority to go ahead with per construction.

[00:35:49] Speaker 06:
What about the language that opposing counsel points to?

[00:35:51] Speaker 06:
If the law of the state requires a license for approval from a constituted state agency, a copy of such license or approval

[00:36:03] Speaker 06:
may be accepted as evidence of the primary authority.

[00:36:08] Speaker 06:
So it doesn't say anything about the property at that stage.

[00:36:12] Speaker 06:
It says the license or approval by the state may be evidence of primary authority.

[00:36:19] Speaker 02:
Your Honor, and I think the maybe is part of the language that we should note here.

[00:36:25] Speaker 02:
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,

[00:36:39] Speaker 02:
presumed 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

[00:37:07] Speaker 03:
We're talking about state powers of eminent domain.

[00:37:10] Speaker 02:
Yes, Your Honor.

[00:37:13] Speaker 02:
I think 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.

[00:37:24] Speaker 02:
And here, what we have is a private entity that does not have such power, and that is not contested.

[00:37:29] Speaker 06:
Is your argument then that the second sentence is a further reference to the first sentence, bridges constructed by state or municipal agencies?

[00:37:38] Speaker 06:
Is that what you're saying?

[00:37:42] Speaker 06:
The second sentence, I think, sets... Does it apply to private enterprises, the second sentence?

[00:37:51] Speaker 02:
If a private enterprise were to be constructing a bridge on the basis of state authority, state-granted authority, I think that is a circumstance in which that sentence may come into play.

[00:38:02] Speaker 02:
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.

[00:38:12] Speaker 06:
I'm not telling why the second sentence doesn't apply here.

[00:38:18] Speaker 02:
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... Now imagine that the state of Michigan likes their plan and they want the bridge built and they give their license and approval.

[00:38:45] Speaker 06:
but they still don't own the land.

[00:38:48] Speaker 06:
Is that enough?

[00:38:52] Speaker 06:
You've got a congressional approval and you've got the state approval, but they haven't bought the land yet.

[00:38:59] Speaker 02:
And in your honor's hypothetical, the entity still remains a private entity?

[00:39:03] Speaker 06:
It's a bridge company and they've gotten approval from Congress and they've gotten approval from the state.

[00:39:10] Speaker 06:
There's no fight with Detroit.

[00:39:11] Speaker 06:
It's just they haven't yet bought the land from some private party maybe.

[00:39:15] Speaker 06:
that controls the access route.

[00:39:17] Speaker 06:
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.

[00:39:27] Speaker 06:
What does that mean in that circumstance?

[00:39:29] Speaker 02:
I think that this is another instance of authority that may be necessary, but may not in and of itself be sufficient.

[00:39:36] Speaker 06:
I see.

[00:39:36] Speaker 06:
So you think that there's something else beside, but there's no provision of the regulation that says what's sufficient.

[00:39:43] Speaker 06:
Is that the problem?

[00:39:45] Speaker 02:
Your Honor, and 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

[00:40:00] Speaker 02:
as either a public or private entity with different sets of circumstances, and the Coast Guard, as with any agency, making a determination based on the record before it has to take into account and factor in its decision-making, all of these criteria.

[00:40:16] Speaker 06:
There's such a thing as primary authority.

[00:40:17] Speaker 06:
There must be something called secondary authority.

[00:40:19] Speaker 06:
What's the secondary authority here?

[00:40:23] Speaker 06:
What does primary mean?

[00:40:24] Speaker 06:
What's the point of the adjective here?

[00:40:27] Speaker 02:
The regulations don't, as far as I'm aware, Your Honor, address secondary authority.

[00:40:31] Speaker 02:
The point of the primary authority here, I think, is to, is an instruction to the agency to itself to assure itself that the necessary rights and the necessary, that the applicant possesses the necessary rights to move forward.

[00:40:51] Speaker 05:
What's the answer to their question?

[00:40:52] Speaker 05:
Why would we do that?

[00:40:53] Speaker 05:
As reasonable business people,

[00:40:56] Speaker 05:
Why would we make all those purchases and acquisitions before we know we have a permit?

[00:41:03] Speaker 02:
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.

[00:41:21] Speaker 05:
and it's not uncompelling but 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 the 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?

[00:41:45] Speaker 05:
Why should they expend all the time and money

[00:41:48] Speaker 05:
when you're unwilling to certify that they have passed at least the navigation portion of it.

[00:41:55] Speaker 02:
Well, Your Honor, I would not characterize this as the Coast Guard being simply unwilling to, for example, do its job.

[00:42:02] Speaker 02:
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

[00:42:14] Speaker 02:
reviewing the engineering plans, engaging with the Environmental Protection Agency to undertake the environmental analysis.

[00:42:20] Speaker 02:
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.

[00:42:31] Speaker 03:
Well, let's suggest that the issue is whether the applicant has notice of what is required.

[00:42:42] Speaker 05:
That is the problem.

[00:42:43] Speaker 05:
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.

[00:42:55] Speaker 05:
I'm not sure listening to you, and I'm not sure whether these are three or four separate things here or what.

[00:43:01] Speaker 05:
It's totally unclear, so you've got a notice problem.

[00:43:04] Speaker 05:
What's an applicant supposed to figure?

[00:43:06] Speaker 05:
I think, Your Honor, the answer to the- They came in, as Chief Judge Garland suggested, they came in and said the state approves.

[00:43:12] Speaker 05:
They don't have a licensing scheme, but they approve.

[00:43:16] Speaker 05:
Is that enough?

[00:43:17] Speaker 05:
You're saying, well, it says May.

[00:43:19] Speaker 05:
Okay, so then I'm a smart business person.

[00:43:21] Speaker 05:
I say, well, what's behind the May?

[00:43:23] Speaker 05:
What else are you looking for, and where does the regulation say that?

[00:43:28] Speaker 02:
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.

[00:43:37] Speaker 02:
The company, the applicant in any scenario in the Coast Guard is in constant dialogue to figure out what the next steps are.

[00:43:45] Speaker 02:
And I think in all of that context, the applicant as any other business person then makes informed business decisions on how to proceed.

[00:43:55] Speaker 02:
With respect to the

[00:43:57] Speaker 03:
changing scenario on both sides.

[00:44:01] Speaker 03:
In 2006, the agency said the application was complete.

[00:44:05] Speaker 03:
Is that correct?

[00:44:09] Speaker 02:
At the time, it was deemed so under the bridge company's assurances to the Coast Guard that the property issue was resolved.

[00:44:20] Speaker 02:
However, in 2009, when the City of Detroit contacted the Coast Guard to inform the agency that

[00:44:28] Speaker 02:
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 your regulation perfectly six to nine They couldn't they couldn't get it done in three years.

[00:44:46] Speaker 05:
So they read the reg.

[00:44:48] Speaker 05:
I'm assuming And they said no.

[00:44:51] Speaker 05:
No, let's not proceed for now.

[00:44:53] Speaker 05:
We're going to come back again.

[00:44:54] Speaker ?:
I

[00:44:56] Speaker 02:
Your Honor, I think that this does go back to the language 115-05, and that regulation makes very clear that the applicant, in certain circumstances, may be required to furnish a statement of ownership.

[00:45:09] Speaker 02:
And 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.

[00:45:18] Speaker 02:
This language tracks the 1946 regulation issued by the War Department, which made clear

[00:45:23] Speaker 02:
that navigation is not the only thing that the Coast Guard looks at.

[00:45:26] Speaker 02:
In your honors 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 Dibbock's sort of worldview, there would be nothing that prevents applicants from submitting

[00:45:49] Speaker 02:
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.

[00:46:07] Speaker 03:
Well, look at this case.

[00:46:07] Speaker 03:
It's been a decade.

[00:46:09] Speaker 03:
If you had complied with the conditional permit approach, this administrative nightmare that you refer to

[00:46:19] Speaker 03:
would be non-existent.

[00:46:21] Speaker 03:
They'd either get the property or they wouldn't.

[00:46:25] Speaker 02:
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.

[00:46:36] Speaker 03:
No, I acknowledged up front that the 10 years period, it's not one side or the other.

[00:46:44] Speaker 03:
causing the problem.

[00:46:45] Speaker 03:
There have been changes on both sides.

[00:46:47] Speaker 03:
But at least under Judge Edwards' scenario, it seems, or not Judge Edwards' scenario, but the question he's asking you suggests that maybe that's more in line with what Congress had in mind and that the agency had in mind.

[00:47:02] Speaker 03:
And you read this regulation as talking about 99 percent of the cases where you're dealing with public entities that want to construct bridges.

[00:47:11] Speaker 03:
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.

[00:47:35] Speaker 02:
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.

[00:47:47] Speaker 03:
We're having trouble understanding regulations, all right?

[00:47:50] Speaker 03:
And it's not as though it says in a separate 115.05b, international bridges constructed by private parties.

[00:48:03] Speaker 03:
I mean, that's the problem in part here, isn't it?

[00:48:09] Speaker 02:
Respectfully, Your Honor, I disagree that that is a problem.

[00:48:12] Speaker 02:
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.

[00:48:29] Speaker 05:
You keep emphasizing your answer.

[00:48:31] Speaker 05:
I'm sorry.

[00:48:31] Speaker 05:
Go ahead.

[00:48:33] Speaker 05:
You keep emphasizing in your answer, you don't realize how many times you said this when you answer our questions on regs, you say, and then we may give a permit.

[00:48:42] Speaker 05:
That's the notice problem.

[00:48:43] Speaker 05:
You're saying we're not guaranteeing anything.

[00:48:45] Speaker 05:
Yeah, there are all these scenarios and they only result in maybe we'll give a permit.

[00:48:49] Speaker 05:
We're trying to figure out, well, what else is at stake and when does it arise?

[00:48:54] Speaker 05:
And you're not answering it.

[00:48:56] Speaker 05:
That second sentence highlights it.

[00:48:58] Speaker 05:
And you say, yeah, I see it, but that only says we may give a permit.

[00:49:02] Speaker 06:
I take it you're relying on this last sentence, right?

[00:49:04] Speaker 05:
Yeah.

[00:49:04] Speaker 06:
Special care will be taken.

[00:49:05] Speaker 06:
Federal approval is not granted when there's doubt about the right of the applicant to construct and utilize the bridge.

[00:49:13] Speaker 06:
That's your notice, right?

[00:49:14] Speaker 06:
That's the notice that's being given.

[00:49:15] Speaker 02:
That's correct, Your Honor, and the Coast Guard is not trying to hide the ball here.

[00:49:18] Speaker 02:
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 finality.

[00:49:32] Speaker 05:
You have the authority to do that.

[00:49:34] Speaker 05:
There is no property or navigation issue in this case.

[00:49:37] Speaker 05:
We're at the last stages.

[00:49:39] Speaker 05:
Your assertion is

[00:49:40] Speaker 05:
The only thing we're waiting for is the finish of the environmental and we're done.

[00:49:44] Speaker 05:
That's your assertion to the court on behalf of the Coast Guard, right?

[00:49:48] Speaker 05:
No, I'm serious now because this is nonsense.

[00:49:52] Speaker 05:
This has really gone on too long.

[00:49:54] Speaker 05:
There are no property rights as far as you're concerned at an issue unless this blows up.

[00:50:01] Speaker 05:
with Detroit, because the air and the property, there's a property swap and the air is no longer an issue.

[00:50:07] Speaker 05:
Navigation has never been an issue.

[00:50:09] Speaker 05:
The only issue is your final exchange with the EPA on environmental, right?

[00:50:15] Speaker 05:
That's your assertion to the court?

[00:50:17] Speaker 02:
Almost but not precisely, Your Honor.

[00:50:19] Speaker 02:
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, land, conservation areas.

[00:50:37] Speaker 02:
And so those approvals are outside of the Coast Guard's purview.

[00:50:43] Speaker 05:
Those are the only two conditions we're talking about.

[00:50:46] Speaker 05:
The swap has to be finally approved and the environmental.

[00:50:49] Speaker 05:
Everything else as far as the Coast Guard concern is done and you speculated that by the end of the year this should be over.

[00:50:56] Speaker 05:
That's only your speculation.

[00:50:58] Speaker 05:
I can't hold you to that, but I'm trying to figure out where we are.

[00:51:00] Speaker 05:
Because this is all silly now and this doesn't make any sense that this goes on and on and on.

[00:51:08] Speaker 02:
Your Honor, the Coast Guard is moving forward.

[00:51:10] Speaker 05:
No, no, I'm asking you, have I got it right?

[00:51:12] Speaker 05:
Is that the right picture?

[00:51:13] Speaker 05:
If I were to write something, or one of my colleagues were to write something, we said, look, this is here we are.

[00:51:18] Speaker 05:
This is where we are.

[00:51:19] Speaker 05:
There's very little left.

[00:51:21] Speaker 05:
Would we be inaccurate?

[00:51:23] Speaker 05:
There's no navigation issue.

[00:51:25] Speaker 05:
The swap is to be done.

[00:51:26] Speaker 05:
If it's approved, then we're fine.

[00:51:28] Speaker 05:
The air rights, we're fine.

[00:51:30] Speaker 05:
And the environmental, as soon as that approval comes through, we're done.

[00:51:34] Speaker 05:
This is over.

[00:51:37] Speaker 02:
Your honor, the agency has a duty as an agency.

[00:51:41] Speaker 05:
Yes or no?

[00:51:42] Speaker 02:
I believe, Your Honor, that unfortunately the questions of these regulatory regimes are always a little bit more complex than that.

[00:51:48] Speaker 05:
Basically... That's a notice problem, and then I don't know what we're talking about.

[00:51:52] Speaker 02:
Respectfully, Your Honor, I disagree.

[00:51:54] Speaker 02:
The Coast Guard, as Your Honor noted, that's correct.

[00:51:57] Speaker 02:
The land swap is in the final stages of approval, and 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

[00:52:10] Speaker 02:
all of the requisite National Environmental Policy Act processes attached to that.

[00:52:17] Speaker 02:
Pardon, Your Honor?

[00:52:19] Speaker 03:
In other words, now we have the National Park Service in here in addition to EPA.

[00:52:28] Speaker 03:
Let me ask you another question.

[00:52:31] Speaker 03:
In petitioners in appellants' reply briefs,

[00:52:36] Speaker 03:
pages 15 to 16, it cites several cases where private owners of an international bridge.

[00:52:51] Speaker 03:
Do you see that?

[00:52:52] Speaker 03:
Do you want to distinguish those cases for me?

[00:52:54] Speaker 03:
Or are the same distinctions you made in your responsive brief applicable here as well?

[00:53:02] Speaker 02:
We did make distinctions in our response brief, and I would add to address some of those particular instances.

[00:53:09] Speaker 02:
For example, the Bridge Company addresses the Presidio case.

[00:53:14] Speaker 02:
In that case, Mexico objected to the U.S.

[00:53:16] Speaker 02:
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

[00:53:28] Speaker 03:
that good authority or bad authority for you?

[00:53:31] Speaker 02:
Those records, they are 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.

[00:53:49] Speaker 03:
You made an assertion in your responsive brief that in all these cases,

[00:53:58] Speaker 03:
that Appellant's opening brief had cited.

[00:54:01] Speaker 03:
They were distinguishable because the applicant had the power of eminent domain.

[00:54:10] Speaker 03:
Now in the gray brief, the reply brief, Appellant comes back and says, not so.

[00:54:19] Speaker 03:
So my question to you is, who's right here?

[00:54:24] Speaker 03:
Are these cases covered by the same distinction you made in the red brief or are these different types of cases?

[00:54:33] Speaker 03:
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.

[00:54:44] Speaker 03:
So now I'm cited the Presidio Bridge Company.

[00:54:47] Speaker 03:
I'm cited the Central Railroad Company of New Jersey.

[00:54:52] Speaker 03:
And I thought in that case, well, maybe the state had given the railroad certain powers of eminent domain, but I don't know.

[00:54:59] Speaker 03:
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.

[00:55:19] Speaker 02:
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.

[00:55:26] Speaker 02:
permit, and there were other issues at play there.

[00:55:30] Speaker 02:
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.

[00:55:38] Speaker 02:
As for the

[00:55:41] Speaker 02:
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?

[00:55:52] Speaker 03:
The New Jersey, Central Railroad of New Jersey?

[00:55:59] Speaker 03:
The first citation for the Presidio Bridge, appellant says that the Coast Guard there acknowledged that it had no authority in its quoting.

[00:56:09] Speaker 03:
no authority to look into the ability of the applicant to construct the bridge.

[00:56:14] Speaker 03:
The second case cited is a private entity, allegedly the Central Railroad Company of New Jersey.

[00:56:22] Speaker 03:
And the gray brief says, notwithstanding the act of 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 had granted the permit.

[00:56:35] Speaker 03:
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.

[00:56:47] Speaker 02:
We do not believe that it's inconsistent, Your Honor, and this is because in this particular... First case, you told me Mexico is objecting.

[00:56:55] Speaker 03:
What's the distinction in the second case, the New Jersey Railroad case?

[00:57:02] Speaker 02:
Your Honor, I'll have to, I don't believe I have those notes up with me.

[00:57:05] Speaker 02:
I think that in that particular circumstance, the agency simply looked to other authority or, that record is just simply not before us.

[00:57:14] Speaker 02:
And so we don't know what it was that the Coast Guard was looking at in terms of authority to assure itself.

[00:57:19] Speaker 03:
You made a very broad assertion in your responsive brief.

[00:57:25] Speaker 03:
And now they have come back and said, in fact, that broad assertion is incorrect.

[00:57:32] Speaker 03:
So I think it is before us, at least to that extent.

[00:57:35] Speaker 03:
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.

[00:57:45] Speaker 03:
And indeed, in your red brief, you acknowledge that this case is unique.

[00:57:50] Speaker 02:
It is unique, Your Honor.

[00:57:51] Speaker 02:
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, is that there are not a lot of circumstances that this Court can look at for comparison.

[00:58:03] Speaker 02:
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

[00:58:13] Speaker 02:
asserted that because it was an international bridge that the state had no right and that local authorities had no right in their metal or to block any construction.

[00:58:22] Speaker 02:
And the court, 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 and here in this instance from... That's not inconsistent with Appellant's position here.

[00:58:37] Speaker 02:
The cases they cite, Your Honor, are not inconsistent with what the Coast Guard has done here.

[00:58:41] Speaker 03:
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.

[00:58:56] Speaker 03:
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.

[00:59:06] Speaker 03:
to a private party in an international bridge.

[00:59:10] Speaker 03:
Your Honor, I think that... So what is it about this case that distinguishes those past instances?

[00:59:19] Speaker 02:
In this particular instance, and I think that this, we can draw guidance from indeed the language of the 1946 regulations, which were in the books for a long time with no congressional override.

[00:59:30] Speaker 03:
They're not in the books now, so what use are they?

[00:59:33] Speaker 03:
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- I'm 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?

[00:59:55] Speaker 03:
I mean, it's interesting history about the evolution of the Coast Guard's thinking, but the Coast Guard has moved on.

[01:00:03] Speaker 02:
The Coast Guard has not moved on to the extent that I think that all of that language is still the core language as 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.

[01:00:21] Speaker 05:
The last sentence unfortunately for you does not say does not compel a showing of ownership.

[01:00:28] Speaker 05:
It just says to be cautious

[01:00:30] Speaker 05:
if there's some reason to be cautious, because you're not sure.

[01:00:34] Speaker 05:
I mean, it's just, it's not fitting.

[01:00:36] Speaker 05:
The last sentence does not compel ownership.

[01:00:39] Speaker 05:
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.

[01:00:50] Speaker 05:
Or, for example, you could have said, arguably, here, they pulled out initially.

[01:00:55] Speaker 05:
They did it.

[01:00:57] Speaker 05:
For whatever reason.

[01:00:58] Speaker 05:
So we're cautious.

[01:01:00] Speaker 05:
But it doesn't say we will not issue a permit unless they prove ownership.

[01:01:06] Speaker 05:
That's not what it says.

[01:01:08] Speaker 02:
It is correct, Your Honor.

[01:01:10] Speaker 02:
It does not say those words precisely.

[01:01:12] Speaker 02:
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.

[01:01:23] Speaker 02:
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.

[01:01:30] Speaker 02:
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.

[01:01:54] Speaker 02:
uh... in this circumstance that

[01:01:58] Speaker 05:
the feds aren't going to give approval all up and down the river are they?

[01:02:00] Speaker 02:
The congressional authorization said within I believe the 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

[01:02:26] Speaker 02:
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.

[01:02:34] Speaker 06:
Your NEPA, are you required to complete the NEPA analysis before you can grant a permit?

[01:02:40] Speaker 02:
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.

[01:02:48] Speaker 06:
But it's under another statute.

[01:02:50] Speaker 02:
Uh, that is under the environmental regulations underneath.

[01:02:53] Speaker 02:
But yes, your honor.

[01:02:54] Speaker 05:
Does it say that what the chief judge said?

[01:02:57] Speaker 05:
It does ask the EPA approval before you can grant the permit.

[01:03:00] Speaker 05:
Is that what it says?

[01:03:01] Speaker 06:
Does the statute say to find, for example, major government actions as including the granting of a permit?

[01:03:08] Speaker 06:
I think that I'm not positive.

[01:03:11] Speaker 06:
It doesn't appear to be discussed in the briefs, but I thought the statute says before there can be a

[01:03:17] Speaker 06:
I think the words are major government action, something like that.

[01:03:20] Speaker 06:
You're from the Environment Division.

[01:03:21] Speaker 06:
You must know the answer to this, right?

[01:03:23] Speaker 02:
That's correct, Your Honor.

[01:03:24] Speaker 03:
Under the regulations, yes.

[01:03:26] Speaker 02:
Yes, Your Honor.

[01:03:27] Speaker 02:
The question, and so in this circumstance, for example, some of the issues that are at play is whether the increased traffic along a twin span would lead to air quality issues that would cause the region to be out of compliance.

[01:03:41] Speaker 02:
And so in that circumstance, the Coast Guard as the federal agency undertaking and approving a major action

[01:03:49] Speaker 02:
It is under a duty and under a duty of good governance in general to assure itself that there are no environmental concerns before proceeding.

[01:03:57] Speaker 03:
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 has to approve before

[01:04:16] Speaker 03:
The application is approved.

[01:04:19] Speaker 03:
Everything else has to be done before

[01:04:24] Speaker 03:
you will grant the application.

[01:04:28] Speaker 02:
That is the bridge company's characterization and we do not believe that to be accurate.

[01:04:32] Speaker 02:
The Coast Guard is among the last but certainly not the last in the process.

[01:04:35] Speaker 02:
For example, generally there are Army Corps of Engineers permits that need to be granted.

[01:04:42] Speaker 02:
This would be under Clean Water Act, Section 404 oftentimes because the construction of a bridge may involve dredging filling.

[01:04:49] Speaker 03:
That's not a good example because I gave you the example of FERC issuing conditional

[01:04:53] Speaker 03:
permits subject to Clean Air, Clean Water Act type approvals?

[01:05:00] Speaker 02:
Certainly, Your Honor.

[01:05:02] Speaker 02:
Let me clarify my previous answer.

[01:05:04] Speaker 02:
The Coast Guard would not be awaiting the Army Corps, does not ordinarily await the Army Corps of Engineers permit before issuing its permit.

[01:05:12] Speaker 03:
So if there's another statutory scheme setting up a permit requirement, that would be a separate process, Your Honor.

[01:05:18] Speaker 03:
But you would do so with NEPA.

[01:05:21] Speaker 02:
That is because that is the Coast Guard's own action.

[01:05:25] Speaker 03:
That's what?

[01:05:25] Speaker 02:
That's because that pertains to the environmental review of the Coast Guard's own action.

[01:05:29] Speaker 02:
This is not Coast Guard review of other agencies' actions.

[01:05:37] Speaker 06:
I know there's no time left.

[01:05:39] Speaker 06:
We'll give you two more minutes.

[01:05:41] Speaker 02:
Thank you.

[01:05:45] Speaker 01:
Very quickly, Your Honor.

[01:05:46] Speaker 01:
First of all, on the rescission of this abeyance letter that Judge Edwards asked in the district court docket record at 115-8 is a November 19, 2009 email making clear that the Coast Guard understood that had been rescinded.

[01:06:00] Speaker 01:
And I think it's a non-issue in the case.

[01:06:02] Speaker 01:
Your Honor, I don't think there can be any dispute that the second sentence of 115-05 and everything after the first sentence applies to private applicants.

[01:06:09] Speaker 01:
The Coast Guard has never argued otherwise.

[01:06:12] Speaker 01:
The doubt sentence, the Coast Guard was asked about it, we were asked about it.

[01:06:17] Speaker 01:
The Council seems to want to reserve a lot of right to do whatever they want using the word may.

[01:06:23] Speaker 01:
They say they've given us notice.

[01:06:25] Speaker 01:
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 11505 is some freestanding, floating requirement that has nothing to do with primary authority.

[01:06:38] Speaker 01:
It is rooted in primary authority.

[01:06:39] Speaker 01:
They cannot take it out of that context.

[01:06:42] Speaker 01:
I would refer the court to the Supreme Court decision, Yates versus United States.

[01:06:46] Speaker 01:
135 Supreme Court, the pin site 1086, for the established interpretive rule, you have to read that last sentence in context.

[01:06:55] Speaker 01:
And they've tried to argue on page 9 of their brief they have some plenary authority.

[01:07:00] Speaker 01:
That shows you in a way how desperate they are.

[01:07:02] Speaker 01:
They say they have the authority Congress had when it gave us our original franchise.

[01:07:05] Speaker 01:
They do not.

[01:07:06] Speaker 01:
So it really boils down, Your Honor, that last sentence is about primary authority.

[01:07:09] Speaker 01:
So the question is, what is primary authority?

[01:07:12] Speaker 01:
Or if you give the agency deference, which we don't think you should, what is a reasonable interpretation of primary authority?

[01:07:18] Speaker 01:
Here's what we know for sure.

[01:07:20] Speaker 01:
primary authority does not include property ownership.

[01:07:23] Speaker 01:
That is crystal clear from 11505.

[01:07:26] Speaker 01:
Neither the district court nor the course 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.

[01:07:42] Speaker 01:
We also know that 11505 does not define necessary primary authority for an international bridge, because none of the things listed in it

[01:07:50] Speaker 01:
give you congressional authorization, which you need under Section 401 and 491.

[01:07:54] Speaker 01:
33 U.S.C.

[01:07:54] Speaker 01:
401, 33 U.S.C.

[01:07:56] Speaker 01:
491.

[01:07:58] Speaker 03:
I thought you just told us that everything after the first sentence of 115.05 applies to you.

[01:08:08] Speaker 01:
Applies to private applicants.

[01:08:12] Speaker 01:
There was a question as to whether, I thought the question was, maybe I misunderstood,

[01:08:17] Speaker 01:
that you asked counsel for the Coast Guard, does it apply to private applicants versus governmental applicants?

[01:08:22] Speaker 01:
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.

[01:08:29] Speaker 03:
But then you are bound by the last sentence, which, why isn't it a reasonable interpretation?

[01:08:36] Speaker 01:
I don't think you can read this regulation to tell you anything about what necessary primary authority is for an international bridge.

[01:08:46] Speaker 06:
Okay, can we just hold on that?

[01:08:47] Speaker 06:
So that means there's no regulations here that are relevant at all.

[01:08:51] Speaker 06:
Okay, that drives us back to the statute, which you were not able to be very persuasive about.

[01:08:56] Speaker 06:
You turn instead to the regulation.

[01:08:58] Speaker 06:
Now you're telling us the regulation doesn't even apply.

[01:09:02] Speaker 01:
before I leave the regulations, there's no regulation that does what this does on federal primary authority.

[01:09:07] Speaker 01:
But the regulation recognizes federal primary authority.

[01:09:10] Speaker 01:
The application requirements say you need to show us your congressional authorization and then alternative.

[01:09:18] Speaker 06:
I want to be clear.

[01:09:19] Speaker 06:
Your position is 115.05.

[01:09:22] Speaker 06:
You're about to get some help here behind you, apparently.

[01:09:27] Speaker 06:
It does not apply to you at all.

[01:09:29] Speaker 06:
Is that right?

[01:09:31] Speaker 01:
We don't think it applies unless you read charter to mean what we say, which in case we would have it.

[01:09:35] Speaker 01:
We don't think it is addressing federal primary authority for international bridges.

[01:09:40] Speaker 01:
The application requirements in 11550 do address what you need to show for an international bridge, as does the guide, as do the prior regulations.

[01:09:52] Speaker 01:
They all say the same thing, congressional authorization.

[01:09:56] Speaker 01:
If you look, please, at the guides at Joint Appendix 1101 for the 99 guide or 1034 for the 2011 guide, they both make clear that the stuff that's being talked about in 11505 is for domestic bridges, and then right underneath they say for international bridges, if applicable.

[01:10:13] Speaker 01:
Show us your special act of Congress.

[01:10:15] Speaker 01:
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.

[01:10:22] Speaker 01:
So they are crystal clear what you need to show of its international bridge.

[01:10:26] Speaker 01:
as are the application requirements, as are the old regulations, maybe a little more clear on this.

[01:10:31] Speaker 01:
And I gave a missed site, so I just, the two pages in the Joint Appendix on the original regs would be 357, Joint Appendix 357 and 374, which we do think make clear what you need to show for federal primary authority.

[01:10:44] Speaker 06:
The position then also that this 1946 regulation didn't apply to international bridges?

[01:10:51] Speaker 06:
The 1150, the version of... 330, yeah, 209.330.

[01:10:57] Speaker 01:
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.

[01:11:08] Speaker 05:
Do you have any authority from the agency or anywhere else suggesting that 11505 does not apply in international bridges?

[01:11:16] Speaker 05:
I think the past practice that the panel was asking... Is there anything where the agency has ever said, no, we don't intend this to cover international bridges?

[01:11:26] Speaker 01:
I don't think I have anything that clear.

[01:11:28] Speaker 01:
I think the guide pages I cited, the Court to Joint Appendix 1101 and 1034, do make that clear.

[01:11:35] Speaker 01:
I think those guides do make it clear as do the past practice with Presidio and with our own bridge in 1927.

[01:11:41] Speaker 06:
Do you agree that with respect to the NEPA question that they can't finalize the permit until the NEPA review is completed?

[01:11:53] Speaker 01:
I don't agree with that, Your Honor, because it's the exact same project that had a completed... Just on the law question, you agree that a permit

[01:12:03] Speaker 06:
Before they can grant a permit, they have to approve.

[01:12:07] Speaker 06:
Now, you're saying they should approve, but you agree on the law that they have to approve.

[01:12:11] Speaker 01:
Yes, we just think they've done it.

[01:12:12] Speaker 06:
Okay.

[01:12:13] Speaker 06:
But that's not before us at all, right?

[01:12:15] Speaker 01:
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.

[01:12:23] Speaker 06:
Why would that be?

[01:12:25] Speaker 06:
We have not a single bit of briefing or record on the question, other than your representation

[01:12:30] Speaker 06:
that they've already done it and their representation that it's different and they have to do it.

[01:12:35] Speaker 06:
The best you could get would be a remand on that question.

[01:12:39] Speaker 06:
Did you make that argument below even, the NEPA question argument?

[01:12:44] Speaker 01:
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.

[01:12:50] Speaker 01:
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.

[01:12:58] Speaker 01:
We think it's finished.

[01:12:59] Speaker 01:
They don't think it's finished.

[01:13:01] Speaker 01:
I might just go back to Judge Edwards' question.

[01:13:02] Speaker 01:
The other thing about

[01:13:04] Speaker 01:
We didn't cite to this in our brief.

[01:13:06] Speaker 01:
33 CFR 115.30 is another regulation.

[01:13:12] Speaker 01:
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.

[01:13:23] Speaker 01:
So if it seems anomalous to the panel, why would they write a regulation without talking about the international bridges?

[01:13:29] Speaker 01:
I at least have another example to show you where they did just that.

[01:13:33] Speaker 06:
there's anybody else on the bench since we're almost six minutes over.

[01:13:40] Speaker 06:
We'll take the matter under submission.

[01:13:41] Speaker 06:
Thank you.