Dep't of Transp. v. Riverview-Trenton R.R. Co.

• Decision Date: 18 June 2020
• Docket Number: No. 346115,No. 345708, No. 346117, No. 346111, No. 346109, No. 346105, No. 346118, No. 346106, No. 346113, No. 346122, No. 346107, No. 346110, No. 346120, No. 346108, No. 346119, No. 346116, No. 346114, No. 346112, No. 346121,345708
• Citation: 332 Mich.App. 574,958 N.W.2d 246
• Parties: DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee, v. RIVERVIEW-TRENTON RAILROAD COMPANY and Central Transport, LLC, Defendants-Appellants, and City of Detroit, Dome Pipeline Corporation, DTE Electric Company, EES Coke Battery, LLC, Economic Development Corporation of the City of Detroit, EDW C. Levy Co., Honeywell International, Inc., International Transmission Company, J.P. Morgan Chase Bank NA, S&L Development Co., and United States Steel Corp., Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit and Department of Natural Resources, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and Department of Natural Resources, Defendant. Department of Transportation, Plaintiff-Appellee, v. Detroit International Bridge Company, Defendant-Appellant, and City of Detroit and Department of Natural Resources, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Wayne Scrap Iron & Metal Company and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and City of Detroit, Benjamin Zucker or His Unknown Heirs, Devisees, Legatees and Assigns, and Rose Zucker or Her Unknown Heirs, Devisees, Legatees and Assigns, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Arcola Clark or Her Unknown Heirs, Devisees, Legatees and Assigns, Gwendolyn Marie Smith or Her Unknown Heirs, Devisees, Legatees and Assigns, and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and City of Detroit, DTE Electric Company, Express Service Enterprises, Inc., Flagstar Bancorp, Inc., Thomas McAllen or His Unknown Heirs, Devisees, Legatees and Assigns, Aileen McAllen or Her Unknown Heirs, Devisees, Legatees and Assigns, Business Loan Center, LLC, United States of America Department of Treasury/Internal Revenue Service, and AFT Investments, LLC, Defendants. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and Morton Industrial Group, Inc., as Successor in Interest to McLouth Steel Corporation, Department of Natural Resources, and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and Irene Garza and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Department of Natural Resources and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Curtis Penick and City of Detroit, Defendants. Department of Transportation, Plaintiff-Appellee, v. Crown Enterprises, Inc., Defendant-Appellant, and Rye Gentry Trucking, Inc., Carol A. Gentry Trust Dated 11/8/2000 As it May be Amended, and Carol A. Gentry, Individually and as Trustee, Defendants. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and City of Detroit, Defendant. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and City of Detroit, Department of Natural Resources, Samir Habib-Shamkh Al-Fatlawi, Maria Antonieta Pardo-De-Garcia, Marjorie Zaizar, and Ramiro Zaizar, Defendants. Department of Transportation, Plaintiff-Appellee, v. DIBDetroit, LLC, Defendant-Appellant, and Department of Natural Resources, Defendant.
• Court: Court of Appeal of Michigan — District of US

332 Mich.App. 574

958 N.W.2d 246

DEPARTMENT OF TRANSPORTATION, Plaintiff-Appellee,

v.RIVERVIEW-TRENTON RAILROAD COMPANY and Central Transport, LLC, Defendants-Appellants,andCity of Detroit, Dome Pipeline Corporation, DTE Electric Company, EES Coke Battery, LLC, Economic Development Corporation of the City of Detroit, EDW C. Levy Co., Honeywell International, Inc., International Transmission Company, J.P. Morgan Chase Bank NA, S&L Development Co., and United States Steel Corp., Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andCity of Detroit and Department of Natural Resources, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andCity of Detroit, Defendant.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andCity of Detroit, Defendant.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andDepartment of Natural Resources, Defendant.

Department of Transportation, Plaintiff-Appellee,

v.Detroit International Bridge Company, Defendant-Appellant,andCity of Detroit and Department of Natural Resources, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andWayne Scrap Iron & Metal Company and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andCity of Detroit, Benjamin Zucker or His Unknown Heirs, Devisees, Legatees and Assigns, and Rose Zucker or Her Unknown Heirs, Devisees, Legatees and Assigns, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andArcola Clark or Her Unknown Heirs, Devisees, Legatees and Assigns, Gwendolyn Marie Smith or Her Unknown Heirs, Devisees, Legatees and Assigns, and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andCity of Detroit, Defendant.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andCity of Detroit, DTE Electric Company, Express Service Enterprises, Inc., Flagstar Bancorp, Inc., Thomas McAllen or His Unknown Heirs, Devisees, Legatees and Assigns, Aileen McAllen or Her Unknown Heirs, Devisees, Legatees and Assigns, Business Loan Center, LLC, United States of America Department of Treasury/Internal Revenue Service, and AFT Investments, LLC, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andMorton Industrial Group, Inc., as Successor in Interest to McLouth Steel Corporation, Department of Natural Resources, and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andIrene Garza and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andDepartment of Natural Resources and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andCurtis Penick and City of Detroit, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.Crown Enterprises, Inc., Defendant-Appellant,andRye Gentry Trucking, Inc., Carol A. Gentry Trust Dated 11/8/2000 As it May be Amended, and Carol A. Gentry, Individually and as Trustee, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andCity of Detroit, Defendant.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andCity of Detroit, Department of Natural Resources, Samir Habib-Shamkh Al-Fatlawi, Maria Antonieta Pardo-De-Garcia, Marjorie Zaizar, and Ramiro Zaizar, Defendants.

Department of Transportation, Plaintiff-Appellee,

v.DIBDetroit, LLC, Defendant-Appellant,andDepartment of Natural Resources, Defendant.

No. 345708

No. 346105

No. 346106

No. 346107

No. 346108

No. 346109

No. 346110

No. 346111

No. 346112

No. 346113

No. 346114

No. 346115

No. 346116

No. 346117

No. 346118

No. 346119

No. 346120

No. 346121

No. 346122

Court of Appeals of Michigan.

Submitted June 2, 2020, at Detroit.

Decided June 18, 2020, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Mark J. Zausmer, Mischa M. Boardman, and Devin Sullivan, Special Assistant Attorneys General, for the Department of Transportation.

Boies Schiller Flexner LLP (by Hershel Wancjer, Hamish P. M. Hume, Samuel Kaplan, and James A. Kraehenbuehl ) for Riverview-Trenton Railroad Company, Crown Enterprises, Inc., and others.

Before: Cavanagh, P.J., and Stephens and M. J. Kelly, JJ.

Per Curiam.

In these 19 consolidated appeals,¹ various entities controlled by Manuel "Matty" Moroun (the Moroun entities)² appeal by leave granted³ two orders of the circuit court rejecting challenges to the authority of the Michigan Department of Transportation (MDOT) to condemn property for the construction of the Gordie Howe International Bridge (GHIB). We affirm.

I. FACTS

The history of the GHIB extends back nearly two full decades. We need not provide extensive detail to resolve the present matter, so instead we provide a limited summary of the relevant facts, the majority of which involve appropriations bills enacted since 2011 and other litigation involving the GHIB.

MDOT, the Federal Highway Administration (FHA), Transport Canada, and the Ontario Ministry of Transportation formed a partnership in 2001 to investigate the feasibility of constructing a new international bridge connecting Detroit and Windsor, Ontario. See Latin Americans for Social & Economic Dev. v. FHA Administrator , 756 F.3d 447, 454 (C.A. 6, 2014). A lengthy process resulted in the selection in 2009 of Detroit's Delray neighborhood as the preferred location for the site of a new international bridge.⁴ Id. at 451, 453-461.

In an appropriations bill that took effect on June 21, 2011, our Legislature included the following language as Art. XVII, Part 2, § 384 of 2011 PA 63:

(1) The department shall not expend any state transportation revenue for construction planning or construction of the Detroit River International Crossing or a renamed successor. In addition, except as provided in subsection (3), the department shall not commit the state to any new contract related to the construction planning or construction of the Detroit River International Crossing or a renamed successor unless the legislature has enacted specific enabling legislation to allow for the construction of the Detroit River International Crossing or a renamed successor.

(2) On or before March 31, 2012, the department shall report to the state budget director, the house and senate appropriations subcommittees on transportation, and the house and senate fiscal agencies on department activities related to the Detroit River International Crossing or a renamed successor.

(3) If the legislature enacts specific enabling legislation for the construction of the Detroit River International Crossing or a renamed successor, subsection (1) does not apply once the enabling legislation goes into effect.

Subsequently, a bill that would have authorized the new international bridge died in Michigan's Senate after being rejected by a committee vote in October 2011.⁵

Nonetheless, on June 15, 2012, Her Majesty the Queen in Right of Canada (represented by the Canadian Minister of Transport), the Windsor-Detroit Bridge Authority (WDBA), and the "Michigan Parties"—the state of Michigan, "as represented by its Governor, and by and through" MDOT, and the Michigan Strategic Fund (MSF)—entered into the "Crossing Agreement," which

provide[d] a framework for a Crossing Authority established by Canada to design, construct, finance, operate and maintain a new International Crossing between Canada and Michigan, under the oversight of a jointly established International Authority with three members appointed by Canada and the Crossing Authority and three members appointed by the Michigan Parties, and with funding approved by Canada, but with no funding by the Michigan Parties. The Michigan Parties are not obligated to pay any of the costs of the new International Crossing.

The "purpose" section of the agreement explains that the purpose of the Crossing Agreement is to "provide a framework for the Crossing Authority" to "design, construct, finance, operate and maintain the International Crossing" and a "US Federal Plaza" "with the assistance as necessary, but not funding by, Michigan[.]"

Under the Crossing Agreement, the Canadian Crossing Authority "shall be responsible for International Crossing Project Activities and shall be responsible for the design, construction, financing, operation and maintenance of the International Crossing ...." The Crossing Authority is also given authority to collect tolls. MDOT is responsible for acquiring, through condemnation if necessary, Michigan land needed for construction of the bridge. However, funding for acquiring property comes from Canada through the Crossing Authority. At his deposition, Myron Frierson, the deputy director of finance administration for MDOT, explained that the parties have created a reimbursement procedure: MDOT and the WDBA agree to a budget for anticipated activities, and the WDBA places funds in escrow; MDOT spends money out of the state trunk line fund and sends invoices to the WDBA; the invoices are approved by the WDBA, the escrow agent disburses funds to MDOT, and those funds are placed in the state trunk line fund.

In its June 26, 2012 appropriations bill, the Legislature reenacted § 384 with its prohibition against MDOT "expend[ing] any state transportation revenue for construction planning or construction of the Detroit River International Crossing or a renamed successor" absent legislative authorization. 2012 PA 200, Art. XVII, Part 2, § 384(1) and (3). MDOT was again required to provide quarterly reports to various entities regarding...