Presidio Bridge Co. v. Secretary of State

• Decision Date: 24 July 1978
• Docket Number: No. P-76-CA-17.,P-76-CA-17.
• Citation: 486 F. Supp. 288
• Parties: PRESIDIO BRIDGE COMPANY v. The SECRETARY OF STATE of the United States and the Department of State of the United States.
• Court: U.S. District Court — Western District of Texas

486 F. Supp. 288

PRESIDIO BRIDGE COMPANY v. The SECRETARY OF STATE of the United States and the Department of State of the United States.

No. P-76-CA-17.

United States District Court, W. D. Texas, Pecos Division.

July 24, 1978.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ray Pearson, El Paso, Tex., for plaintiff.

Jamie C. Boyd, U. S. Atty., by Asst. U. S. Atty., Jeremiah Handy, San Antonio, Tex., for defendant.

MEMORANDUM ORDER

SUTTLE, District Judge.

The Presidio Bridge Company ("the Company") has owned and operated the only toll bridge spanning the Rio Grande River between Presidio, Texas, and Ojinaga, Mexico, for fifty years. On July 26, 1976, the State Department issued a permit to Presidio County, Texas, allowing the county to construct a second bridge between Presidio and Ojinaga. Shortly thereafter, the Company brought this suit seeking a declaratory judgment that the permit is invalid.

Two separate theories form the basis for the complaint: first, that in issuing the permit the State Department failed to comply with the procedural requirements mandated by Executive Order 11423 and the International Bridge Act of 1972, 33 U.S.C. §§ 535 et seq.; and, second, that "the environmental assessment of the proposed bridge prepared by the Department and the related negative determinations were not prepared in accordance with the National Environmental Policy Act NEPA, 42 U.S.C. Sections 432 4321 et seq., and the procedures adopted by the Department of State to be followed to comply with federal environmental statutes." Jurisdiction is asserted to be vested in this court under 5 U.S.C. §§ 701, 702 and 28 U.S.C. § 1337. Because the nature of the suit requires the court to venture forth into what has been an unchartered area of the law, a review of the facts, statutes, and status of the suit are in order.

I

A.

The Bridge Act of 1906, 33 U.S.C. §§ 491-498, provided that "when after March 23, 1906, authority is granted by Congress to any persons to construct and maintain a bridge across or over any navigable waters of the United States" the bridge must be built in conformity with the provisions in the Act. 33 U.S.C. § 491. Obviously, one mandatory provision was to obtain "authority" from Congress to build a bridge in the first place. Congress gave P. D. Anderson, H. E. Dupay, and their successors and assigns consent to build and maintain a bridge between Presidio and Ojinaga on March 10, 1926. The Presidio Bridge Company took over operation of the bridge as the assignee of Anderson and Dupay December 9, 1927. Thirty years later the Republic of Mexico took control of the portion of the bridge located within Mexico; the Company has operated the American portion continuously from 1927.

In 1946 Congress amended the 1906 Act. The "General Bridge Act of 1946," 33 U.S.C. §§ 525-533, made life a bit easier for a prospective bridge builder by giving, in advance, Congressional consent "for the construction, maintenance, and operation of bridges and approaches thereto over the navigable waters of the United States" in accordance with the procedures detailed in the Act. 33 U.S.C. § 525(a). Thus, it was no longer necessary for a prospective builder to secure passage of a bill by Congress granting permission to build; that hurdle was eliminated — with one exception: § 531 provided that the Act "shall not be construed to authorize construction of any bridge which will connect the United States . . . with any foreign country." Bridges to Mexico, then, still needed passage of a bill by Congress if they were to be built.

This exception proved to be a constant irritant both to Congress and to prospective builders, and thus throughout the 1960's attempts were made to correct the situation. It is worthwhile to quote in some detail from the legislative history to what was to become the penultimate solution, the International Bridge Act of 1972, 33 U.S.C. §§ 535-535i:

BACKGROUND

Since enactment of the General Bridge Act of 1946, which exempted international bridges from its application, Congress has had to give separate approval to some 30 such bridges. In the early 1960's, this situation, aggravated by local controversies between bridge entrepreneurs along the Rio Grande, led the Committee on Foreign Relations to explore other means of authorizing the construction of international bridges. After extensive consultation with the executive departments primarily concerned with these questions, a draft of an omnibus bill was produced, which the committee and the Senate first approved in 1964. The same bill passed the Senate again in 1965 and in 1967, but was not finally enacted by the House. It was reintroduced as S. 3578 in the 91st Congress, but no action was taken. On September 15, 1971, the executive branch submitted a new draft of legislation on which H.R. 15577 the bill that became law is largely based. Emphasis added.

1972 U.S.Code Cong. and Admin.News, pp. 3399-3400.

While Congress was attempting to reach an agreement on a bill, President Johnson issued Executive Order 11423 on August 16, 1968. That order, titled "Providing for the Performance of Certain Functions Heretofore Performed by the President with Respect to Certain Facilities Constructed and Maintained on the Borders of the United States," designated the Secretary of State "to receive all applications for permits for the construction . . . at the borders of the United States, of . . . (IV) bridges, to the extent that congressional authorization is not required." Executive Order 11423, § 1(a). As of August 16, 1968, Congressional authorization was still required for all international bridges; however, that authorization was in the process of being secured. The order then provided an elaborate procedure for the Secretary to follow; it will be explored fully in Part III of this order.

As noted, Congress remedied the situation with passage of the 1972 act, of which two sections specifically concern the ability of a state or one of its political subdivisions to enter into agreements to build bridges between itself and Mexico:

§ 535a. Congressional consent to State agreements with Canada and Mexico; Secretary of State's approval of agreements

The consent of Congress is hereby granted for a State or a subdivision or instrumentality thereof to enter into agreements —

(1) with the Government of Canada, a Canadian Province, or a subdivision or instrumentality of either, in the case of a bridge connecting the United States and Canada, or

(2) with the Government of Mexico, a Mexican State, or a subdivision or instrumentality of either, in the case of a bridge connecting the United States and Mexico,

for the construction, operation, and maintenance of such bridge in accordance with the applicable provisions of this Act. The effectiveness of such agreement shall be conditioned on its approval by the Secretary of State.

§ 535b. Presidential approval; recommendations of Federal officials

No bridge may be constructed, maintained, and operated as provided in section 535 of this title unless the President has given his approval thereto. In the course of determining whether to grant such approval, the President shall secure the advice and recommendations of (1) the United States section of the International Boundary and Water Commission, United States and Mexico, in the case of a bridge connecting the United States and Mexico, and (2) the heads of such departments and agencies of the Federal Government as he deems appropriate to determine the necessity for such bridge.

In June, 1973, Presidio County applied to the Secretary to build the bridge that is in issue here. After filing the application, however, the County did not pursue it, choosing instead to enter into negotiations with the Company in an effort to purchase the existing bridge. On November 9, 1973, the Company received an amendment to its permit under 33 U.S.C. § 491, for the reconstruction of its bridge. Negotiations broke down in 1975 before an agreement could be reached. The County then began to actively seek approval of its application. For its part, the Mexican government made it clear that it did not care who ran the bridge, but that it would operate only one bridge on its side of the border; thus, approval of the County's permit would put the Company out of business.

The Company chose to actively oppose the County's application. A public hearing was held March 25, 1976, at the Company's request, regarding the application. Representatives from the Company appeared at the hearing and testified. On July 2, 1976, the State Department recommended that the application be approved. It then attempted to comply with the provisions of Executive Order 11423, § 1(f), infra; and it actually issued the permit on July 26, 1976. The Company then filed this suit August 14, 1976.

B.

The Government responded to the complaint with a motion to dismiss under Rule 12(b)(1), F.R.Civ.P., for lack of jurisdiction over the subject matter — more particularly, that the Company did not have standing to raise its claims — or, in the alternative, under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Oral argument on the motion was heard October 27, 1977, and the matter was taken under advisement.¹

On March 9, 1978, the court issued an "Order Setting Schedule" in which it held that the Company had sufficient standing to assert the Bridge Act claim. In reaching that decision, however, the court found it necessary to consider various affidavits and exhibits outside the pleadings; therefore, it was required by Rule 12(b) to properly treat the (b)(6) motion as one for summary judgment governed by the provisions of Rule 56. Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1971). For reasons of time, the court elected to postpone any consideration of the NEPA issues and proceeded to set a schedule for the filing of motions for summary judgment, oppositions to the motions, and...