Masse's Border Authority

I see that NDP MP Brian Masse is out there promoting his Border Authority again.

• "Renewing his call for a public authority to oversee the Windsor-Detroit corridor’s border crossings, MP Brian Masse (NDP — Windsor West) said it should include elected representatives who “are answerable to the community and its constituents.”

I would assume that Brian would insist that whoever was the MP from Windsor West needs to be part of that Authority too since the bridge is part of the riding. I would hope that he would also insist that the elected members of the Authority would not expect any salary for their work since taxpayers are already giving them money!

And now it looks like Detroit and Windsor want to be involved with a Border Authority.

Before we get too hung up praising this concept, it might be worthwhile taking a bit of time and looking at their pros and cons.

There are concerns about Border Authorities that were revealed by the New York Governor when he was Attorney General [BLOG, Tuesday, June 27, 2006 "More On Public Authorities"].

Now Brian likes to talk about the Buffalo and Fort Erie Public Bridge Authority. I do not know if he intends to use it as his model for a Border Authority or not. If he chooses to do so, he should understand that this one seems to be a very unique institution. It calls itself "an international compact entity."

There are consequences if "an international compact entity" is set up here. Read what some of them are below and decide for yourself whether you want this model for Windsor.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________

MARK B. MITSKOVSKI,
ELIZABETH A MARTINA,
THOMAS J. PISA,
Civil Action No.
Petitioners, 04-CV-0465(Sr)
vs.

BUFFALO AND FORT ERIE PUBLIC
BRIDGE AUTHORITY,
Respondent.
________________________________________



RESPONDENT'S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Petitioners have alleged that the Authority is a New York State agency, subject to all obligations and duties of New York state agencies, including the New York Freedom of Information Law (FOIL), the New York Open Meetings Law and the New York State Environmental Quality Review Act ("SEQRA"), as well as a certain site plan review ordinance of the City of Buffalo, and they seek a declaratory judgment to that effect.

However, it is now the law of the case that the Authority is an international compact entity, the product of a compact between New York and Canada, approved by Congress, as the Second Circuit has ruled, and not an agency of the state of New York. Therefore, this Court must reject the petitioners' request for a declaration that the Buffalo and Fort Erie Public Bridge Authority is a New York state agency subject to all obligations and duties of New York state agencies.

As set forth herein, it is settled law in this Circuit that state and local law cannot apply to compact entities unless all sovereigns who are parties to the compact expressly agree. Thus, the claims alleged by the petitioners, i.e., violations of SEQRA, FOIL, the State Open Meetings Law, the Buffalo Code or any other state or local law, cannot be interposed against the Authority unless the consent of the governments of New York and Canada appears in the compact documents. An examination of the documents comprising the Authority's compact reveals that there has been no such consent allowing either New York or Canada to unilaterally impose such law upon the Authority.


B. The State and Local Laws in Issue Do Not Apply to the Authority

State and local law cannot apply to compact entities unless all sovereigns who are parties to the compact expressly agree. State and local law can be applied to a compact entity only if the compact specifically reserves to such governments the right to do so. The compact documents plainly show no such reservation pertaining to the Authority. Accordingly, the Authority, as an international compact entity, is not subject to the unilateral legislative fiat of either New York or Canada.

Because the express terms of the compact do not refer to SEQRA, FOIL, the State Open Meetings Law, the City of Buffalo site-planning review ordinance or any other state or local law,the petitioners cannot interpose the same against the Authority without the consent of the governments of New York and Canada, unless the Court interprets the compact to intend such application implicitly.

AFFIDAVIT OF Ron Rienas, is General Manager, Buffalo and Fort Erie Public Bridge Authority.

9. Because our operations are so highly visible and because so many of our activities are political in nature, we may choose to voluntarily apply laws and regulations on both sides of the border to the extent that they do not conflict with our compact documents. Our goal is to maintain a political balance and be a good public citizen in Buffalo and Fort Erie, while accommodating the needs and desires of the federal agencies from both countries that operate on our plazas.

10. An example of such voluntary compliance is that the Authority voluntarily undertook a New York State Environmental Quality Review Act (“SEQRA”) review of the BIF Project on the U.S. side.A Canadian Environmental Assessment Act (“CEAA”) review on the Canadian side was also completed.

17. Although the terms of the Authority’s compact do not require it to comply with New York State’s Environmental Quality Review Act with respect to the BIF Project, for political reasons we voluntarily undertook a SEQRA analysis with respect to the U.S. plaza project components.