Michigan v. U.S. Army Corps of Eng’rs, 758 F.3d 892 (7th Cir. 2014) (holding: (i) federal agencies are subject to public nuisance claims for their choice of policy implementation options; (ii) appellee agencies were not authorized by statute to operate waterways in the interest of navigation to the exclusion of potential environmental harms; (iii) appellants had not alleged sufficient facts to show appellees’ operation of the waterway constituted a public nuisance).
In the early twentieth century, a series of canals were constructed to connect Lake Michigan to the Mississippi River—two of the country’s most crucial navigable waterways. Near the same time, the Chicago Area Waterway System (“CAWS”) was constructed and the flow of the Chicago River was reversed to carry Chicago’s wastewater away from Lake Michigan. In the 1970s, further down the Mississippi River, aquatic farmers introduced bighead and silver Asian carp into their facilities to mitigate unwanted plant growth. Flooding in the area eventually allowed the Asian carp to navigate into open freshwater systems and ultimately within six miles of Lake Michigan and subsequently all of the Great Lakes.
As a species, Asian carp present potential harm both to the ecosystems they occupy and to individuals in their vicinity. Asian carp are insatiable eaters that consume food in such amounts that they crowd out other species of fish by eliminating their food supply. In addition, Asian carp present dangers to individuals in their vicinity by leaping out of the water when agitated and causing damage to watercraft and injury to individuals on board.
To address the growing concern of Asian carp advancement, the Army Corps of Engineers (“Corps”) and the Metropolitan Water Reclamation District of Greater Chicago (“District”) have attempted preventative measures for more than a decade. In 2002, the Corps introduced the Dispersal Barrier System to kill or shock fish that passed by. By 2011, a total of three barriers had been constructed in the CAWS. After a spotting of Asian carp near one of the barriers in 2009, the Corps introduced fish poison—rotenone—near the barrier twice. By 2010, the Asian Carp Regional Coordinating Committee—a group including federal, state, and Canadian authorities lead by the White House Council on Environmental Quality—began monitoring Asian carp in the CAWS. Through April 2014, none of the Committee’s tests indicated the presence of Asian carp beyond the barriers.
Nevertheless believing that the Asian carp presented an imminent and serious threat, five states (Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania), joined by the Grande Traverse Band of Ottawa and Chippewa Indian tribe, (collectively, “States”) brought suit against the Corps and District. The States claimed that the Asian carp would either soon or already had invaded the Great Lakes, which would result in billions of dollars of damage. Specifically, the States claimed that the Corps and District had failed to act according to their responsibility of preventing the potential Asian carp damage and sought a permanent injunction under the federal common law of public nuisance. The injunction required the Corps and District to expeditiously develop and implement measures to create a complete hydrological separation between Lake Michigan and the Mississippi River Basin. The States also demanded an expedited completion of a congressionally mandated report on the options of measures available to prevent aquatic nuisance species between the Great Lakes and the Mississippi River (“the Report”).
At trial, the States sought a preliminary injunction requiring the Corps and District to take aggressive interim steps to stop the advancement of the Asian carp. The United States District Court for the Northern District of Illinois (“district court”) denied the preliminary injunction, stating that the States had failed to prove that irreparable injury would occur before resolution of the underlying litigation. On appeal, the United States Court of Appeals for the Seventh Circuit (“court”) affirmed the denial of preliminary injunctive relief. The district court ultimately dismissed the States’ suit for failure to state a claim. In so holding, it reasoned that the operation of the CAWS and Lake Michigan-Mississippi River connection did not constitute a public nuisance because such operation was both lawful and required under the law.
Between the district court’s decision and the States’ appeal, the Corps completed the Report, which proposed eight alternative plans to prevent aquatic nuisance in the area. However, the Corps declined to make a recommendation in the Report due to the need for further technical and policy evaluations. The proposed options ranged in cost between $7.8 billion to upwards of $18.3 billion for lakefront hydrological separation. In addition to being among the most expensive options, the Corps stated that a hydrological separation would also have significant negative effects in the waterways in terms of navigability, water quality, and ecology.
On appeal, the court first indicated an appreciation for the potential dangers at stake regarding the advancement of Asian carp for the States, noting that the risk of danger had increased since the start of litigation. First, the court held that agencies of the federal government are subject to federal public nuisance actions. The court explained that, when federal agencies act according to their enabling statutes, their activity represents a balancing of interests undertaken by Congress, which therefore reflects the public interest and precludes public nuisance claims. However, an agency’s choice among options to implement a policy is not subject to such rigorous interest balancing and may not categorically represent the underlying public interest. Accordingly, these actions may be subject to public nuisance claims. The court emphasized that the agencies were authorized by statute to operate the CAWS in a manner conducive to facilitating navigation but, contrary to the district court’s conclusion, were not authorized to execute these duties while disregarding the potential environmental impacts of doing so, including the advancement of potentially hazardous fish species. However, the court also held that the Corps and District had been dutiful in their efforts to accomplish both of their responsibilities: to operate the CAWS waterways in such a way that would prevent the advancement of Asian carp into Lake Michigan while facilitating navigation. The court indicated that, even in a light most favorable to the States, there were insufficient facts to suggest the Asian carp would advance beyond the Corps’ and District’s current prevention attempts, nor that the Corps and District would fail to adjust their efforts should the current attempts fail. Accordingly, the States had not alleged sufficient facts for the court to hold that the Corps’ or District’s current actions constituted a public nuisance.
The court also held that it would be inappropriate for the federal judiciary to grant the States’ request for an injunction requiring the construction a hydrological separation under the Rivers and Harbors Act. That Act precludes the court from ordering an injunction requiring the Corps to construct a separation of the waterways, in light of concerns regarding impediments to navigation of crucial interstate or international waterways. Instead, the court indicated that other remedies should be considered in this case, including judicial review of the recommendation chosen by the Corps and District to solve the Asian carp problem and a claim for review of agency action, should the Corps or District halt their preventative measures unlawfully. Finally, the court held that the States were not precluded from bringing suit in the future, should the advancement of Asian carp be imminent and occur as a result of the Corps’ or District’s negligence in operating the waterways.
Accordingly, the court affirmed the judgment of the district court’s dismissal of the State’s suit against the Corps and District for failure to state a claim.
The title image features an Asian Carp leaping out of the water. This file is licensed under the Creative Commons Attribution 2.0 Generic license.