U.S. Supreme Court Allows Takings Claim to Proceed for Temporary Flooding by Dam Releases, but Remands for Consideration of State Water Law Doctrine
Great Lakes Symposium in Chicago hosted by DePaul Law Review

Federal district court dismisses states’ lawsuit seeking hydrologic separation of the Great Lakes and Mississippi River Basin to stop invasive Asian carp; states appeal

The Great Lakes states have lost another round in the legal fight to stop the spread of invasive Asian carp from the Mississippi River Basin. A federal district court has dismissed the suit brought by Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania against the U.S. Army Corps of Engineers and Chicago’s Metropolitan Water Reclamation District, seeking measures to prevent Asian carp from moving through the Chicago Area Waterway System into Lake Michigan. (Michigan v. U.S. Army Corps of Eng’rs, No. 10-cv-4457 (N.D. Ill. Dec. 3, 2012)). The plaintiff states have already appealed the decision to the Seventh Circuit Court of Appeals.

The plaintiff states had first pursued relief in the U.S. Supreme Court in December 2009, seeking a reopening of the Court’s decree in Wisconsin v. Illinois authorizing the Chicago diversion with waterways connecting the Great Lakes to the Mississippi River Basin. The Supreme Court rejected the states’ petition without opinion in April 2010, leaving the states to seek relief in lower courts. In July 2010, the plaintiff states filed suit in the U.S. District Court for the Northern District of Illinois, claiming that the U.S. Army Corps of Engineers and Metropolitan Water Reclamation District of Greater Chicago have created a public nuisance (and the Corps is violating the federal Administrative Procedure Act) by allowing Asian carp to threaten the waters and fisheries of the Great Lakes. The states’ request for preliminary injunctive relief to close the Chicago waterway system to the passage of invasive Asian carp was denied by the District Court in December 2010 and the denial was affirmed by the Seventh Circuit in 2011. However, while the Seventh Circuit affirmed the denial of preliminary injunctive relief, the court’s opinion left the door open for the states to pursue their public nuisance claims against the U.S. Army Corps of Engineers, rejecting the federal government’s arguments of sovereign immunity and statutory displacement of the common law.

With the denial of preliminary injunctive relief affirmed on appeals, the case came back to the U.S. District Court for the Northern District of Illinois and the defendants moved to dismiss all claims. In December 2012, U.S. District Judge John J. Tharp, Jr. dismissed the states’ public nuisance claims and related claims against the Corps pursuant to the Administrative Procedure Act. In a 46-page opinion, the district court first acknowledged “the potentially devastating ecological, environmental, and economic consequences that may result from the establishment of an Asian carp population in the Great Lakes.” However, the district court held as a matter of law that because Congress has required the Corps to maintain navigation on the waterways connecting Lakes Michigan and the Mississippi River Basin, the failure of the Corps to take measures to close the waterways is not a public nuisance or otherwise unlawful. According to the district court, the Corps actions and omissions that may cause the Asian carp invasion are required by federal statute and thus cannot constitute a public nuisance for a court to remedy.

The district court’s opinion does give the states a legal lifeline to resurrect their claims. Addressing a question left open by the Seventh Circuit, the district court held that a public nuisance claim could be made against the federal government. The federal government had argued that it could never be subject to a public nuisance claim because the government always acts in the public interest. This theory goes back to old English law and the rights of the Crown, that a King or Queen could never be the source of a nuisance to the public. Judge Tharp rejected this argument, wisely questioning the underlying assumption of the “agency as guardian of the public welfare” in modern America. To shield the federal government from public nuisance suits would “resurrect a doctrine that, along with notions about divine rights and other detritus of monarchy, does not appear to have survived the Revolution.”

The district court also allowed the plaintiff states to amend their complaint to seek relief that would not be precluded by statute. Instead of pursuing that route, the plaintiff states have filed a notice of appeal to the U.S. Court of Appeals for the Seventh Circuit, setting the stage for an appellate decision on whether the federal government can be subject to a public nuisance claim for failing to protect the Great Lakes from invasive Asian carp.