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Wednesday, August 24, 2011

Ind. Decisions - Important invasive species/Asian carp opinion issued in typescript this afternoon by 7th Circuit

State of Michigan and Grand Traverse Band of Ottawa and Chippewa Indians v. Army Corp of Engineers (ND Ill.)

The short answer is in this brief AP story posted a few minutes ago:

A federal appeals panel has rejected a request by five Great Lakes states for an immediate order to close shipping locks on Chicago area waterways and take other steps to prevent Asian carp from invading Lake Michigan. The three-judge panel of the 7th US Circuit Court of Appeals ruled Wednesday against the request by Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin. The states were appealing a decision by a federal district judge in Chicago last December.
The 57-page opinion is written by Judge Wood. From the opinion (emphasis added by ILB):
Ambitious engineering projects that began at the time that the City of Chicago was founded have established a waterway in northeastern Illinois that connects Lake Michigan to the Mississippi watershed. (Additional links between the Mississippi and the Great Lakes exist elsewhere, from northern Minnesota to New York.) The system of canals, channels, locks, and dams, with which we are concerned, known today as the Chicago Area Waterway System (or CAWS, as the parties call it in their briefs), winds from the mouth of the Chicago River and four other points on Lake Michigan to tributaries of the Mississippi River in Illinois. The navigable link has been a boon to industry and commerce, and it supports transportation and recreation. Public health crises that once were common because the Chicago River emptied the City’s sewage into the lake – the City’s freshwater supply – vanished thanks to the Chicago Sanitary and Ship Canal, which reversed the flow of the Chicago River so that it now pulls water from the lake, into the CAWS, and down toward the Mississippi. During heavy rains and seasonal high waters in the region, the CAWS is used to control flooding.

This effort to connect the Great Lakes and Mississippi watersheds has not been without controversy. At the turn of the 20th century, Missouri sued in the Supreme Court to stop Illinois from opening the Sanitary and Ship Canal. An opinion by Justice Holmes rejected Missouri’s challenge; the Court concluded that the state had not presented enough evidence to establish that the flow of sewage toward the Mississippi would create a public nuisance. Missouri v. Illinois, 200 U.S. 496 (1906); see also Missouri v. Illinois, 180 U.S. 208 (1901). Several years later a broader fight erupted among the states bordering the Great Lakes, and the Court began to issue decrees setting the maximum rate at which Illinois may divert water away from Lake Michigan and into the CAWS. E.g., Wisconsin v. Illinois, 449 U.S. 48 (1980); Wisconsin v. Illinois, 388 U.S. 426 (1967); Wisconsin v. Illinois, 311 U.S. 107 (1940); Wisconsin v. Illinois, 278 U.S. 367 (1929). Nor has opening a pathway between these bodies of fresh water come without costs. This appeal requires us to consider one of those costs: the environmental and economic harm posed by two invasive species of carp, commonly known as Asian carp, which have migrated up the Mississippi River and now are poised at the brink of this man-made path to the Great Lakes. The carp are voracious eaters that consume small organisms on which the entire food chain relies; they crowd out native species as they enter new environments; they reproduce at a high rate; they travel quickly and adapt readily; and they have a dangerous habit of jumping out of the water and harming people and property.

In an attempt to stop the fish, Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin, all states bordering the Great Lakes, filed this lawsuit against the U.S. Army Corps of Engineers (the Corps) and the Metropolitan Water Reclamation District of Greater Chicago (the District), which together own and operate the facilities that make up the CAWS. The plaintiff states allege that the Corps and the District are managing the CAWS in a manner that will allow invasive carp to move for the first time into the Great Lakes. The states fear that if the fish establish a sustainable population there, ecological disaster and the collapse of billion-dollar industries that depend on the existing ecosystem will follow. They say that the defendants’ failure to close down parts of the CAWS to avert the crisis creates a grave risk of harm, in violation of the federal common law of public nuisance, see American Electric Power Co., Inc. v. Connecticut, 131 S. Ct. 2527 (2011), and they advance a related claim against the Corps based on the Administrative Procedure Act (APA), 5 U.S.C. § 702. The states asked the district court for declaratory and injunctive relief and moved for a preliminary injunction that would require the defendants to put in place additional physical barriers throughout the CAWS, implement new procedures to stop invasive carp, and expedite a study of how best to separate the Mississippi and Great Lakes watersheds permanently. Other parties intervened to protect their interests – the Grand Traverse Band of Ottawa and Chippewa Indians on the side of the plaintiffs, and the City of Chicago, Wendella Sightseeing Company, and the Coalition to Save Our Waterways as defendants. The district court denied the motion for a preliminary injunction, and the states appealed immediately. See 28 U.S.C. § 1292(a)(1).

We conclude that the court’s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited. * * *

We take very seriously the threat posed by the invasive species of carp that have come to dominate parts of the Mississippi River basin and now stand at the border of one of the most precious freshwater ecosystems in the world. Any threat to the irreplaceable natural resources on which we all depend demands the most diligent attention of government. As the case proceeds, the district judge should bear in mind that the risk of harm here depends upon both the probability of the harm and the magnitude of the problem that would result. In the end, however, the question whether the federal courts can offer meaningful equitable relief – either preliminary or permanent – to help abate a public nuisance in the face of agency action is factual in nature . It depends on the actual measures that the agencies have implemented already and those that they have committed to put in place going forward. Our ruling today is tied to our understanding of the current state of play. We recognize that the facts on the ground (or in the water) could change. The agencies currently working hard to solve the carp problem might find themselves unable to continue, for budgetary reasons, because of policy changes in Washington, D.C., or for some other reason. If that happens, it is possible that the balance of equities would shift. Similarly, new evidence might come to light which would require more drastic action, up to and including closing locks on Lake Michigan for a period of time. If either situation comes to pass, then the district court would have the authority to revisit the question whether an exercise of its equitable powers is warranted, taking into account the principles we have discussed in this opinion. As things stand now, however, preliminary relief is not appropriate. The district court’s judgment is AFFIRMED.

Posted by Marcia Oddi on August 24, 2011 06:24 PM
Posted to Ind. (7th Cir.) Decisions