Michigan v. U.S. Army Corps of Eng'rs
| Decision Date | 03 December 2012 |
| Docket Number | No. 10 C 4457.,10 C 4457. |
| Citation | 911 F.Supp.2d 739 |
| Parties | State of MICHIGAN, State of Wisconsin, State of Minnesota, State of Ohio, and Commonwealth of Pennsylvania, Plaintiffs, Grand Traverse Band of Ottawa and Chippewa Indians, Intervenor–Plaintiff, v. UNITED STATES ARMY CORPS OF ENGINEERS and Metropolitan Water Reclamation District of Greater Chicago, Defendants, City of Chicago, Coalition to Save Our Waterways, and Wendella Sightseeing Company, Inc., Intervenor–Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
OPINION TEXT STARTS HERE
Cynthia Rae Hirsch, Thomas J. Dawson, Wisconsin Department of Justice, Madison, WI, Louis B. Reinwasser, Robert P. Reichel, Michigan Department of Attorney General, Lansing, MI, David Peter Iverson, Peter James Shaw, Steven M. Gunn, Minnesota Attorney General's Office, St. Paul, MN, Dale T. Vitale, Lee Ann Rabe, Office of the Attorney General, Columbus, OH, John Bartley DeLone, Pennsylvania Office of Attorney General, Harrisburg, PA, for Plaintiffs.
William Rastetter, Olson, Bzdok & Howard, P.C., Traverse City, MI, for Intervenor–Plaintiff.
Maureen Elizabeth Rudolph, Matthew Michael Marinelli, Department of Justice, Washington, DC, Ann Danson Navaro, U.S. Army Corps of Engineers, Cincinatti, OH, Kurt N. Lindland, United States Attorney's Office, Ronald Michael Hill, Alan J. Cook, Brendan George O'Connor, Ellen Marie Avery, Frederick M. Feldman, Lisa Luhrs Draper, Margaret Theresa Conway, Metropolitan Water Reclamation District of Greater Chicago, Chicago, IL, for Defendants.
Mortimer Parker Ames, Diane M. Pezanoski, City of Chicago, Law Department Corporation Counsel, David L. Rieser, Much Shelist, P.C., Kathleen Mary Cunniff, McGuireWoods, Stuart Philip Krauskopf, Kurt Ausman Kauffman, Michael A. Schnitzer, The Law Offices of Stuart P. Krauskopf, Chicago, IL, for Intervenor–Defendants.
A group of states bordering the Great Lakes seeks an order requiring the U.S. Army Corps of Engineers (“Corps”) and Metropolitan Water Reclamation District of Greater Chicago (“District”) to take action—including immediately creating physical barriers in the waterways connecting Lake Michigan and the Mississippi River Basin—to prevent bighead and silver carp (collectively, “Asian carp”) from migrating into Lake Michigan. The plaintiffs argue that the defendants' failure to install physical barriers to physically separate the waterways will cause a public nuisance—namely, invasion of the Asian carp—resulting in grave and irreversible environmental and economic harm to the entire Great Lakes region.
Many organizations, including the Corps, are actively working to stop Asian carp from migrating into the Great Lakes watershed. The plaintiffs acknowledge that the defendants and others are taking steps to prevent Asian carp from reaching Lake Michigan, but they argue that the defendants are not doing enough. They attribute the looming disaster to the man-made hydrologic connection of the Chicago Area Waterway System (“CAWS”) and Lake Michigan and maintain that nothing short of severing that connection will adequately mitigate the threat of carp infiltration of the lake. The “central and ultimate relief sought” by their complaint is a permanent injunction requiring hydrologic separation of these bodies of water.
The defendants' motions to dismiss the lawsuit for failure to state a claim are currently before the Court. Plaintiffs have asserted claims under the federal common law of public nuisance and under the Administrative Procedure Act (“APA”). To state a claim for injunctive relief, the plaintiffs must set forth specific acts or omissions that the defendants have taken (or will take) that have resulted (or will result) in a public nuisance (here, infiltration of the Asian carp into Lake Michigan) or otherwise cause a legal wrong or violation of law. As will be seen, however, the primary action that plaintiffs demand to abate the nuisance alleged—hydrologic separation of the CAWS from Lake Michigan—lies outside of the limits of the Corps' congressionally-delegated authority to act. Specifically, Congress has enacted statutes requiring the Corps to sustain through navigation between Lake Michigan and the Des Plaines River in the Mississippi River Basin and prohibiting any party from constructing a dam in any navigable waterway (including the CAWS) without Congress's prior consent. These statutes preclude the Corps from taking the actions that plaintiffs believe necessary to prevent the Asian carp from reaching Lake Michigan.
The defendants' motion therefore presents the question of whether harms arising from actions or omissions that are required by a federal statute can constitute a public nuisance. Though mindful of, and alarmed by, the potentially devastating ecological, environmental, and economic consequences that may result from the establishment of an Asian carp population in the Great Lakes, the Court is nevertheless constrained to answer the question in the negative. In the absence of a constitutional violation (and none is here alleged), it is not the province of the courts to order parties to take action that would directly contravene statutory mandates and prohibitions, and the common law recognizes that actions required by law do not give rise to liability for nuisance. If the plaintiffs want to remove these congressional impediments to hydrologic separation and to replace them with effective barriers between the waterways, they must do so by means of the legislative process, not by alleging that the Corps' acts and/or omissions, required by federal statutes, violate federal nuisance common law and therefore justify an override of those statutes by the courts. Plaintiffs' complaint, therefore, is dismissed.1
The Court will, however, grant the plaintiffs leave to re-plead their claims. To the extent that the plaintiffs can, consistent with their obligations under Rule 11, plead causation based on acts or omissions of the defendants that are not explicitly required by law, they may be able to state a viable nuisance claim (or APA claim founded on nuisance as a legal wrong). As the Seventh Circuit held in affirming this Court's denial of plaintiffs' motion for preliminary injunction, Congress has not occupied the field of environmental management of invasive species generally, or of the Asian carp specifically, so completely as to have displaced the common law; there may be room in which the plaintiffs can still maneuver. But while it has not displaced the common law entirely, Congress plainly has precluded the “central and ultimate relief sought” by the plaintiffs in the present complaint and for that reason the complaint, as currently stated, must be dismissed.
The Court assumes familiarity with the underlying facts of the case, which are set forth in detail in the order denying the plaintiffs' motion for preliminary injunction, Michigan v. U.S. Army Corps of Eng'rs, No. 10 C 4457, 2010 WL 5018559 (N.D.Ill. Dec. 2, 2010) (Dow, J.) (Dkt. 155) (Asian Carp I ), and the Seventh Circuit's opinion affirming that decision. 667 F.3d 765 (7th Cir.2011) (Asian Carp II ). However, because the Court's previous opinion included facts outside of the pleadings (submitted for purposes of the plaintiffs' motion for preliminary injunction), which the Court cannot consider on these Rule 12(b)(6) motions to dismiss, the Court will briefly restate the necessary facts as alleged in the complaint.2
More than 100 years ago, facing sewage and industrial waste problems caused by the discharge of human and industrial waste from the rapidly growing city of Chicago into Lake Michigan, Illinois created the District in order to construct the Chicago Sanitary and Ship Canal (“Canal”) connecting the Chicago River and the Great Lakes Basin to the Illinois River and the Mississippi River Basin. The basic solution to the health hazards arising from discharge of Chicago's wastes into Lake Michigan was to reverse the flow of the Chicago River, pushing the waste away from the lake, through the sanitary canal, and ultimately into the Mississippi River. This project, which has been hailed as one of the greatest engineering feats of all time,3 doubtless has done much over the ensuing 100 years to protect the Great Lakes watershed from pollution and has been critical to the growth of Chicago as one of the nation's largest cities and commercial centers. See, e.g., Asian Carp II, 667 F.3d at 767–68.4
The Canal is used to manage wastewater discharges from within the District, for flood control, and also as an avenue of waterborne transportation. As a direct result of the Canal and associated infrastructure created, operated, and maintained by the District and the Corps, there are multiple connections through which fish can move from the waters of the Illinois and Des Plaines Rivers into Lake Michigan. Those connections include the Lockport Lock, sluice gates 5 in the Lockport Dam, the O'Brien Lock, sluice gates in the O'Brien Dam, the Chicago Lock, sluice gates in the Chicago River Controlling Works, and the sluice gate at the Wilmette Pumping Station.
The plaintiffs allege that invasive Asian carp have used or will use the Canal and other portions of the CAWS to migrate into Lake Michigan. Plaintiffs concede that the Asian carp have not yet developed a sustainable population in the lake, but assert that they soon will. Asian carp are not native to this country, but were imported into the United States for various reasons, including for experimental use in controlling algae in aquaculture and wastewater treatment ponds. As issue here are silver carp, which can grow to weights of sixty pounds and in the presence of motorboats may jump up to ten feet in the air, and bighead carp, which can grow to weights over one hundred pounds. Both species of Asian carp feed almost...
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