State v. U.S. Army Corps of Eng'rs

• Decision Date: 14 July 2014
• Docket Number: No. 12–3800.,12–3800.
• Citation: 758 F.3d 892
• Parties: State of MICHIGAN, et al., Plaintiffs–Appellants, and Grand Traverse Band of Ottawa and Chippewa Indians, Intervenor–Plaintiff–Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS and Metropolitan Water Reclamation District of Greater Chicago, Defendants–Appellees, and City of Chicago, et al., Intervenors–Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

758 F.3d 892

State of MICHIGAN, et al., Plaintiffs–Appellants,

and

Grand Traverse Band of Ottawa and Chippewa Indians, Intervenor–Plaintiff–Appellant,

v.UNITED STATES ARMY CORPS OF ENGINEERS and Metropolitan Water Reclamation District of Greater Chicago, Defendants–Appellees,andCity of Chicago, et al., Intervenors–Defendants–Appellees.

No. 12–3800.

United States Court of Appeals,Seventh Circuit.

Argued Jan. 22, 2014.

Decided July 14, 2014.

Robert P. Reichel, Office of the Attorney General of the State of Michigan, Lansing, MI, Cynthia R. Hirsch, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, David P. Iverson, Office of the Attorney General, St. Paul, MN, Lee Ann Rabe, Office of the Ohio Attorney General, Columbus, OH, J. Bart Delone, Office of the Attorney General, Harrisburg, PA, William C. Rastetter, Attorney, Olson, Bzdok & Howard, P.C., Traverse City, MI, for Plaintiffs–Appellants/Intervenor–Plaintiff–Appellant.

Michael T. Gray, Department of Justice Office of Counsel–US Army Corps of Engineers, Jacksonville, FL, Ronald M. Hill, Metropolitan Water Reclamation District

of Greater Chicago, Chicago, IL, for Defendants–Appellees.

Benna Ruth Solomon, City of Chicago Law Department, Kathleen Cunniff Ori, McGuireWoods LLP, David L. Rieser, Much Shelist, P.C., Stuart P. Krauskopf, Law Offices of Stuart P. Krauskopf, Chicago, IL, for Intervenors–Defendants–Appellees.

Before WOOD, Chief Judge, and MANION and WILLIAMS, Circuit Judges.

WOOD, Chief Judge.

Meddling with Mother Nature is not always a good idea, as the ongoing saga of the Asian carp illustrates. The unfortunate confluence of two interventions—the linkage of the Mississippi River system to the Great Lakes and the effort to control weeds in southern aquatic farms by importing Asian carp, a voracious non-native fish—has led to a situation in which two particular species of carp have overwhelmed the Mississippi River and its tributaries and threaten to migrate into the Great Lakes. Once the carp reach one of the Lakes, they have reached all of them, thanks in part to the last Ice Age and in part to the Erie Canal and later measures to facilitate shipping between Lakes Huron and Erie and Lakes Erie and Ontario around Niagara Falls. See, e.g., http:// web 2. geo. msu. edu/ geogmich/ phy- feature. html (all websites cited in this opinion were last visited on July 14, 2014). For an interesting account of the construction of the Erie Canal and the Chicago Sanitary Canal, see Simon Winchester, The Men Who United the States at 196–222 (2013). Adding locks and canals to the natural links between the Lakes opened the way for commercial navigation all the way to the Atlantic Ocean. It is enough for our purposes, however, to focus on the connections between the Mississippi system and the Lakes.

In this action, five states bordering the Great Lakes and an Indian tribe assert that the Asian carp either will soon invade, or perhaps already have invaded, the Great Lakes and that they are poised to inflict billions of dollars of damage on the ecosystem. Believing that the responsible units of government have failed in their task of protecting the Great Lakes, the plaintiffs ask us to step in and impose measures to ensure that the carp are forever blocked from the Lakes.

This problem did not develop overnight. Beginning in the early 20th century, state and federal authorities constructed a series of canals and channels that connect Lake Michigan with the Mississippi River. One part of that system is now called the Chicago Area Waterway System (CAWS). It has been vital to the growth and development of the Chicago region and the surrounding Midwest. In addition to reversing the flow of the Chicago River in order to carry Chicago's wastewater away from, rather than into, Lake Michigan, the CAWS also established a navigable link between two of the country's most important bodies of water. The CAWS is not the only place where the Mississippi basin and the Great Lakes intersect, but it is the one at issue in our case.

The other part of the problem dates from the 1970s, when aquatic farmers in the southern United States introduced bighead and silver Asian carp to their facilities in the hope that the fish would control unwanted plant growth. See U.S. Environmental Protection Agency, Asian Carp Species, http:// yosemite. epa. gov/ r 10/ ECOCOMM. NSF/ Invasive+ Species/ Asian– Carp; National Park Service, Asian Carp Overview, http:// www. nps. gov/ miss/ naturescience/ ascarpover. htm. Flooding in the region, however, enabled the carp to move beyond the farms out into open freshwater systems, and ultimately to work their way up the Mississippi River to within six miles of Lake Michigan. See Fisheries and Oceans Canada, Brief History of Asian Carp in North America and Related Initiatives in Canada, http:// www. dfo- mpo. gc. ca/ media/ back- fiche/ 2012/ hq–ac15–eng.htm.

This is far from the first case in which neighboring states have complained about one aspect or another of the CAWS. Immediately after it was constructed, the State of Missouri sued Illinois to stop operations of the Chicago Sanitary and Ship Canal (a major component of the CAWS) because it would cause sewage to flow down the Mississippi River and into Missouri. See Missouri v. Illinois, 200 U.S. 496, 26 S.Ct. 268, 50 L.Ed. 572 (1906). That suit was unsuccessful, but in later years interstate disputes arose over the maximum rate at which Illinois could divert water from Lake Michigan into the CAWS. See, e.g.,Wisconsin v. Illinois, 449 U.S. 48, 101 S.Ct. 557, 66 L.Ed.2d 253 (1980); Wisconsin v. Illinois, 388 U.S. 426, 87 S.Ct. 1774, 18 L.Ed.2d 1290 (1967); Wisconsin v. Illinois, 311 U.S. 107, 61 S.Ct. 154, 85 L.Ed. 73 (1940); Wisconsin v. Illinois, 278 U.S. 367, 49 S.Ct. 163, 73 L.Ed. 426 (1929). The case before us presents yet another problem.

In response to the advance of the Asian carp up to the doorstep of the Great Lakes, the States of Michigan, Wisconsin, Minnesota, and Ohio, and the Commonwealth of Pennsylvania, initiated this lawsuit against the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago in an effort to compel action that would prevent the fish from crossing into Lake Michigan. The Grand Traverse Band of Ottawa and Chippewa Indians intervened as a plaintiff. (For convenience, we refer to all plaintiffs as the States, since the Tribe has associated itself with all of the States' arguments.) The States sought a preliminary injunction that would require the Corps and the District to take a number of aggressive interim measures to maximize the chances of preventing the spread of the carp. See Michigan v. U.S. Army Corps of Eng'rs (Asian Carp I ), 667 F.3d 765 (7th Cir.2011). The district court denied that motion, and we affirmed, holding that the States had failed to prove that irreparable injury would occur before the litigation could be resolved, given the measures being undertaken by the responsible agencies.

At that point proceedings resumed in the district court. After further consideration, it dismissed the action under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The States have now appealed from that final judgment. It is worth emphasizing that we give the plaintiffs the benefit of the doubt in this situation: “We construe the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in [their] favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir.2008). Any facts that we mention should be understood in this light.

Since we last saw this case, the threat that the Asian carp pose to Lake Michigan has not diminished. As we did before, we proceed on the assumption that the risk of invasion is a serious one, and that the negative consequences that would result from the establishment of a breeding population in the Great Lakes would be great. Nonetheless, while our analysis differs in significant respects from that of the district court, we ultimately agree with its disposition.

We do not, in particular, adopt the district court's conclusion that the Corps and the District are “authorized” to operate a navigable waterway no matter what the environmental cost, nor that any such authorizationwould relieve them of the duty to try to stop the spread of the Asian carp. Instead, we find once again that the States have not alleged facts showing that the Corps and the District are operating the CAWS in a manner that is likely to allow the Asian carp to reach Lake Michigan. As we did before, we leave open the possibility of relief should there come a time when reliable facts show that the carp pose a more immediate threat to the Lakes, or when the Corps and the District slacken their efforts to prevent the passage of the Asian carp out into Lake Michigan.

I

The bighead and silver carp have not blended well with the native species they have encountered. To the contrary, the carp are rapacious eaters of plankton, algae, and other small organisms. Over the years, they have crowded out the native fish by destroying their food supply from the bottom up, stripping the rivers of the key source of food for other fish. (The carp are thus not apex predators that depend on smaller fish for food.) A fish kill conducted near St. Louis in 1999 showed that the Asian carp constituted over 95% of the biomass in the Mississippi at that place and time. See Great Lakes Fishery Commission, testimony of Dr. Michael J. Hansen, “The Asian Carp Threat to the Great Lakes,” available at http:// www. glfc. org/ fishmgmt/ Hansen_ testimony_ aisancarp. pdf.

The carp are big fish: silver carp can reach up to 60 pounds and bighead carp up to 100 pounds, although the average Asian carp weighs 30–40 pounds. Id. They can eat between 20% and 120% of their own body weight daily. And besides wreaking havoc on the Mississippi's ecosystem, the...