Michigan v. US Army Corps of Engineers
667 F.3d 765
| 7th Cir. | 2011Background
- Ambitious CAWS project connects Lake Michigan to the Mississippi watershed, enabling interstate water movement and commerce.
- Plaintiffs allege federal common-law public nuisance from CAWS operations enabling invasive Asian carp into the Great Lakes.
- District court denied preliminary injunction; states appeal seeking barriers, enhanced controls, and GLMRIS study acceleration.
- Court considers federal common law displacement by Congress and whether the U.S. government entity can be sued for public nuisance.
- Court analyzes whether APA §702 waives sovereign immunity for relief sought, and whether a preliminary injunction is appropriate given ongoing agency actions.
- Court notes ongoing multi-agency measures (electric barriers, GLMRIS, monitoring) may render injunction unnecessary or duplicative.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal common-law public nuisance may be asserted against the United States. | States argue public nuisance applies to federal actor. | Corps contends no federal-common-law nuisance against U.S. | Public nuisance extends to federal agencies; parties may proceed against Corps. |
| Whether §702 of the APA waives sovereign immunity for relief sought. | APA waiver allows declaratory/injunctive relief. | NA; focus on immunity limits. | APA §702 provides waiver for prospective relief; Corps is subject to claims. |
| Whether congressional regulation displaced federal common law on invasive carp. | Displacement not shown; federal nuisance remains. | Regulatory regime occupies field; displacement likely. | Displacement analysis pending; not dispositive at preliminary stage. |
| Whether a preliminary injunction was appropriate given likelihood of success, irreparable harm, balance of equities, and public interest. | Significant likelihood of nuisance; irreparable harm likely. | Active agency efforts reduce need for injunction; harms from injunction high. | Not an abuse of discretion to deny; injunction not warranted at this stage. |
| Whether the district court properly balanced harms in light of ongoing agency actions. | Injunctive relief would meaningfully reduce risk. | Injunction would hinder agencies and impose costs—several routes to address risk exist. | Balance of harms favors defendants; ongoing regulatory efforts suffice. |
Key Cases Cited
- Missouri v. Illinois, 200 U.S. 496 (1906) (early federal public nuisance precedent between states)
- Milwaukee I, 406 U.S. 91 (1972) (federal nuisance law; displacement not yet triggered by earlier statutes)
- Milwaukee II, 451 U.S. 304 (1981) (displacement where comprehensive regulatory program established)
- American Electric Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (federal common law displaced by federal statutory regime; uniform national policy needed)
- Winter v. NRDC, 555 U.S. 7 (2008) (standard for granting preliminary injunctions; likelihood of success/irreparable harm analysis)