State of Michigan v. United States Army Corps of En
758 F.3d 892
| 7th Cir. | 2014Background
- Asian carp (bighead and silver) were introduced in the U.S. in the 1970s and have moved up the Mississippi River system, threatening the Great Lakes ecosystem.
- The Chicago Area Waterway System (CAWS) links the Mississippi basin to Lake Michigan; plaintiffs allege CAWS operations enable carp migration.
- Plaintiffs (Michigan, Wisconsin, Minnesota, Ohio, Pennsylvania, and a Tribe) sued the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District seeking injunctive relief to prevent carp from reaching Lake Michigan, including hydrological separation.
- The Corps has deployed electric barriers, monitoring (including eDNA), chemical treatments, and completed the GLMRIS Report presenting multiple alternatives (some involving hydrological separation) with large cost and environmental tradeoffs.
- The district court dismissed the complaint under Rule 12(b)(6); plaintiffs appealed. The court of appeals assumed the carp threat serious but affirmed dismissal, finding plaintiffs failed to plausibly allege the agencies’ operations currently create an imminent or inevitable public nuisance or violate the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal common-law public-nuisance claim can be brought against federal agencies | States: Federal common law permits states to sue federal agencies for public nuisance caused by agency operation of CAWS | Corps/District: Federal government cannot be liable for public nuisance or is immune; actions are authorized by statute | Court: Federal agencies can be defendants under federal common-law nuisance; sovereign immunity does not bar suit under APA waiver, but liability still requires plausible factual showing |
| Whether the Corps’ statutory authority/obligations to operate CAWS for navigation preclude nuisance liability | States: Statutes do not “fully authorize” creating an invasive-species nuisance; authority to operate waterway is not carte blanche to allow harm | Corps/District: Congressional statutes and appropriations require operation/maintenance in interest of navigation, shielding them from nuisance claims | Held: Authorization to operate in interest of navigation does not automatically bar nuisance claims; statutes cited do not address invasive-species problem or fully authorize the alleged nuisance |
| Whether plaintiffs pleaded sufficient facts showing current or imminent public nuisance from CAWS operations | States: Alleged carp sightings lakeward of barriers, eDNA detections, and inadequate measures show imminent invasion | Corps/District: Agencies have active barriers, monitoring, and response; no evidence of ongoing or imminent passage | Held: Complaint fails to plausibly allege that current operations will allow carp passage or that a present/imminent nuisance exists; dismissal proper under Rule 12(b)(6) |
| Whether Court can order the Corps to implement hydrological separation or otherwise direct specific remedial plan | States: Seek injunction compelling Corps to develop and implement separation plans and expedite GLMRIS recommendations | Corps/District: §401 and other statutes prohibit court from ordering construction without Congress; injunction would improperly direct executive discretion and lobby Congress | Held: Court cannot practicably or appropriately order Corps to select and pursue a specific separation plan or build a barrier; plaintiffs may pursue APA causes (e.g., failure to act or unreasonable delay) but those claims were not pleaded successfully here |
Key Cases Cited
- Missouri v. Illinois, 200 U.S. 496 (1906) (interstate suit about Chicago Sanitary and Ship Canal)
- American Elec. Power Co. v. Connecticut, 131 S. Ct. 2527 (2011) (scope and displacement of federal common law for environmental harms)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (no general federal common law)
- Illinois v. City of Milwaukee, 406 U.S. 91 (1972) (federal common law in air and water interstate cases)
- Hedges v. Dixon County, 150 U.S. 182 (1893) (equity cannot disregard statutory requirements)
- Lake Shore & M.S. Ry. Co. v. Ohio, 165 U.S. 365 (1897) (purpose of Rivers and Harbors Act to prevent interference with commerce)