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State of Michigan v. United States Army Corps of Engineers

United States District Court, N.D. Illinois, Eastern Division

December 3, 2012

State of MICHIGAN, State of Wisconsin, State of Minnesota, State of Ohio, and Commonwealth of Pennsylvania, Plaintiffs,
v.
UNITED STATES ARMY CORPS OF ENGINEERS and Metropolitan Water Reclamation District of Greater Chicago, Defendants, Grand Traverse Band of Ottawa and Chippewa Indians, Intervenor-Plaintiff, City of Chicago, Coalition to Save Our Waterways, and Wendella Sightseeing Company, Inc., Intervenor-Defendants.

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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.

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Mortimer Parker Ames, Diane M. Pezanoski, City of Chicago, Law Department Corporation Counsel, David L. Rieser, Much Shelist, P.C., Kathleen Mary Cunniff, McGuire Woods, Stuart Philip Krauskopf, Kurt Ausman Kauffman, Michael A. Schnitzer, The Law Offices of Stuart P. Krauskopf, Chicago, IL, for Intervenor-Defendants.

MEMORANDUM OPINION AND ORDER

JOHN J. THARP, JR., District Judge.

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),

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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.

FACTS

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]

1. Development of the Chicago Area Waterway System

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

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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.

2. Introduction of Asian Carp

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 continuously, can readily adapt to varying environmental conditions, reproduce prolifically, and spread rapidly. The Asian carp escaped from ponds in the lower Mississippi River Basin, and have migrated through and become established in the rivers in the Mississippi River Basin, including the Illinois River. Because of their voracious appetites, the Asian carp substantially disrupt and displace native fish populations, impairing recreational and commercial fishing. And because of their jumping behavior, silver carp can injure boaters and cause property damage, impairing recreational boating.

3. Attempts to Block the Asian Carp From Reaching Lake Michigan

The Corps has taken a number of steps to prevent the Asian carp from reaching Lake Michigan. Primarily, the Corps has relied on an electrical " Dispersal Barrier System," comprised of underwater steel cables charged with electricity, that is intended to deter the passage of invasive species. The first portion of that system, Barrier I, is located slightly north of the Lockport Dam, approximately 25 miles

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from Lake Michigan, and has been in operation since 2002. In early 2009, the Corps activated a second electrical barrier, Barrier IIA, approximately 1,300 feet downstream ( i.e., farther away from Lake Michigan) from Barrier I. The plaintiffs allege that Barrier IIA is operating at an electrical setting below its full design capacity, and must be turned off periodically for maintenance. (A third barrier, Barrier IIB which is located between Barriers I and IIA, is now operational although it had not yet been completed at the time the complaint was filed).

In addition to operating the Dispersal Barrier System, the Corps has also selectively applied rotenone (a fish kill agent) and temporarily closed the locks at times when the Dispersal Barrier System has been shut down for maintenance. The Corps has also performed environmental DNA (" eDNA" ) testing to determine whether Asian carp have advanced beyond the Dispersal Barrier System, and has applied additional rotenone in some areas where eDNA has indicated that the carp may be present. And the Corps has used fish nets in various locations to search (unsuccessfully) for Asian carp. All of the Corps' efforts are designed to keep Asian carp from moving above the Dispersal Barrier System anywhere in the entire CAWS, including the Canal and the Illinois and Des Plaines Rivers.

Despite the Corps' efforts, by 2009 Asian carp " were observed in the Canal." Cmplt. ¶ 32. These sightings prompted the Corps to begin a program of environmental surveillance for Asian carp using the eDNA method of analyzing water samples for the presence of genetic material emitted or secreted by Asian carp. eDNA testing has (accepting the plaintiffs view) indicated that Asian carp are present in the Canal north of the Lockport Lock and the Dispersal Barrier System, which means (according to the complaint) that at least some carp have infiltrated the CAWS and only the system of locks, dams, and pumping stations stands between them and Lake Michigan. In December, 2009, a bighead carp was recovered from the Canal in this same vicinity. In June, 2010, a bighead carp was recovered six miles from Lake Michigan in Lake Calumet, which is part of the CAWS and is connected to Lake Michigan via the Calumet River.

The plaintiffs have urged the defendants to take additional action to prevent Asian carp migration, including requesting that the Corps change its lock and water control operations and implement plans to physically separate the carp-invested waterways from Lake Michigan. In response, the Corps released a number of statements regarding its plans to prevent Asian carp from reaching Lake Michigan. The most significant of these statements is a report issued in June 2010 entitled Interim III, Modified Structures and Operations, Illinois & Chicago Area Waterways Risk Reduction Study and Integrated Environmental Assessment (" Interim III" ). In the Interim III report, the Corps proposed to install screens in some sluice gates at the O'Brien Lock, but it rejected closing the locks except intermittently on a case by case basis because the Corps states that there is no " evidence that there is an imminent threat that a sustainable population of Asian carp may establish itself if the locks are not closed." Cmplt. ¶ 73. The Corps further concluded that " there is no individual or combination of lock operation scenarios [sic] will lower risk of Asian carp establishing self-sustaining populations in Lake Michigan to an acceptable level." Id. The plaintiffs find fault with the Interim III report, alleging that some experts who were consulted in conjunction with the report concluded that closing the locks would reduce the chances of Asian carp infiltrating Lake Michigan, but that for the purposes of the Interim

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III report they were not allowed to consider or recommend closing the locks on a long-term or permanent basis.

4. Procedural History

The plaintiffs filed this claim for injunctive and declaratory relief on July 19, 2010, shortly after the Corps issued the Interim III report, and moved for a preliminary injunction the same day.[6] The case was originally assigned to Judge Dow, who denied the motion for a preliminary injunction on December 2, 2010, after extensive witness testimony, argument, and briefing regarding the motion. In holding that the plaintiffs had demonstrated, at best, " very modest" and " minimal" likelihood of success on their nuisance and APA claims, respectively, Asian Carp I, 2010 WL 5018559 at *16, *21, Judge Dow addressed several of the arguments at issue on the motion to dismiss. But he addressed those arguments in the context of ruling on a preliminary injunction motion, where the Court was called on only to assess the " likelihood" that the plaintiffs' claims would succeed. Judge Dow did not need to resolve those arguments definitively. Most significantly, with respect to the present ruling, Judge Dow discussed at some length that, in view of statutory requirements authorizing the Corps to operate the CAWS and to sustain through navigation between the CAWS and Lake Michigan, it would be " difficult to conclude that the Corps has created a public nuisance by acting in accordance with its statutory mandates." Id. at *24. Because ruling on the preliminary injunction motion did not require it, however, Judge Dow did not definitively hold that the plaintiffs could not succeed on their nuisance claim on that basis.

The plaintiffs appealed Judge Dow's ruling to the Seventh Circuit, which affirmed the denial of a preliminary injunction on August 24, 2011. In affirming Judge Dow's ruling, the Court of Appeals definitively addressed, and rejected, several legal issues advanced by the defendants in support of Judge Dow's ruling, specifically holding that sovereign immunity did not bar the plaintiffs' claims and that Congress had not displaced the federal common law of public nuisance by its limited legislative actions concerning the subjects of invasive species generally, or the spread of Asian carp specifically. Asian Carp II, 667 F.3d at 774-78. The Seventh Circuit did not, however, resolve two arguments raised in the district court, namely whether a common law claim for public nuisance can ever be maintained against a federal agency and the question, discussed at length by Judge Dow, of whether the plaintiffs can maintain a cause of action for public nuisance where statutes preclude the action alleged to be necessary to prevent the nuisance.

Following the Seventh Circuit's affirmance of denial of the preliminary injunction motion, the defendants moved to dismiss the complaint on January 30, 2012. Shortly after briefing on the motion to dismiss was completed the case was transferred to this Court's docket on June 1, 2012, as part of the Court's standard process of reassigning cases to comprise the initial docket of newly appointed judges. The Corps submitted a " Supplemental Motion to Dismiss" in late September (Dkt.

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237), to which the plaintiffs responded on October 9, 2012. Dkt. 240.

5. Relief Requested

The plaintiffs argue that the risk of Asian carp migrating into Lake Michigan exists because the District, beginning with completion of the Canal over 100 years ago, connected the Great Lakes basin to the Mississippi River basin. Cmplt. ¶ 15 (the " manmade connection of the Great Lakes Basin with the Mississippi River basin ... sowed the seeds of the present dispute by allowing ... invasive species ... to migrate" ). The complaint alleges that, in maintaining and operating the CAWS in a manner that preserves the hydrologic connection between the CAWS and Lake Michigan, the defendants have allowed or will allow the migration of Asian carp into the lake. See, e.g., Cmplt. ¶ 1 (defendants " have created and maintained ... facilities within the CAWS that link Illinois waters ... to Lake Michigan .... To the extent those facilities are maintained and operated in a manner that allows the migration of Asian carp into the Great Lakes and connected waters, they constitute a public nuisance" ); ¶ 89 (" the present risk that Asian carp ... will migrate into Lake Michigan exists precisely because the District created and implemented the diversion project and because the District and the Corps are maintaining and operating the infrastructure of that project in a manner that allows those fish to migrate" ).

Since the plaintiffs allege that the defendants' creation, maintenance, and operation of the CAWS has caused the threat that the Asian carp will establish themselves in the Great Lakes, it is not surprising that " the central and ultimate relief sought by Plaintiffs is a declaratory judgment that a common law public nuisance exists and a permanent injunction requiring the Defendants to ‘ expeditiously develop and implement plans to permanently and physically separate carp-infested waters in the Illinois River basin and the CAWS from Lake Michigan.’ " Supp. Resp. (Dkt. 240) at 6. Until this permanent separation of these waterways can be implemented, the plaintiffs seek a permanent injunction requiring the defendants " to immediately take all available measures within their respective control, consistent with the protection of public health and safety, to prevent the migration of bighead and silver carp through the CAWS into Lake Michigan." Cmplt. at 31. These intermediate steps include:

(a) Using the best available methods to block the passage of, capture or kill bighead and silver carp that may be present in the CAWS, especially in those ...

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