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Michigan v. United States Army Corps of Eng'rs

United States Court of Appeals, Seventh Circuit

July 14, 2014

STATE OF MICHIGAN, et al., Plaintiffs-Appellants,
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 and GRAND TRAVERSE BAND OF OTTAWA AND CHIPPEWA INDIANS, Intervenor-Plaintiff-Appellant,

Argued: January 22, 2014.

Page 893

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 C 4457 -- John J. Tharp, Jr., Judge.

For State of Michigan, Plaintiff - Appellant: Robert P. Reichel, Attorney, Office of The Attorney General of The State of Michigan, Environment, Natural Resources and Agriculture Division, Lansing, MI.

For State of Wisconsin, Plaintiff - Appellant: Cynthia R. Hirsch, Attorney, Office of The Attorney General, Wisconsin Department of Justice, Madison, WI.

For State of Minnesota, Plaintiff - Appellant: David P. Iverson, Office of The Attorney General, St. Paul, MN.

For State of Ohio, Plaintiff - Appellant: Lee Ann Rabe, Office of The Ohio Attorney General, Columbus, OH.

For Commonwealth of Pennsylvania, Plaintiff - Appellant: J. Bart DeLone, Office of The Attorney General, Harrisburg, PA.

For Grand Traverse Band of Ottawa And Chippewa Indians, Plaintiff - Appellant: William C. Rastetter, Attorney, Olson, Bzdok & Howard, P.C., Traverse City, MI.

For United States Army Corps of Engineers, Defendant - Appellee: Michael T. Gray, Attorney, Department of Justice, Office of Counsel - U.S. Army Corps of Engineers, Jacksonville, FL.

For Metropolitan Water Reclamation District of Greater Chicago, Defendant - Appellee: Ronald M. Hill, Attorney, Metropolitan Water Reclamation District of Greater Chicago, Chicago, IL.

For City of Chicago, Intervenor - Appellee: Benna Ruth Solomon, Attorney, City of Chicago Law Department, Chicago, IL.

For Coalition to Save Our Waterways, Intervenor - Appellee: Kathleen Cunniff Ori, Attorney, Mcguirewoods Llp, Chicago, IL; David L. Rieser, Attorney, Much Shelist, P.C., Chicago, IL.

For Wendella Sightseeing Company, Incorporated, Intervenor - Appellee: Stuart P. Krauskopf, Attorney, Law Offices of Stuart P. Krauskopf, Chicago, IL.

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

OPINION

Page 894

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 nonnative 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://web2.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/r10/ECOCOMM.NSF/Invasive䪗鲉ˈCarp; 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

Page 895

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 (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 authorization

Page 896

would 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 ...


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