News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
of Peckar & Abramson, P.C. -- (312) 239-9722

Illinois Federal Court Dismisses Asian Carp Lawsuit

The Asian Carp lawsuit hit another bump in the road recently, when the U.S. District Court for the Northern District of Illinois dismissed the plaintiffs’ complaint and expressed skepticism on whether the case could continue.  In that case, Michigan v. U.S. Army Corps of Engineers, No. 10 C 4457 (N.D. Ill.), a group of states bordering the Great Lakes sought an order requiring the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to take action, including immediately creating physical barriers in the waterways connecting Lake Michigan and the Mississippi River Basin, to prevent Asian carp from migrating into Lake Michigan.  Plaintiffs argued that Defendants’ failure to install physical barriers to physically separate the waterways will cause a public nuisance–i.e., the invasion of Asian carp–resulting in grave and irreversible environmental and economic harm to the entire Great Lakes region.

The Court ruled that Defendants’ actions could not constitute a public nuisance because their actions were fully authorized by federal law.  In fact, the Court ruled that Plaintiff’s requested relief, physical separation, is actually unlawful.  For example, the Rivers and Harbors Act prohibit entities from placing barriers in canals and navigable rivers, such as the Chicago Area Waterway System (also known as “CAWS”), without Congressional approval.  Also, the Court cited certain appropriations acts that required Defendants to maintain and operate the CAWS in a manner that allows ships and other vessels to transit between Lake Michigan and the Des Plaines River.  Hydrological separation, the Court ruled, “would not permit ‘through navigation’ and would therefore contravene the text and purpose of the appropriations acts.”  The Court held that it did not have authority to order Defendants to take actions that would violate these statutes: “Congress, not the defendants, controls the question of whether the CAWS may be separated from Lake Michigan and this Court has no authority to require Congress to effect that separation, even where it may be necessary to prevent harms to third parties.”

The Court therefore dismissed Plaintiff’s complaint, although the Court held that Plaintiffs could amend its complaint.  To successfully do so, however, Plaintiffs “will have to allege that the defendants’ failure to take steps short of full hydrologic separation suffice to cause the nuisance, i.e., the severe threat that the carp will reach the lake.”  The Court stated that it was “skeptical” that the plaintiffs could do so, and it also stated that Plaintiffs “must come to grips with the fact that this Court cannot order the defendants to do what Congress has barred them from doing. . . . To state a valid claim, the plaintiffs must identify actions (or failures to act) that are within the scope of the defendants’ Congressionally-authorized discretion.”

Plaintiffs had a couple of options here, including trying to amend their complaint or standing on their complaint and appealing the District Court’s decision to the Seventh Circuit.  In a recent filing, Plaintiffs notified the Court that it would stand on their complaint and take an immediate appeal.

Stay tuned to the Illinois Environmental Law Blog for more news and developments. To subscribe to this blog and and sign up for my free newsletter, go to http://illinoisenvironmentallaw.com/subscribe/. To set up a free initial consultation to discuss your legal matter, please contact Chicago environmental attorney Dave Scriven-Young at (312) 239-9722 or dscriven-young@pecklaw.com.





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