News and Events Involving Environmental Law, Published by Chicago Environmental Attorney Dave Scriven-Young
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Federal Appeals Court Denies Additional Immediate Relief Requested by States in Asian Carp Case

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit recently issued an opinion in the federal Asian carp case, Michigan v. U.S. Army Corps of Engineers, Case No. 10-3891. The Court affirmed District Court Judge Robert Dow’s judgment that the plaintiffs (several states bordering the Great Lakes and others) were not entitled to a preliminary injunction—i.e., immediate relief prior to a full trial on the merits—that would have resulted in closure of navigational locks on Chicago-area waterways to prevent the infiltration of Asian carp into the Great Lakes. The states allege that the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago are managing the Chicago Area Waterway System in manner that will allow the carp to move into the Great Lakes.

The 7th Circuit panel took issue with one aspect of Judge Dow’s ruling in the trial court, specifically his opinion that the plaintiffs had shown in an evidentiary hearing only a minimal chance of succeeding on their claims. The 7th Circuit disagreed and ruled that the states presented enough evidence to establish a good or even substantial likelihood of success on the merits of their public nuisance claim:

“In our view, the proper inference to draw from the evidence is that invasive carp are knocking on the door to the Great Lakes. We need not wait to see fish being pulled from the mouth of the Chicago River every day before concluding that a threat of a nuisance exists. It is enough that the threat is substantial and that it may be increasing with each day that passes. Unlike many nuisances that can be eliminated after they are discovered, this one in all likelihood cannot be. The fact that it would be impossible to un-ring the bell in this case is another reason to be more open to a conclusion that the threat is real.”

However, the 7th Circuit affirmed Judge Dow’s ruling that the states were not entitled to a preliminary injunction for two reasons:

“In the end we conclude that a preliminary injunction would cause significantly more harm that it would prevent. We reach this result for two reasons . . . . First, there are a number of problems with various line items in the plaintiffs’ proposed package of relief. Taken together, these problems leave us doubting whether the proposed injunction would reduce by a significant amount the risk that invasive carp will gain a foothold in the Great Lakes between now and the time that a full trial on the merits is completed. It is clear, on the other side, that the requested measures would impose substantial costs on the defendants and the public interests they represent, as well as added expenses for commerce, recreation, and tourism. Second, as circumstances currently stand, there is a more fundamental reason that the states’ requested injunction is unlikely to prevent much harm and actually may impose costs. The courts would not be acting alone. As we have explained, there is a powerful array of expert federal and state actors that are engaged in a monumental effort to stop invasive carp from entering the Great Lakes. The last thing we need is an injunction operating at cross-purposes with their efforts or imposing needless transactional costs that divert scarce resources from science to bureaucracy. Furthermore, from an institutional perspective courts are comparatively ill situated to solve this type of problem. The balance of harms favors the defendants and the public interests they represent to such an extent that we conclude that the district court’s decision to deny preliminary relief was not an abuse of discretion.”

The 7th Circuit found that federal agencies and others “have mounted a tremendous effort to halt migration of invasive carp.” In the Court’s view, there is no immediate reason to halt those efforts or redirect resources away from those efforts to fund the states’ potential solutions.

So, where does this litigation go from here? The states may try to appeal to the U.S. Supreme Court, which twice already denied the states’ requested relief. Assuming another appeal is unsuccessful, the parties will probably end up again before Judge Dow, where he will hold a full trial on the merits and make a ruling on the state’s claims.

Stay tuned to the Illinois Environmental Law Blog for more news and developments. 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

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