Federal Court Dismisses without Prejudice Asian Carp Suit against US Army Corps

Here is the order:

12-3-12 Order

An excerpt:

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), 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.

Independent Study Concludes Permanent Barrier Needed to Combat Asian Carp Spread

Here, from IPR. An excerpt:

Now there’s a new study that outlines three different options to build physical barriers primarily to block Asian Carp.

Those would be big public works projects with hefty costs of between three and ten billion dollars over the next fifty years.

But the study also shows that preventing even one invasive species from entering the Lakes could save hundreds of millions of dollars a year. That’s what is spent now to treat for sea lamprey or to deal with the effects of zebra and quagga mussels.

If Asian carp get loose in the lakes that could drastically change both sport and commercial fishing. And the lakes would take another economic hit says David Ullrich, director of the Great Lakes and St. Lawrence Cities Initiative, a group of mayors around the lakes. “So the prevention element is critical. And avoiding costs in the future is a great benefit,” Ullrich says.

SCOTUSBlog Petition of the Day: Michigan v. U.S. Army Corps


The petition of the day is:

Michigan v. U.S. Army Corps of Engineers

Docket: 11-541
Issue(s): (1) Whether a request for multiple types of preliminary injunctive relief requires a balancing of harms with respect to each form of relief requested; and (2) whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.

Certiorari stage documents:

Michigan v. United States Army Corps of Engineers Cert Petition (Asian Carp)


Asian Carp Cert Pet_10 26 2011

Questions presented:

This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a “good” or “perhaps even a substantial” likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court’s denial of even the plaintiffs’ most modest requests for injunctive relief. The Seventh Circuit’s opinion raises two questions for this Court’s review:

1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.

2. Whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.

Seventh Circuit decision here.

Seventh Circuit Affirms Denial of Injunction in Asian Carp Suit (Michigan v. Army Corps)

Here is the opinion.

An excerpt:

We conclude that the court’s decision to deny preliminary relief was not an abuse of discretion. Our analysis, however, differs in significant respects from that of the district court, which was persuaded that the plaintiffs had shown only a minimal chance of succeeding on their claims. We are less sanguine about the prospects of keeping the carp at bay. In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps even a substantial likelihood of harm – that is, a non-trivial chance that the carp will invade Lake Michigan in numbers great enough to constitute a public nuisance. If the invasion comes to pass, there is little doubt that the harm to the plaintiff states would be irreparable. That does not mean, however, that they are automatically entitled to injunctive relief. The defendants, in collaboration with a great number of agencies and experts from the state and federal governments, have mounted a full-scale effort to stop the carp from reaching the Great Lakes, and this group has promised that additional steps will be taken in the near future. This effort diminishes any role that equitable relief would otherwise play. Although this case does not involve the same kind of formal legal regime that caused the Supreme Court to find displacement of the courts’ commonlaw powers in American Electric Power, on the present state of the record we have something close to it. In light of the active regulatory efforts that are ongoing, we conclude that an interim injunction would only get in the way. We stress, however, that if the agencies slip into somnolence or if the record reveals new information at the permanent injunction stage, this conclusion can be revisited.

Chicago Public Radio: “Who Owns the Fish? How Tribal Rights Could Save the Great Lakes”

Here. The transcript:

In Leelanau County in Northern Michigan, a small Native American tribe has struggled for generations to survive economic and social hardships. The tribe has always been deeply connected to the lakes economically and culturally. The latest threat to that connection is environmental degradation, particularly invasive species. But the tribes are forming unexpected alliances with old enemies to fight the threat.

When you first arrive in the Leelanau Peninsula, you think: This is heaven in the Midwest. Lake Michigan stretches out everywhere you look, blue as the Caribbean. It is a place full of second homes and tourists. But there is one spot that is different from the rest.

Arthur Duhamel Marina sound fade up

Peshawbestown is the reservation for the Grand Traverse Band of Ottawa and Chippewa Indians, a group that has lived in this area longer than anyone. It doesn’t have any t-shirt shops or beach-front mansions. Instead, there are government offices, a casino, and a tribal marina. Ed John is a tribal fisherman who docks his fishing boat here.

JOHN: I can weld, and other things. But I enjoy fishing ’cause I am my own boss. I am not rich, but I don’t want to be rich, it’s working for me.

Tribes have always been dependent on the lakes. We asked Ed how invasive species have been threatening the tribes’ livelihood.

JOHN: I was just telling my buddy, we got these reporters down here, asking about invasive species. We know a thing or two about invasive species. First we had the Vikings and all these other countries taking, actually invading our space.

Ed’s wife fishes, and so does her cousin, Bill.

FOWLER: My name is Bill Fowler, I am a tribal commercial fisherman.

His nickname is Bear.

FOWLER: Because I’m as big as a bear and I work like a bear.

Fade up engine

Bill fishes with Jason Sams who helps haul in the nets. Also along for the ride is  Bill’s dauschund puppy, Beauford.

SAMS: He eats the face of the fishes. Faces ain’t worth any money anyway. He’s excited ‘cause he knows there will be fish soon.

It takes about an hour to reach the first fishing net.

FOWLER: Here fishy, fishy. Come here fishies.

Lake trout flop around on the dock, bleeding from the gills.

Fish flopping

Ice keeps them fresh till they get to shore, where Bill sells his catch under the name 1836 Fishing Company, in honor of the Treaty of 1836.

FOWLER: I named it that because the treaty is important to us to reserve our rights.

You see, back in 1836 the tribes gave away a huge chunk of land – one-third of the state of Michigan. In return they kept the right to hunt and fish. But much later, in the 1960s, the state of Michigan started heavily regulating commercial fishermen, including tribes, limiting where and how they fished.

John Bailey was a tribal leader at the time and says the regulations hurt the tribes.

BAILEY: Economically it would destroy us. And it would destroy us as Indian people because it’s something that has been passed down generation to generation.

Inspired by the Civil Rights movement in the south, tribes began using non-violent civil disobedience to protest the regulations. They ignored state fishing restrictions and said to the authorities, come arrest me.

According to John Bailey, a lot of whites didn’t react well.

BAILEY: One of the groups actually took pictures of Indian fisherman and flooded the state with wanted posters: Spear an Indian, Save a Trout. We had guns pulled on usWe had women verbally and physically assaulted.

Continue reading

Seventh Circuit Oral Argument Audio in Asian Carp Appeal — Michigan v. U.S. Army Corps


Near the end of the argument, Judge Wood responded to an industry lawyer with this:

“On the one hand you have commerce; on the other hand you have the planet.”

OP/Ed on Asian Carp Debacle

An excerpt from the Traverse City Record Eagle:

It has become abundantly clear that until some kid with a fishing pole can stand on a breakwater in Frankfort and haul in a 100-pound Asian carp (or maybe get hauled in himself) the federal government will continue to deny the big fish have gotten into Lake Michigan.

That may be a bit of an exaggeration — they might cede the claim if some guy in a rowboat off Chicago hauls one in first — but the point is the same: Money trumps everything, including common sense, appeals to protect the environment, expert opinion and, of course, science.