Federal court denies states’ request for preliminary injunction to halt invasive Asian carp

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 30, 2011 – Noting that federal and state agencies are already mounting efforts to halt the migration of invasive Asian carp into Lake Michigan, the U.S. Court of Appeals for the Seventh Circuit recently rejected Wisconsin and other states’ request for a preliminary injunction.

Wisconsin, Michigan, Minnesota, Ohio, and Pennsylvania sued the U.S. Army Corps (Corps) of Engineers and the Metropolitan Water Reclamation District of Greater Chicago (District) – which together own and operate the Chicago Area Waterway System (CAWS) – alleging the Corps and the District are not doing enough to prevent invasive carp from moving into the Great Lakes.

Failure to take more action, like imposing physical barriers throughout the CAWS, threatens public welfare in violation of the federal common law of public nuisance, the states argued. The preliminary injunction would require the Corps and the District to take certain measures before a trial on the merits.

The district court had denied the states’ request for a preliminary injunction, concluding that the problem had not yet advanced to present an immediate threat. The states immediately appealed.

But in State of Michigan et. al. v. U.S. Army Corps of Engineers, et. al., No. 10-3891 (Aug. 24, 2011), a three-judge panel ruled that given current measures in place to protect the Great Lakes from invasive carp, the substantial costs involved in granting a preliminary injunction are not warranted.

“In our view, the plaintiffs presented enough evidence at this preliminary stage of the case to establish a good or perhaps 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,” wrote Judge Diane Wood.

“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 appeals panel explained that state and federal governments have already mounted full scale efforts to stop advancement of invasive Asian carp from the Mississippi River, and “this effort diminishes any role that equitable relief would otherwise play.”

For instance, the panel noted the existence of the Aquatic Nuisance Species Task Force and the Asian Carp Regional Coordinating Committee (ACRCC), which is designed to stop the migration of invasive carp. ACRCC has facilitated, among other measures, establishment of electronic barriers to keep fish out of the CAWS, a system of cannels, waterways, locks and dams.

The states asked the court to authorize the temporarily closing of locks, the installation of screens over gates that control water flow, the use of block nets to stop fish migration, the use of rotenone to poison fish, and the acceleration of studies aimed at stopping Asian carp migration.

Before ruling in favor of the defendants, the panel examined the harm that instituting such measures would place on the defendants, primarily the U.S. Army Corps of Engineers and the City of Chicago.

“This overview demonstrates that the preliminary injunction the states have requested would impose substantial costs, yet given the state of the current record, we are not convinced that the preliminary injunction would ensure much of a reduction in risk of the invasive carp establishing themselves in Lake Michigan in the near future,” Judge Wood wrote.

However, the panel noted the new evidence could come to light that could require more drastic action to prevent the advancement of Asian carp into Lake Michigan, and the district court would have the authority to revisit the question of whether a preliminary injunction is warranted.