A federal court in Illinois has dismissed a complaint filed against the U.S. Army Corps of Engineers (Corps) seeking to compel the agency to implement barriers to prevent the Asian carp from migrating into the Great Lakes. Michigan v. Corps, No. 10-4457 (N.D. Ill. 12/3/12). Michigan, Minnesota, Ohio, Pennsylvania, and Wisconsin filed suit in 2010 seeking to force the Corps to close the Chicago Area Waterway System, which creates an artificial connection between the Mississippi River basin and the Great Lakes.
While acknowledging the threat of the invasive Asian carp, the court determined that the Corps is congressionally mandated to maintain navigation between the Great Lakes and the Mississippi River basin but lacks authority to close the interconnecting waterway. “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.” The court suggested that the state plaintiffs might be able to make out a claim under the Administrative Procedure Act and public nuisance theory “based on acts or omissions of the defendants that are not explicitly required by law.” The court allowed the states to re-plead their complaint to assert such causes of action.