Judge Robert Dow of the US District Court in Chicago heard oral arguments on October 18, 2010 in the case, State of Michigan, et al. v. U.S. Army Corps of Engineers, et al., Case No. 1:10-cv-04457 (N.D. Ill.). This week he stated that he might issue his decision as early as December.
Five Great Lakes states (Michigan, Wisconsin, Minnesota, Ohio, and Pennsylvania) joined together and filed suit against the U.S. Army Corps of Engineers, seeking immediate action to separate the lakes from the Chicago Area Waterway System (CAWS).
The issues being considered include the plaintiffs’ claims that the Great Lakes ecosystem and the $7 billion fishing industry face imminent danger. The plaintiffs have testified and provided witnesses showing that DNA from Asian carp was detected in 60 water samples. They are seeking temporary closure of the navigational locks connecting the CAWS to Lake Michigan as an immediate remedy. Ultimately, plaintiffs request permanent separation of the Mississippi River and the Great Lakes.
The defendants argue that the science behind environmental DNA is unproven.
Defendants also raise various legal considerations that have nothing to do with Asian Carp. These issues may prevent the US District Court from ruling in the Plaintiff’s favor.
One of several is defendants’ argument that the states’ common law nuisance claims may not be brought against the federal government under the doctrine of sovereign immunity. The plaintiffs maintain that they are seeking equitable relief and thus sovereign immunity is waived under Administrative Procedure Act (APA), 5 U.S.C. § 702.
Furthermore, a ruling in the plaintiffs’ favor in this matter would result in a requirement imposed on several agencies to take action different than what they decided to do on their own as a body. Federal courts typically do not like to get involved in the decision-making of such agencies by issuing an arguably broad injunction. This consideration may likewise affect the judge’s decision.
While all parties are concerned about the threat of the Asian Carp to the great lakes; the judge in this instant case has many issues to consider, including those outside of the scope of the protecting the lakes from Asian Carp.
In the interim, the fight against Asian Carp continues. The U.S. Army Corps of Engineers issued its press release on October 29, 2010 announcing the completion of the barricades along the Des Plaines River and I&M Canal. Read the full press release here.