For the City-Times

The 7th Circuit Court of Appeals on Monday affirmed the Northern District Court of Illinois decision to dismiss the public nuisance action brought by five Great Lakes States, including Wisconsin, which demanded the U.S. Army Corps of Engineers take adequate steps to prevent Asian carp from entering Lake Michigan through the Chicago Area Waterway System (CAWS). 

But the circuit court did so after rejecting the district court’s and the Army Corps’ reasons for the dismissal, instead holding that the threat was not imminent enough in light of more recent actions being taken to prevent the Asian carp invasion.

The district court had accepted the Army Corps’ argument that it had no obligation to stop the invasion due to its mandate to operate the CAWS.  The district court also held that the States’ demand to separate the CAWS from Lake Michigan was a remedy that could not be provided.  The circuit court rejected these arguments, leaving open the potential for a future lawsuit if the Army Corps does not maintain its diligence to prevent Asian carp entry into Lake Michigan.

“Of course, we are disappointed the court dismissed our case on the grounds that Asian carp on the doorstep of Lake Michigan does not pose an adequate imminent threat to Lake Michigan,” Attorney General J.B. Van Hollen said.  “We believed when we filed this action, and continue to believe, the current threat this invasive species poses to Lake Michigan is sufficient to warrant legal action,” he said.

“The court rejected the U.S. Army Corps of Engineers’ argument that it has no responsibility to run Chicago Area Waterway System in a way that would prevent invasive species from entering the Great Lakes.  This is an important outcome, and I am pleased the court went on to invite our filing of a subsequent public nuisance action in the event the Army Corps fails to take adequate measures to prevent Asian carp from entering Lake Michigan,” Van Hollen said.

The other states that filed the lawsuit were Michigan, Minnesota, Ohio and Pennsylvania.  No decision has been made as to whether to seek review by the U.S. Supreme Court.

Decision from the U.S. Court of Appeals for the Seventh Circuit