State of Michigan v. U.S. Army Corps of Engineers and City of Chicago

Asian carp are a family of fast-growing freshwater fish that were initially introduced to the US in the 1970s to help wastewater and aquaculture operations keep their waters clean. Due to flooding and accidental release, these carp quickly got into the Illinois, Missouri and Mississippi Rivers, laying hundreds of thousands of eggs at a time and emerging as an invasive species. The dangerous and invasive nature of Asian carp stems from their ability to  out-compete other fish, lower water quality for other organisms, and jump to avoid predators (which has led to numerous boating accidents/damages). Anatomically, Asian carp can  exceed 100 pounds and be up to four feet in length. Because they can jump, these carp are able to surpass certain barriers, such as dams, that are successful in deterring other species. Experts worry that if the carp were to make their way into the Great Lakes, they would devastate the area’s $7 billion/year fishing industry.

Michigan, Minnesota, Ohio, Pennsylvania and Wisconsin originally filed a lawsuit in July 2010 against the U.S. Army Corps of Engineers and Chicago Water District in federal court. These Great Lakes states sued the federal government in an attempt to force them to enact a permanent ecological separation of the Great Lakes from the Mississippi River basin at Chicago to stop the spread of the invasive carp into the Great Lakes. The original suit includes two claims:

1. Public Nuisance: By not stopping the spread of invasive carp into the Great Lakes, the Corps is allowing irreversible damage to the aquatic resources of the Great Lakes.
2. The Administrative Procedures Act: this act allows legal challenges to federal agency decisions that are arbitrary or unlawful.

The federal District Court ruled against the states. On December 16 2020, the Great Lakes plaintiffs appealed the District Court decision that denied their injunction. On August 24, 2011, the Court of Appeals affirmed the District Court’s decision, and when the states appealed one more time to the Supreme Court, the court once again denied their petition. On January 20, 2012, the defendants filed a motion on the District Court level to dismiss the claims of the states, which was approved on the grounds that congressional action would have to be taken to approve the states’ plan. The states appealed to the Court of Appeals on December 13, 2012. While the court rejected the District Court’s reasoning, it held that the carp did not pose an “immediate” threat to the lakes, and that the possibility of receiving relief from the federal government would open up as a greater threat was posed.

Since then, local authorities, such as the Great Lakes Fishery Commission, have been combating the spread of this invasive species by continuing to follow the Management and Control Plan for Bighead, Black, Grass, and Silver Carps in the United States, which was made in 2007.  This plan was made in conjunction with several federal, state, and local agencies and underscores the importance of preventing the spread of the carp. However, the carp continue to invade regions surrounding the Great Lakes and threaten their vulnerable ecosystems: on March 13, 2020, 51 invasive carp were found on the southeastern Minnesota-southwestern Wisconsin border, the largest number found significantly upstream of the Mississippi.